Appeal Justices Can Return To Conclude Part-Heard Matters After Elevation By Yemi Akinseye-George

The Court of Appeal has upheld section 396(7) of the
Administration of Criminal Justice Act (ACJA)2015.

The Lagos Division of the Court on Wednesday 24th April, 2019 in
CA/L/1043C/2018 in a well-considered judgement delivered by Hon.
Justice M.L. Garba, JCA gave a boost to one of the innovative
provisions of the ACJA 2015 embodied in section 396(7) to the
effect that a judge who has been elevated to the Court of Appeal
may be given dispensation to conclude part-heard matters being
handled by him before his elevation.

Whilst many observers have hailed this innovative provision as
capable of reducing delay caused by elevation of trial judges to
the Court of Appeal others wondered how the appellate court would
view the provision. Some even argued that this ACJA provision is
unconstitutional, citing the case of Ogbunniya v. Okudo in aid of
their argument. This was a case where the Supreme Court annulled a
judgement delivered in respect of a trial by a judge after his
elevation to the Court of Appeal. However, in a robust judgement,
delivered in Lagos in the cases of Udeogu v FRN, Orji Uzor Kalu v.
FRN and others, Slok Nig. Ltd. v. FRN and Others, the Court of
Appeal unanimously endorsed  the fiat given by the President
of the Court, Bulkachuwa, JCA to Hon. Justice Idris to enable the
latter conclude several part-heard matters pending before him when
he was elevated to the Court of Appeal. Fearing that these
part-heard highprofile cases and others will be unduly delayed or
even frustrated if they were assigned to another trial judge to
start then de novo, after Justice Idris’s elevation, the PCA
granted a fiat to Justice Idris to conclude them.

The judge, now a Justice of the Court of Appeal utilized the
fiat and successfully concluded several pending cases. He even
sacrificed his vacation to enable him to conclude the cases. When
challenged, he simply referred the jurisdictional objections to the
Court of Appeal rather than delivering an interlocutory ruling on
the objection. But his Lordship, rightly did not stay Proceedings
in the cases. He was therefore able to conclude several matters
within a short time. This is a highly cerebral approach to the
implementation of the ACJA. The Centre for Socio-Legal Studies
(CSLS) recommends such to other justices who may still be
entertaining doubts about the ACJA.

In one of the cases, a high profile defendant who had applied
for such a fiat to be given to the judge, later made a u-turn to
challenge the validity of the fiat when the ruling delivered by
Idris J turned out to be unfavorable to the defendant.

In approving the ACJA provision, Garba JCA rightly stated:
“Novel and even absurd as it may be, the provisions of section
396(7) of the ACJA, apparently vests the requisite power and
authority to the Hon. Justice M.B. Idris, JCA, to sit and exercise
the jurisdiction of the Lower Court for the purpose of concluding
the part heard criminal matters he had commenced but did not
conclude as a Judge of the Lower Court before his elevation to the
Court of Appeal’ The court distinguished the post ACJA cases from
the older cases like Ogbunniya v. Okudo which were based on the
state of the law at the material time when there were no statutory
provisions, such as section 396(7) of ACJA, allowing, permitting or
authorizing Justices of the Court of Appeal to go back to the court
from which they were elevated, to conclude the matters they
commenced, but could not conclude before their elevation.

This approach of the Court of Appeal is progressive and
consistent with the overarching objectives of the ACJA 2015 as well
as the Constitution of the Federal Republic of Nigeria, 1999(As
amended) on the issue of speedy trial. This decision is laudable as
it is consistent with the current attitude of the Courts which has
been quite favorable to the innovative provisions in the ACJA.

Yemi Akinseye-George, Centre for Socio-Legal Studies
reporting

Dated May 5, 2019