Some people talk politics. Others dwell on sentiments, fiction
and propaganda. Most humbly, I talk law, based on facts. Cold, hard
facts. History guides me. Posterity is the judge. Events always
vindicate me. This has been the trajectory of my life. Almighty
God, I thank you.
The Supreme Court of Nigeria has just vindicated my two year
struggle that provisions of the Administration of Criminal
JusticeSystem (ACJA) are inferior to the overriding powers of the
Constitution, the grund norm and font etorigo of our democratic
dispensation. A full seven man panel of the apex court presided
over by Justice AminaAugie, in a lead judgment delivered by Justice
EjembiEko, nullified and set aside the unfair and unjust conviction
of Chief Orji UzorKalu. Kalu had been sentenced to 12 years
imprisonment by the Hon. Justice Mohammed Idris; a judgement that
was upheld by the Court of Appeal. The Supreme Court has now
reaffirmed that a Justice of the Court of Appeal cannot operate as
a judge of the Federal High Court. It therefore ordered a fresh
trial by another Judge.
BRIEF BACKGROUND FACTS
On 25th September, 2018, I
filed a motion before Justice Mohammed Idris, on behalf of Orji
UzorKalu, prayerfully requesting the erudite Justice (Judge?) to
recuse and disqualify himself from further trying Kalu, as he
(Justice Idris), had been elevated to the Court of Appeal
on 22nd June, 2018. The
following day, 26th September,
2018, I argued the motion in proceedings that lasted for
about 4 hours. The pith of my argument was that Justice Idris,
having been elevated to the Court of Appeal, was no longer
qualified to sit as a Judge of the Federal High Court, and was thus
disqualified from trying Kalu. I contended
that section 396
(7) of the ACJA which permits a
High Court Judge elevated to the Court of Appeal to continue with
and conclude a part heard matter was in gross conflict with the
provisions of sections 1(1), 1(3), 238(2), 239, 240,
250(2) and 253of the 1999
Constitution, and therefore liable to be struck down.
I cited, inter alia, the earlier Supreme Court case
of Ogbuanyinya& 5 Ors v. Obi
Okudo (1979) 9 S.C 32. I therefore urged the court to
remit the case file back to the Chief Judge of the Federal High
Court, for reassignment to another Judge. The learned trial Judge
in a very brief ruling held that though my argument
was “compelling and the issues raised recondite and
paramount”, he would still go ahead and hear the case
since the same issue had earlier been raised (albeit orally) and he
had overruled same. He concluded that since his earlier ruling on
the matter was already being challenged at the Court of Appeal, he
would go on with the trial. He therefore adjourned the matter to
the following day, 27th September,
2018, for hearing. On
that 27th September, however,
the court adjourned the “matter sine die, considering
all the factors surrounding the case, fiat and the motion argued
yesterday”.
The case was therefore put in abeyance for a while, till the
fiat earlier issued to the trial judge was again renewed. He thus
continued with the trial and convicted Kalu, a judgment that has
just been finally set aside by the apex court.
However, because of the serious constitutional issues involved
in the matter, I did not rest on my oars.
On 29th November,
2018 and 5th December,
2018, I took on the issues headlong in a two part series
in my “HARD FACTS” Wednesday weekly
column in the Sun Newspaper,
titled, “The Constitutional validity or otherwise of
an elevated Judge continuing with part heard matters at the lower
court”.
I also wrote a four part serialization in my weekly column in
the Lawyer pages of Thisday
newspaper, “TALKLING CONSTITUTIONAL
DEMOCRACY”, on the 4th,
11th,
18thand 25th of December,
2018.
I DID NOT HANDLE THE CASE ON APPEAL
For the records, I was not the Counsel who argued the appeals at
the Court of Appeal and Supreme Court, which had arisen from the
trial judge’s earlier refusal to recuse himself based on an oral
application. This was before my argument
on 26th September,
2018, based on my fresh formal
motion filed 25th September,
2018. I genuinely believe that justice has been finally
served.
Below is my earlier complete write-up on the legal position
which has just been vindicated and upheld by the Supreme Court.
(See Thisday (Lawyer
pages) of 4th,
11th,
18thand 25th December,
2018). Kindly read on.
THE CONSTITUTIONAL VALIDITY OR OTHERWISE OF AN ELEVATED
JUDGE CONTINUING WITH PART HARD MATTERS AT THE LOWER
COURT
INTRODUCTION
It is no longer news that many Judges who have been elevated to
the Court of Appeal from the various High Courts and Federal High
Courts across Nigeria are still continuing with the hearing of
matters that were part heard before their elevation. What is
perhaps not known to most Nigerians is that such Judges were
actually, on the 22nd of June,
2018, elevated to the Court of Appeal from the said lower
courts.
In insisting on trying such part heard matters at all
cost, come sun, come rain, the judges are perhaps relying on
section 396(7) of the Administration of Criminal
Justice Act (ACJA), which came into effect on
the 15th of May,
2015. The section which was passed, perhaps in good
faith, to prevent prolonged cases being heard de novo, provides as
follows:
“Notwithstanding the provision of any other law to the
contrary, a judge of the High Court who has been elevated to the
Court of appeal shall have dispensation to continue to sit as a
High court Judge, only for the purposes of concluding any
part-heard criminal matter, pending before him at the time of his
elevation and shall be concluded within reasonable time, provided
that this section shall not prevent him from assuming duty as a
Justice of the Court of Appeal”.
THE ISSUE FOR DETERMINATION
The question that begs for answer is whether, a Judge, having
been elevated to the Court of Appeal, can still sit to try cases at
the High Court or Federal High Court, relying on section 396(7) of
the ACJA. Our humble answer is in the negative. For starters,
section 397(7) ACJA appears to be a frontal attack and violation
of sections 238(2), 240, 250(2) and
253 of the Constitution of the Federal Republic of
Nigeria, 1999, as altered and decided cases on the subject matter.
To that effect, the section is null and void by virtue
of section 1(1) and section
1(3) of the said 1999 Constitution, which provide as
follows:
- The Constitution is Supreme and its provisions shall have
binding force on all authorities and persons throughout the Federal
Republic of Nigeria. - ………………..
- If any other law is inconsistent with the provisions of the
Constitution, this Constitution shall prevail and that other law
shall to the extent of the inconsistency be void”.
See the cases of AG ABIA STATE VS AG
FED. (2002) 6 NWLR (PT. 763) 204
and ABACHA VS FAWEHINMI (2000) 4 SC (PT.
11), PAGE 1.
By virtue of section 6 of the 1999
Constitution, as altered, the judicial powers of the
federation are vested in the courts of law as established by the
Constitution. By section 6(5) thereof, the
Court of Appeal is created as one of the superior courts of record.
The jurisdiction of the Court of Appeal is as provided for
in sections 238 – 240;
with section 248 giving the president of
the Court of Appeal powers to make rules regulating the court’s
practice and procedure.
THE ORIGINAL AND APPELLATE JURISDICTION OF THE COURT OF
APPEAL
By virtue of sections 239 and 240 of the
Constitution, the original and appellate jurisdiction of
the Court of Appeal to which these Judges have been elevated
since June, 22, 2018, do not extend to the
hearing or trial viva voce, of criminal matters pending before the
High Court or Federal High Court. Section 239 deals with its
original jurisdiction, and it provides as follows:
“Subject to the provisions of this Constitution, the
Court of appeal shall, to the exclusion of any other court of Law
in Nigeria, have original jurisdiction to hear and determine any
question as to whether –
Any person has been validity elected to the office of
President of Vice President under this Constitution; of the term of
office of the president or Vice- President has ceased;
or
The office of president or Vice-President has become
vacant”.
Section 240 of the Constitution of the
Federal Republic of Nigeria, 1999, as altered, on the other hand,
which deals with the appellate jurisdiction of the Court of Appeal,
provides as follows:
“Subject to the provisions of this Constitution, the
Court of Appeal shall have jurisdiction to the exclusion of any
other court of law in Nigeria, to hear and determine appeals from
the Federal High Court, the National Industrial Court, the High
Court of the Federal Capital Territory, Abuja, High Court of a
State, Sharia Court of Appeal of the Federal Capital Territory,
Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal
of a State and from decisions of a court martial or other tribunals
as may be described by an Act of the National
Assembly”.
It is incomprehensible why trial judge would insist on
continuing with part heard matters six whole months after their
colleagues with whom they were sworn in and with whom they took
oath of office as Justices of the Court of Appeal should still
descend to the lower Bench and belittle themselves by answering the
title “Judge of the High Court” or “Judge of the Federal High
Court”, when their appropriate title has since changed to “Justices
of the Court of Appeal”,
since 22nd June, 2018, when
they vacated their High Court or Federal High Court seats
upon elevation to the Court of Appeal.
The Federal High Court that still harbours some these promoted
Judges has sections 251 and 252 dealing
with its jurisdiction; whilst sections
249-254 deal with appointment of its judicial
officers. By virtue of section 253 of
the Constitution, “the Federal High Court shall be
duly constituted if it consists of at least one Judge of that
Court”. This means that no Justice of the Court of Appeal
shall climb down from his exalted position to assume duties as one
of the Judges of the Federal High Court, for the purpose of trying
a charge.
The Court of Appeal, on the other hand, has section
239(2) guiding its composition. It provides that the
Court of Appeal shall be duly constituted if it consists of at
least three justices of the Court of
Appeal”. This means, for example, that no Justice of
the Court of Appeal shall exercise the judicial powers donated to a
judge of the Federal High Court as envisaged
in sections 251 & 252 of the
Constitution, he not being a Judge of the said court as provided
for in section 253 of the Constitution.
The original and appellate jurisdiction of the Court of Appeal as
provided for in sections
239 and 240 of the
Constitution, respectively, do not extend to the hearing of
criminal matters at the High Court or Federal High Court, in its
original jurisdiction.
HOW DO WE ADDRESS SUCH JUDGES?
By the way, how would we address such elevated Judges still
trying charges before the lower court? Are we going to begin to
address such an elevated Judge as “My lord, Justice of the Court of
Appeal, but sitting here as Judge of the High Court/Federal High
Court to try this charge”?; Or as “My Lord, Judge of the High
Court/Federal High Court since elevated to the Court of Appeal, but
donated to the High Court/Federal High Court to continue the trial
of this Charge”? How will an elevated judge who tries a matter at
the lower court from which he has been elevated sign his judgment?
If he signs as “Justice of the Court of Appeal”, the entire
Judgment is liable to be set aside for being illegal,
unconstitutional and amounting to a complete nullity. If he signs
as “Judge of the High Court”, or “Judge of the Federal High Court”,
he lies and is liable to the offence of perjury, having taken the
judicial Oath of office as Justice of the Court of Appeal” as
prescribed in the 7th Schedule to the Constitution.
See the cases of TERYTEX NIG.
LTD v. NPA (1988)LPELR-20265(CA), A-G,
EKITI V. C.O.P. EKITI STATE (2018)
LPELR-4421(CA).
I humbly submit that by the judicial Oath of office as contained
in the 7th Schedule to the Constitution, which the
elevated judex has sworn to, he vows to perform his duties
faithfully and in accordance with the provisions of the
Constitution. It is our respectful submission that from the
22nd day of June, 2018, when various Judges of the
High Court and Federal High Court were sworn in as Justices of the
Court of Appeal, in accordance with the judicial oath as prescribed
in the 7th Schedule to the 1999 Constitution, they
automatically ceased to be Judges of the High Court or Federal High
Court. Afortiori, they also ceased to have jurisdiction to continue
to try matters which they ad hitherto handled before their
elevation. The judges having been elevated as Justices of the Court
of Appeal in line with the provisions of section
238(2) of the Constitution, they cannot, under any
guise, continue to sit as judges of the High Court or Federal High
Court. They lack competency and jurisdiction to try such
matters.
By virtue of section 239 of the Constitution, the Court of
Appeal, both in its original and appellate jurisdiction, has powers
to hear and determine cases if it is composed of not less than
three Justices of the Court of Appeal. This means that no such
Justice can exercise the judicial powers of the High Court/Federal
High Court, in the same way that no Judge of the High Court/Federal
High Court shall exercise judicial powers specifically reserved for
the Court of Appeal. To underscore the enhanced and upgraded status
of a judicial officer elevated to the Court of Appeal, he is
usually referred to as “Justice of the Court of Appeal” (like his
counterpart, “Justice of the Supreme Court”); whereas his
counterpart at the lower Bench from which he has vacated is still
simply referred to as “Judge of the High Court/ Federal High
Court”. This is why section 3(2) of the Court of Appeal Act
provides, most unambiguously, that:
“The President shall rank equal to a Justice of the
Supreme Court and the other Justices of the Court of Appeal rank
next to the Justices of the Supreme Court and equal to the Chief
Judge of the Federal High Court”.
This shows that Justices of the Court of Appeal are superior to
the judges of the High Court/Federal High Court. They can upturn
their judgments. The hierarchical structure of Nigerian superior
courts identified in section 6 of the Constitution is inviolate and
immutable. It is to enable justice travel on its legs from the High
Court/Federal High Court, to the Court of Appeal, and then to the
Supreme Court. Indeed, the Court of Appeal does not hear and
determine criminal cases by calling witnesses viva voce, or writing
lone Judgments. This is amplified by sections 15, 18,
19 and 26 of the Court of Appeal Act.
It is humbly submitted that once a judicial officer has been
elevated to a higher court, he immediately and automatically shreds
the toga of his original status as a Judge of the lower Bench. He
ceases equality with this former peers who were not so elevated. He
becomes a new creature. He dorns the garment of 2
Corinthians 5:17.
“The old things have passed away, behold, the new has
come into being if then any be in Christ, he is a new creature: old
things are passed away, behold all things are become new”.
The hallowed chambers and court precincts of his former court
become forbidden zones of operation, having subscribed to the oath
of office of his new position.
Aside
the 7th Schedule to the
Constitution, section 290(1) thereof
prohibits a person appointed to judicial office from performing the
duties of his office until he has first declared his assets and
liabilities as prescribed by the Constitution. He must also
subsequently take and subscribe to the Oath of allegiance and the
judicial Oath. The said judicial oath can be found in
the 7th Schedule as
follows:
“I, …… do solemnly swear/affirm that I will be
faithful and bear true allegiance to the Federal Republic of
Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme
Court/President/Justice of the Court of Appeal/Chief Judge/Judge of
the Federal High Court/Chief Judge/Judge of the High Court of the
Federal Capital Territory, Abuja/Chief Judge of …… State/Judge of
the High Court of …… State/Grand Kadi/Kadi of the Sharia Court of
Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of
the Sharia Court of Appeal of …. State/President/Judge of the
Customary Court of Appeal of the Federal Capital Territory,
Abuja/President/Judge of the Customary Court of Appeal of ………State.
I will discharge my duties, and perform my functions honestly, to
the best of my ability and faithfully in accordance with the
Constitution of the Federal Republic of Nigeria and the law, that I
will abide by the Code of Conduct contained in the Fifth Schedule
to the Constitution of the Federal Republic of Nigeria; that I will
not allow my personal interest to influence my official conduct or
my official decisions; that I will preserve, protect and defend the
Constitution of the Federal Republic of Nigeria.
So help me God”.
It amounts to a grave contradiction in terms for any judicial
officer who has subscribed to the judicial Oath as Justice of the
Court of Appeal to literally have a free fall and descend to the
lower court to hear uncompleted, but pending cases. Such an act is
not only illegal and unlawful, it is unconstitutional, null and
void.
Inthecase of CHUKWUMA V. NWONYE (2009) LPELR 4997
(CA), theintermediate
court stamped imprimature as
follows:
“Oath is defined as “a solemn declaration, accompanied
by a swearing to God or a revered person or thing, that one’s
statement is true or that one will be bound to a promise.” The
implication or legal effect therefore of an oath is to subject the
person who took an oath to penalties for perjury in the event that
the testimony turns out to be false.” Per ARIWOOLA, J.C.A (Pp.
12-13, paras. A-B)”.
IMPORTANCE OF JURISDICTION
For the avoidance of doubt, jurisdiction is the spinal cord and
live wire of any court proceedings. Where the court lacks
jurisdiction, the entire trial however, beautifully conduct,
evaporates into shambles, becomes a total nullity and is consigned
to the vehicle of judicial oblivion.
In the case of NDIC V. CBN &
ANOR (2002) LPELR-2000(SC), the apex court held as
follows:
“Jurisdiction is the very basis on which any tribunal
tries a case; it is the lifeline of all trials. A trial without
jurisdiction is a nullity…. This importance of jurisdiction is the
reason why it can be raised at any stage of a case, be it at the
trial, on appeal to Court of Appeal or to this court; a fortiori
the court can suomotu raise it. It is desirable that preliminary
objection be raised early on issue of jurisdiction; but once it is
apparent to any party that the court may not have jurisdiction, it
can be raised even viva voce as in this case. It is always in the
interest of justice to raise issue of jurisdiction so as to save
time and costs and to avoid a trial in nullity.” Per UWAIFO, J.S.C.
(Pp.16-17, paras. G-B)”.
Similarly, in the case of AKERE & ORS. V. THE
GOVERNOR OF OYO STATE & ORS. (2012) LPELR-7806(SC),
apex court further buttressed on this issue as follows:
“The over-riding importance of jurisdiction cannot be
overstated. It is the life blood of any litigation before a Court
properly so-called. It is so fundamental that when a Court has no
jurisdiction, any action taken by that Court will be a nullity
notwithstanding the fact that the proceeding was well conducted.
See Osakue v. Federal College of Education Asaba&Anor (2010) 5
SCM 185, 201-202. See also Madukolu v. Nkemdilim (1962) 1 ANLR (Pt.
4) 587 for the principles which define the jurisdiction or
competence of a Court to entertain a particular matter.”PER NGWUTA,
J.S.C. (Pp.23-24, Paras.G-C)”.
In the causacelebre on jurisdictional
issues, MADUKOLU V. NKEMDILIM 2 SCNLR
341, (1962) 1 ANLR (Pt. 4) 587, the apex court laid down the
following conductions which must be wholly present before a court
can be deemed to here jurisdiction:
(a) it is properly constituted with respect to the
number and qualification of its members;
(b) the subject matter of the action is within its
jurisdiction;
(c) the action is initiated by due process of law
and
(d) any condition precedent to the exercise of its
jurisdiction has been fulfilled.’
What the ACJA in section 396(7) has audaciously, but
vaingloriously attempted to do is, rather than blow muted trumpet
and defer to a superior law, ie, the Constitution, the
fonsestorigo, the grund norm and the “Kabiyesi”, “Eze” and “Emir”
of our laws, it seeks to torpedo the Constitution itself. Such a
law as the ACJA must suffer a merciless strike down under section
1(3) of the said Constitution. The ACJA has no powers to grant dual
citizenship to a judicial officer as both Judge of the High
Court/Federal High Court and Justice of the Court of Appeal.
It is akin to the bat that claims to be a mammal (of the order
of Chiroptera), because it has teeth, ears, mammary glands,
produces milk to feed its young and with forelimbs like all animals
do. It simultaneously claims to be a bird because it can fly like
all birds.
The sore question that begs for an answer is whether a Judge of
the High Court or Federal High Court lawfully and legally elevated
to the Court of Appeal can still maintain dual status and exercise
dual judicial powers over cases in both the Court of Appeal (as a
Justice) and the High Court or Federal High Court (as a Judge).
This cannot be so.
It is humbly submitted that any elevated judge having lost the
toga of being a Judge of the High Court or Federal High Court, the
proper thing for him to do is for such Justice of the Court of
Appeal to recuse himself, send the case file back to the Chief of
the High Court or Federal High Court, to be reassigned to another
judge of the said High Court or Federal High Court, in line
with section 253 of the Constitution,
which provides for the constitution of the Federal High Court. Such
a Judge must, like Pontius Pilate, wash his hands off the case, to
prevent being accused of undue and special interest in such a
matter. The mere suspicion by a litigant that he is being “tried”
at the trial court by a Justice of the Court of Appeal who lacks
judicial competency to do so is sufficient for such a judge to
recuse himself. Afterall, justice is rooted in confidence.
In MBASMOTEL LTD. V. WEMA BANK PLC. (2013)
LPELR-20736 (CA), the Court of Appeal held as follows:
“We must never lose sight of the fact that justice is
rooted in public confidence and it is essential to social order and
security. It is the bond of society and the cornerstone of human
togetherness. Justice is the condition in which the individual is
able to identify with society, feel at one with it and accept its
rulings. The moment members of the society lose confidence in the
system of administration of justice, a descent to anarchy begins.”
Per ABIRU, J.C.A. (P. 26, Paras. E-G)”.
In JWAN v. ECOBANK & ANOR (2018)
LPELR-45631(CA), the Court of Appeal held as follows:
“Before concluding this appeal, this Court considers it
pertinent to reiterate that it is essential to understand that the
aim of any administration of justice system must be to bring about
justice in the polity. Justice is the first virtue of social
institutions, as truth is of systems of thought. *Justice is rooted
in the confidence that the public repose in the administration of
justice system and it behooves the Courts, therefore, to ensure
that they do not do anything to erode the root of justice*. It is
matters like the present one that leaves the entire judicial system
open to ridicule and the risk of becoming irrelevant to the
aspirations of the people. Uwaifo, JCA (as he then was) made this
point succinctly in State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at
220 thus: “I think we have come a long way in this country to ought
to find no necessity to sound a warning that our sense of approach
to justice in our Courts should not be seen to be in any way
underhand, such as is employed as if to take the society for a
ride. The dispensation of justice is not left to the whims and
caprices of any Judge, founded on shabby reasoning and perfunctory
performance. It is not too much to expect the judiciary to set the
pace in the quest for excellence in the discharge of public duty.
It should be a sort of modulator of varying forces of change in a
socio-political environment towards positive and beneficial ends.
That is the sense in which law is expected to be the catalyst of
societal values, attitudes and development. Much of the living
aspect of the law depends on the alertness of Judges. But if the
judiciary takes a back seat through unsatisfactory input by Judges
even of superior Courts, it will sooner become a lame duck and
irrelevant in the reckoning of the astute and even the common man.”
Per ABIRU, J.C.A. (Pp. 30-32, Paras. F-C).
CAN PARTIES VOLUNTARILY CONFER JURISDICTION ON A
COURT?
I have had the benefit of hearing the argument of some counsel
or appellate Justices still hearing such part heard matters across
Nigeria after their elevation. It is to the effect that Counsel who
are participating in such proceedings actually wrote and requested
that such Justices should continue with the hearing of such cases.
That argument flies in the face, and assaults trite principles of
law. For the avoidance of doubt, parties cannot by consent or
agreement confer jurisdiction on a court where such is not in
existence. I humbly refer to the case of ONNA
TRADITIONAL RULERS COUNCIL & ORS V. UMOREN &
ORS (2018) LPELR 44301(CA), where the Court of appeal
held as follows:
“It is trite that where jurisdiction is absent, parties
cannot by waiver or consent confer jurisdiction on the Court”. Per
OYEWOLE, J.CA.(P. 15, para E).
As held in the case of Prof. Steve
TorkumaUgba&Ors v. Gabriel TorwuaSuswam&
4ors (No. 2) (2012) 6 SC (PT.II)
56, “jurisdiction of courts is granted by statute or
Constitution but not by courts. In which case, no court shall have
jurisdiction to go beyond the provisions of the enabling law.
Otherwise, will be ultra vires”.
Jurisdiction is either granted by the Constitution itself, or by
an enabling statute. It is not assumed or presumed. It is not
gratuitously donated by any of the parties to a dispute. This is
why in the case of JOSIAH AYODELE ADETAYO & 2ORS V.
KUNLE ADEMOLA & 2ORS (2010) 3-5 SC 89, the Supreme
Court emphatically declared that:
“It must be borne in mind always and this is settled
that all the courts in this country, derive their powers and
jurisdiction in particular, by either statute or Constitution which
is the supreme, organic, fundamental law and the grund-norm of this
country”. Per Ogbuagu, JSC.(P. 27, paras. F-G).
The importance of jurisdiction being the lifeline of all trials
is why it can be raised at any stage of a case, be it at the trial,
on appeal to the Court of appeal, or to the Supreme Court. The
court, afortion, can suomotu raise it. It can even be raised viva
voce (per Uwaifo, JSC, in NDIC v
CBN (2002) LPELR 2000 (SC). See
also Akere&Ors v The Governor of Oyo
State (2012) LPELR, 7806 (SC); Anozie v.
Emerenini&Anor (2018) LPELR – 43888
(CA), Chukwuma v. Nwonye (2009) LPELR
4997 (CA).
In the case of ONONYE V. ODITA (2008) 10 NWLR (Pt.
1096)487, the Court of Appeal held follows:
“That the issue of jurisdiction is fundamental is a
matter of trite law and where jurisdiction of a court is
challenged, that issue must immediately be determined by the court
before it embarks on any trial or determination of the action
before it. Unless a court is cloaked with jurisdiction, its
proceedings are rendered a complete nullity, no matter how well the
case was determined. See Madukolu v. Nkemdilim (1962) 1 All NLR
587; Anya v. Iyayi (1993) 7 NWLR (Pt.305) p.290; Iwuagolu v. Azuka
(2007) 5 NWLR (Pt.1028) P. 628; Governor of Gongola State v. Tukur
(1989) 4 NWLR (Pt.117) P. 592; Okoya v. Santilli (1990) 2 NWLR
(Pt.131) p.17”.
PRECEDENTS ON THE UNCONSTITUTIONALITY OF ELEVATED JUDGES
STILL HANDLING THEIR MATTERS AT THE LOWER BENCH
In the causacerebre of OGBUANYINYA & 5 ORS. V. OBI
OKUDO &3ORS (1979) 9SC.32,a similar situation reared its
head before the apex court.
In 1977, Hon. Justice Nnaemeka-Agu, a judge of the Anambra State
High Court was the trial judge in a land matter. On the
13th day of June, 1977, the learned trial Judge
listened to the addresses of Counsel on both sides and adjourned
judgment on the 17th day of June, 1977. Two days
previous to the 17th June, 1977, Hon, Justice
Nnaemeka-Agu was appointed a Justice of the then Federal Court of
Appeal. The argument of the appellant was that as at the
17th of June, 1977, when the learned trial judge
delivered his judgment, he had ceased to be a judge of the High
court of Anambra State.
In July, 1979, the apex court unanimously upheld the argument
that the judgment delivered by Hon. Justice Nnaemeka-Agu on
17th June, 1977, was illegal, null and void. The
judgment was consequently set aside and the case remitted back to
the trial court for trial de novo.
Held the apex court:
“The case was in abeyance during the civil war period
and resurfaced thereafter in the High Court of Anambra State in
1976 before Nnaemeka-Agu, J. (as he then was), with
1st and 2nd defendants reported
dead. Nnaemeka-Agu, J. (as he then was then was) delivered
judgment, which was incompetent as he was then functus
officio, having been appointed sometime in 1977 to the
Federal Court of Appeal.”
The case of ALHAJI AHMED GARBA BICHI &ORS V.
ALHAJI IBRAHIM SHEKARAU & ORS, (2009) LPELR-3874
(CA), where the Court of Appeal held that once a
Judge is elevated to the intermediate court, and takes the oath,
such a Judge cannot continue to sit as a Judge of the lower court,
is also apposite. It is humbly submitted, as stated earlier, that
any elevated judge having lost the oga of being a Judge of the High
Court or Federal High Court, the proper thing for him is for such
Justice of the Court of Appeal to recuse himself, send the case
file back to the Chief Judge of the High Court or Federal High
Court, to be reassigned to another Judge of the said High Court or
Federal High Court, in line with section 253 of the Constitution
which provides for the composition of the Federal High Court.
THE DOCTRINE OF COVERING THE FIELD
The doctrine of covering the field surely applies here. The
Constitution, having taken care of the hierarchy of courts, the
ACJA cannot make incursions into the same area. This doctrine as
espoused by the Supreme Court in the case of LAGOS
STATE v. EKO HOTELS LTD & ANOR (2017)
LPELR-43713(SC), states as follows:
“A convenient place to commence the resolution of this
issue is to examine the application of the doctrine of “covering
the field” as it relates to the powers of the National Assembly and
State Houses of Assembly to make laws. In A.G. OGUN STATE & ORS.
VS. A.G. FEDERATION (1982) NSCC (Vol.13) 1 @ 35 lines 18 – 30, His
Lordship, KayodeEso, JSC stated thus:
“I take the view that when one considers this doctrine,
the phrase “covering it the field” means precisely what it says.
Where a matter legislated upon is in the concurrent list and the
Federal Government has enacted a legislation in respect thereof,
where the legislation enacted by the State is inconsistent with the
legislation of the Federal Government it is indeed void and of no
effect for inconsistency. Where, however, the legislation enacted
by the State is the same as the one enacted by the Federal
Government, where the two legislations are in parimateria I
respectfully take the view that the State Legislation is in
abeyance and becomes inoperative for the period.
The Federal Legislation is in force. I will not say it
is void. If for any reason the Federal Legislation is repealed, it
is my humble view that the;
State legislation, which is in abeyance, is revived and
becomes operative until there is another Federal Legislation that
covers the field”.
This position was given judicial imprimatur by the apex court
in INEC VS. MUSA (2003) 3 NWLR (Part
806) 72, where the court in striking down INEC’S guidelines for
registration of political parties which contradicted the clear
provisions of the Constitution, laid down three guidelines for
testing the validity of provisions of an Act of the Legislature
(NASS). They are:
- The legislative powers of the legislature cannot be exercised
inconsistent with the Constitution where it is so exercised, it is
invalid to the extent of such inconsistency. - Where the Constitution has enacted exhaustively in respect of
any such situation, conduct or subject, a body that claims to
legislate in addition to what the Constitution has omitted must
show that it has derived the legislative accordingly to do so from
the Constitution. - Where the Constitution sets the condition for doing a thing, no
legislation of the National Assembly or of a State house of
Assembly can alter those conditions in any way, different or
indirectly, unless the Constitution itself as an attitude of the
supremacy expressly so authorises.
Since there cannot be two Emirs, Ezes, or Obas in one Palace at
the same time, the ACJA cannot be accommodated in the same hallowed
pantheon of legitimacy and supremacy of laws as the
Constitution.
CONCLUSION
It is clear to me that any judgment delivered by a Justice of
the Court of Appeal acting as a Judge of the High Court/Federal
High Court is unconstitutional, illegal, null and void. Same is
subject to being set aside on appeal. For, when an act is void, it
is void ab initio-and for all purposes.
See, UAC V. MCFOY (1962) AC
152, AKPENE V. CENTRAL
BANK (1977)1 S.C. 47 at 59.
The best route open to judicial officers is for all elevated
Judges to immediately and honourably recuse themselves from further
trial of criminal cases before lower courts. To continue such
trials is to have such judgments set aside on appeal, and cases
ordered to start de novo. That would be inimical to the interest of
the defendant, as he would have been subjected to double jeopardy.
Such a litigant could successfully plead autrefois acquit or
autrefois convict. See the cases of STATE V.
DUKE (2002) LPELR – 6163 (CA); SUNDAY V.
STATE (2017) LPELR – 42140 (CA).
This is one instance where the state (prosecution), is
respectfully urged to make haste slowly, by disbanding such
appellate panels of Justices masquerading as trial Judges, and
allowing all such cases to start de novo. True, justice delayed is
justice denied. However, more significantly, justice hurried is
justice crushed. (See THE CHAIRMAN NATIONAL POPULATION
COMMISSION V. THE CHAIRMAN, IKERE LOCAL GOVERNMENT & ORS,
(2001) 7 S.C. (pt.iii) 90 @ 97-8, 100, TRADE BANK PLC
V. UDEGBUNAM & ANOR (2004) ALL FWLR (PT.200) 1576
@1590 C.A.).
I so humbly submit.”
-Chief Mike Ozekhome SAN, is a Senior Advocate of
Nigeria and foremost Nigeria Human Right Crusader.
Some people talk politics. Others dwell on sentiments, fiction
and propaganda. Most humbly, I talk law, based on facts. Cold, hard
facts. History guides me. Posterity is the judge. Events always
vindicate me. This has been the trajectory of my life. Almighty
God, I thank you.
The Supreme Court of Nigeria has just vindicated my two year
struggle that provisions of the Administration of Criminal
JusticeSystem (ACJA) are inferior to the overriding powers of the
Constitution, the grund norm and font etorigo of our democratic
dispensation. A full seven man panel of the apex court presided
over by Justice AminaAugie, in a lead judgment delivered by Justice
EjembiEko, nullified and set aside the unfair and unjust conviction
of Chief Orji UzorKalu. Kalu had been sentenced to 12 years
imprisonment by the Hon. Justice Mohammed Idris; a judgement that
was upheld by the Court of Appeal. The Supreme Court has now
reaffirmed that a Justice of the Court of Appeal cannot operate as
a judge of the Federal High Court. It therefore ordered a fresh
trial by another Judge.
BRIEF BACKGROUND FACTS
On 25th September, 2018, I
filed a motion before Justice Mohammed Idris, on behalf of Orji
UzorKalu, prayerfully requesting the erudite Justice (Judge?) to
recuse and disqualify himself from further trying Kalu, as he
(Justice Idris), had been elevated to the Court of Appeal
on 22nd June, 2018. The
following day, 26th September,
2018, I argued the motion in proceedings that lasted for
about 4 hours. The pith of my argument was that Justice Idris,
having been elevated to the Court of Appeal, was no longer
qualified to sit as a Judge of the Federal High Court, and was thus
disqualified from trying Kalu. I contended
that section 396
(7) of the ACJA which permits a
High Court Judge elevated to the Court of Appeal to continue with
and conclude a part heard matter was in gross conflict with the
provisions of sections 1(1), 1(3), 238(2), 239, 240,
250(2) and 253of the 1999
Constitution, and therefore liable to be struck down.
I cited, inter alia, the earlier Supreme Court case
of Ogbuanyinya& 5 Ors v. Obi
Okudo (1979) 9 S.C 32. I therefore urged the court to
remit the case file back to the Chief Judge of the Federal High
Court, for reassignment to another Judge. The learned trial Judge
in a very brief ruling held that though my argument
was “compelling and the issues raised recondite and
paramount”, he would still go ahead and hear the case
since the same issue had earlier been raised (albeit orally) and he
had overruled same. He concluded that since his earlier ruling on
the matter was already being challenged at the Court of Appeal, he
would go on with the trial. He therefore adjourned the matter to
the following day, 27th September,
2018, for hearing. On
that 27th September, however,
the court adjourned the “matter sine die, considering
all the factors surrounding the case, fiat and the motion argued
yesterday”.
The case was therefore put in abeyance for a while, till the
fiat earlier issued to the trial judge was again renewed. He thus
continued with the trial and convicted Kalu, a judgment that has
just been finally set aside by the apex court.
However, because of the serious constitutional issues involved
in the matter, I did not rest on my oars.
On 29th November,
2018 and 5th December,
2018, I took on the issues headlong in a two part series
in my “HARD FACTS” Wednesday weekly
column in the Sun Newspaper,
titled, “The Constitutional validity or otherwise of
an elevated Judge continuing with part heard matters at the lower
court”.
I also wrote a four part serialization in my weekly column in
the Lawyer pages of Thisday
newspaper, “TALKLING CONSTITUTIONAL
DEMOCRACY”, on the 4th,
11th,
18thand 25th of December,
2018.
I DID NOT HANDLE THE CASE ON APPEAL
For the records, I was not the Counsel who argued the appeals at
the Court of Appeal and Supreme Court, which had arisen from the
trial judge’s earlier refusal to recuse himself based on an oral
application. This was before my argument
on 26th September,
2018, based on my fresh formal
motion filed 25th September,
2018. I genuinely believe that justice has been finally
served.
Below is my earlier complete write-up on the legal position
which has just been vindicated and upheld by the Supreme Court.
(See Thisday (Lawyer
pages) of 4th,
11th,
18thand 25th December,
2018). Kindly read on.
THE CONSTITUTIONAL VALIDITY OR OTHERWISE OF AN ELEVATED
JUDGE CONTINUING WITH PART HARD MATTERS AT THE LOWER
COURT
INTRODUCTION
It is no longer news that many Judges who have been elevated to
the Court of Appeal from the various High Courts and Federal High
Courts across Nigeria are still continuing with the hearing of
matters that were part heard before their elevation. What is
perhaps not known to most Nigerians is that such Judges were
actually, on the 22nd of June,
2018, elevated to the Court of Appeal from the said lower
courts.
In insisting on trying such part heard matters at all
cost, come sun, come rain, the judges are perhaps relying on
section 396(7) of the Administration of Criminal
Justice Act (ACJA), which came into effect on
the 15th of May,
2015. The section which was passed, perhaps in good
faith, to prevent prolonged cases being heard de novo, provides as
follows:
“Notwithstanding the provision of any other law to the
contrary, a judge of the High Court who has been elevated to the
Court of appeal shall have dispensation to continue to sit as a
High court Judge, only for the purposes of concluding any
part-heard criminal matter, pending before him at the time of his
elevation and shall be concluded within reasonable time, provided
that this section shall not prevent him from assuming duty as a
Justice of the Court of Appeal”.
THE ISSUE FOR DETERMINATION
The question that begs for answer is whether, a Judge, having
been elevated to the Court of Appeal, can still sit to try cases at
the High Court or Federal High Court, relying on section 396(7) of
the ACJA. Our humble answer is in the negative. For starters,
section 397(7) ACJA appears to be a frontal attack and violation
of sections 238(2), 240, 250(2) and
253 of the Constitution of the Federal Republic of
Nigeria, 1999, as altered and decided cases on the subject matter.
To that effect, the section is null and void by virtue
of section 1(1) and section
1(3) of the said 1999 Constitution, which provide as
follows:
- The Constitution is Supreme and its provisions shall have
binding force on all authorities and persons throughout the Federal
Republic of Nigeria. - ………………..
- If any other law is inconsistent with the provisions of the
Constitution, this Constitution shall prevail and that other law
shall to the extent of the inconsistency be void”.
See the cases of AG ABIA STATE VS AG
FED. (2002) 6 NWLR (PT. 763) 204
and ABACHA VS FAWEHINMI (2000) 4 SC (PT.
11), PAGE 1.
By virtue of section 6 of the 1999
Constitution, as altered, the judicial powers of the
federation are vested in the courts of law as established by the
Constitution. By section 6(5) thereof, the
Court of Appeal is created as one of the superior courts of record.
The jurisdiction of the Court of Appeal is as provided for
in sections 238 – 240;
with section 248 giving the president of
the Court of Appeal powers to make rules regulating the court’s
practice and procedure.
THE ORIGINAL AND APPELLATE JURISDICTION OF THE COURT OF
APPEAL
By virtue of sections 239 and 240 of the
Constitution, the original and appellate jurisdiction of
the Court of Appeal to which these Judges have been elevated
since June, 22, 2018, do not extend to the
hearing or trial viva voce, of criminal matters pending before the
High Court or Federal High Court. Section 239 deals with its
original jurisdiction, and it provides as follows:
“Subject to the provisions of this Constitution, the
Court of appeal shall, to the exclusion of any other court of Law
in Nigeria, have original jurisdiction to hear and determine any
question as to whether –
Any person has been validity elected to the office of
President of Vice President under this Constitution; of the term of
office of the president or Vice- President has ceased;
or
The office of president or Vice-President has become
vacant”.
Section 240 of the Constitution of the
Federal Republic of Nigeria, 1999, as altered, on the other hand,
which deals with the appellate jurisdiction of the Court of Appeal,
provides as follows:
“Subject to the provisions of this Constitution, the
Court of Appeal shall have jurisdiction to the exclusion of any
other court of law in Nigeria, to hear and determine appeals from
the Federal High Court, the National Industrial Court, the High
Court of the Federal Capital Territory, Abuja, High Court of a
State, Sharia Court of Appeal of the Federal Capital Territory,
Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal
of a State and from decisions of a court martial or other tribunals
as may be described by an Act of the National
Assembly”.
It is incomprehensible why trial judge would insist on
continuing with part heard matters six whole months after their
colleagues with whom they were sworn in and with whom they took
oath of office as Justices of the Court of Appeal should still
descend to the lower Bench and belittle themselves by answering the
title “Judge of the High Court” or “Judge of the Federal High
Court”, when their appropriate title has since changed to “Justices
of the Court of Appeal”,
since 22nd June, 2018, when
they vacated their High Court or Federal High Court seats
upon elevation to the Court of Appeal.
The Federal High Court that still harbours some these promoted
Judges has sections 251 and 252 dealing
with its jurisdiction; whilst sections
249-254 deal with appointment of its judicial
officers. By virtue of section 253 of
the Constitution, “the Federal High Court shall be
duly constituted if it consists of at least one Judge of that
Court”. This means that no Justice of the Court of Appeal
shall climb down from his exalted position to assume duties as one
of the Judges of the Federal High Court, for the purpose of trying
a charge.
The Court of Appeal, on the other hand, has section
239(2) guiding its composition. It provides that the
Court of Appeal shall be duly constituted if it consists of at
least three justices of the Court of
Appeal”. This means, for example, that no Justice of
the Court of Appeal shall exercise the judicial powers donated to a
judge of the Federal High Court as envisaged
in sections 251 & 252 of the
Constitution, he not being a Judge of the said court as provided
for in section 253 of the Constitution.
The original and appellate jurisdiction of the Court of Appeal as
provided for in sections
239 and 240 of the
Constitution, respectively, do not extend to the hearing of
criminal matters at the High Court or Federal High Court, in its
original jurisdiction.
HOW DO WE ADDRESS SUCH JUDGES?
By the way, how would we address such elevated Judges still
trying charges before the lower court? Are we going to begin to
address such an elevated Judge as “My lord, Justice of the Court of
Appeal, but sitting here as Judge of the High Court/Federal High
Court to try this charge”?; Or as “My Lord, Judge of the High
Court/Federal High Court since elevated to the Court of Appeal, but
donated to the High Court/Federal High Court to continue the trial
of this Charge”? How will an elevated judge who tries a matter at
the lower court from which he has been elevated sign his judgment?
If he signs as “Justice of the Court of Appeal”, the entire
Judgment is liable to be set aside for being illegal,
unconstitutional and amounting to a complete nullity. If he signs
as “Judge of the High Court”, or “Judge of the Federal High Court”,
he lies and is liable to the offence of perjury, having taken the
judicial Oath of office as Justice of the Court of Appeal” as
prescribed in the 7th Schedule to the Constitution.
See the cases of TERYTEX NIG.
LTD v. NPA (1988)LPELR-20265(CA), A-G,
EKITI V. C.O.P. EKITI STATE (2018)
LPELR-4421(CA).
I humbly submit that by the judicial Oath of office as contained
in the 7th Schedule to the Constitution, which the
elevated judex has sworn to, he vows to perform his duties
faithfully and in accordance with the provisions of the
Constitution. It is our respectful submission that from the
22nd day of June, 2018, when various Judges of the
High Court and Federal High Court were sworn in as Justices of the
Court of Appeal, in accordance with the judicial oath as prescribed
in the 7th Schedule to the 1999 Constitution, they
automatically ceased to be Judges of the High Court or Federal High
Court. Afortiori, they also ceased to have jurisdiction to continue
to try matters which they ad hitherto handled before their
elevation. The judges having been elevated as Justices of the Court
of Appeal in line with the provisions of section
238(2) of the Constitution, they cannot, under any
guise, continue to sit as judges of the High Court or Federal High
Court. They lack competency and jurisdiction to try such
matters.
By virtue of section 239 of the Constitution, the Court of
Appeal, both in its original and appellate jurisdiction, has powers
to hear and determine cases if it is composed of not less than
three Justices of the Court of Appeal. This means that no such
Justice can exercise the judicial powers of the High Court/Federal
High Court, in the same way that no Judge of the High Court/Federal
High Court shall exercise judicial powers specifically reserved for
the Court of Appeal. To underscore the enhanced and upgraded status
of a judicial officer elevated to the Court of Appeal, he is
usually referred to as “Justice of the Court of Appeal” (like his
counterpart, “Justice of the Supreme Court”); whereas his
counterpart at the lower Bench from which he has vacated is still
simply referred to as “Judge of the High Court/ Federal High
Court”. This is why section 3(2) of the Court of Appeal Act
provides, most unambiguously, that:
“The President shall rank equal to a Justice of the
Supreme Court and the other Justices of the Court of Appeal rank
next to the Justices of the Supreme Court and equal to the Chief
Judge of the Federal High Court”.
This shows that Justices of the Court of Appeal are superior to
the judges of the High Court/Federal High Court. They can upturn
their judgments. The hierarchical structure of Nigerian superior
courts identified in section 6 of the Constitution is inviolate and
immutable. It is to enable justice travel on its legs from the High
Court/Federal High Court, to the Court of Appeal, and then to the
Supreme Court. Indeed, the Court of Appeal does not hear and
determine criminal cases by calling witnesses viva voce, or writing
lone Judgments. This is amplified by sections 15, 18,
19 and 26 of the Court of Appeal Act.
It is humbly submitted that once a judicial officer has been
elevated to a higher court, he immediately and automatically shreds
the toga of his original status as a Judge of the lower Bench. He
ceases equality with this former peers who were not so elevated. He
becomes a new creature. He dorns the garment of 2
Corinthians 5:17.
“The old things have passed away, behold, the new has
come into being if then any be in Christ, he is a new creature: old
things are passed away, behold all things are become new”.
The hallowed chambers and court precincts of his former court
become forbidden zones of operation, having subscribed to the oath
of office of his new position.
Aside
the 7th Schedule to the
Constitution, section 290(1) thereof
prohibits a person appointed to judicial office from performing the
duties of his office until he has first declared his assets and
liabilities as prescribed by the Constitution. He must also
subsequently take and subscribe to the Oath of allegiance and the
judicial Oath. The said judicial oath can be found in
the 7th Schedule as
follows:
“I, …… do solemnly swear/affirm that I will be
faithful and bear true allegiance to the Federal Republic of
Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme
Court/President/Justice of the Court of Appeal/Chief Judge/Judge of
the Federal High Court/Chief Judge/Judge of the High Court of the
Federal Capital Territory, Abuja/Chief Judge of …… State/Judge of
the High Court of …… State/Grand Kadi/Kadi of the Sharia Court of
Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of
the Sharia Court of Appeal of …. State/President/Judge of the
Customary Court of Appeal of the Federal Capital Territory,
Abuja/President/Judge of the Customary Court of Appeal of ………State.
I will discharge my duties, and perform my functions honestly, to
the best of my ability and faithfully in accordance with the
Constitution of the Federal Republic of Nigeria and the law, that I
will abide by the Code of Conduct contained in the Fifth Schedule
to the Constitution of the Federal Republic of Nigeria; that I will
not allow my personal interest to influence my official conduct or
my official decisions; that I will preserve, protect and defend the
Constitution of the Federal Republic of Nigeria.
So help me God”.
It amounts to a grave contradiction in terms for any judicial
officer who has subscribed to the judicial Oath as Justice of the
Court of Appeal to literally have a free fall and descend to the
lower court to hear uncompleted, but pending cases. Such an act is
not only illegal and unlawful, it is unconstitutional, null and
void.
Inthecase of CHUKWUMA V. NWONYE (2009) LPELR 4997
(CA), theintermediate
court stamped imprimature as
follows:
“Oath is defined as “a solemn declaration, accompanied
by a swearing to God or a revered person or thing, that one’s
statement is true or that one will be bound to a promise.” The
implication or legal effect therefore of an oath is to subject the
person who took an oath to penalties for perjury in the event that
the testimony turns out to be false.” Per ARIWOOLA, J.C.A (Pp.
12-13, paras. A-B)”.
IMPORTANCE OF JURISDICTION
For the avoidance of doubt, jurisdiction is the spinal cord and
live wire of any court proceedings. Where the court lacks
jurisdiction, the entire trial however, beautifully conduct,
evaporates into shambles, becomes a total nullity and is consigned
to the vehicle of judicial oblivion.
In the case of NDIC V. CBN &
ANOR (2002) LPELR-2000(SC), the apex court held as
follows:
“Jurisdiction is the very basis on which any tribunal
tries a case; it is the lifeline of all trials. A trial without
jurisdiction is a nullity…. This importance of jurisdiction is the
reason why it can be raised at any stage of a case, be it at the
trial, on appeal to Court of Appeal or to this court; a fortiori
the court can suomotu raise it. It is desirable that preliminary
objection be raised early on issue of jurisdiction; but once it is
apparent to any party that the court may not have jurisdiction, it
can be raised even viva voce as in this case. It is always in the
interest of justice to raise issue of jurisdiction so as to save
time and costs and to avoid a trial in nullity.” Per UWAIFO, J.S.C.
(Pp.16-17, paras. G-B)”.
Similarly, in the case of AKERE & ORS. V. THE
GOVERNOR OF OYO STATE & ORS. (2012) LPELR-7806(SC),
apex court further buttressed on this issue as follows:
“The over-riding importance of jurisdiction cannot be
overstated. It is the life blood of any litigation before a Court
properly so-called. It is so fundamental that when a Court has no
jurisdiction, any action taken by that Court will be a nullity
notwithstanding the fact that the proceeding was well conducted.
See Osakue v. Federal College of Education Asaba&Anor (2010) 5
SCM 185, 201-202. See also Madukolu v. Nkemdilim (1962) 1 ANLR (Pt.
4) 587 for the principles which define the jurisdiction or
competence of a Court to entertain a particular matter.”PER NGWUTA,
J.S.C. (Pp.23-24, Paras.G-C)”.
In the causacelebre on jurisdictional
issues, MADUKOLU V. NKEMDILIM 2 SCNLR
341, (1962) 1 ANLR (Pt. 4) 587, the apex court laid down the
following conductions which must be wholly present before a court
can be deemed to here jurisdiction:
(a) it is properly constituted with respect to the
number and qualification of its members;
(b) the subject matter of the action is within its
jurisdiction;
(c) the action is initiated by due process of law
and
(d) any condition precedent to the exercise of its
jurisdiction has been fulfilled.’
What the ACJA in section 396(7) has audaciously, but
vaingloriously attempted to do is, rather than blow muted trumpet
and defer to a superior law, ie, the Constitution, the
fonsestorigo, the grund norm and the “Kabiyesi”, “Eze” and “Emir”
of our laws, it seeks to torpedo the Constitution itself. Such a
law as the ACJA must suffer a merciless strike down under section
1(3) of the said Constitution. The ACJA has no powers to grant dual
citizenship to a judicial officer as both Judge of the High
Court/Federal High Court and Justice of the Court of Appeal.
It is akin to the bat that claims to be a mammal (of the order
of Chiroptera), because it has teeth, ears, mammary glands,
produces milk to feed its young and with forelimbs like all animals
do. It simultaneously claims to be a bird because it can fly like
all birds.
The sore question that begs for an answer is whether a Judge of
the High Court or Federal High Court lawfully and legally elevated
to the Court of Appeal can still maintain dual status and exercise
dual judicial powers over cases in both the Court of Appeal (as a
Justice) and the High Court or Federal High Court (as a Judge).
This cannot be so.
It is humbly submitted that any elevated judge having lost the
toga of being a Judge of the High Court or Federal High Court, the
proper thing for him to do is for such Justice of the Court of
Appeal to recuse himself, send the case file back to the Chief of
the High Court or Federal High Court, to be reassigned to another
judge of the said High Court or Federal High Court, in line
with section 253 of the Constitution,
which provides for the constitution of the Federal High Court. Such
a Judge must, like Pontius Pilate, wash his hands off the case, to
prevent being accused of undue and special interest in such a
matter. The mere suspicion by a litigant that he is being “tried”
at the trial court by a Justice of the Court of Appeal who lacks
judicial competency to do so is sufficient for such a judge to
recuse himself. Afterall, justice is rooted in confidence.
In MBASMOTEL LTD. V. WEMA BANK PLC. (2013)
LPELR-20736 (CA), the Court of Appeal held as follows:
“We must never lose sight of the fact that justice is
rooted in public confidence and it is essential to social order and
security. It is the bond of society and the cornerstone of human
togetherness. Justice is the condition in which the individual is
able to identify with society, feel at one with it and accept its
rulings. The moment members of the society lose confidence in the
system of administration of justice, a descent to anarchy begins.”
Per ABIRU, J.C.A. (P. 26, Paras. E-G)”.
In JWAN v. ECOBANK & ANOR (2018)
LPELR-45631(CA), the Court of Appeal held as follows:
“Before concluding this appeal, this Court considers it
pertinent to reiterate that it is essential to understand that the
aim of any administration of justice system must be to bring about
justice in the polity. Justice is the first virtue of social
institutions, as truth is of systems of thought. *Justice is rooted
in the confidence that the public repose in the administration of
justice system and it behooves the Courts, therefore, to ensure
that they do not do anything to erode the root of justice*. It is
matters like the present one that leaves the entire judicial system
open to ridicule and the risk of becoming irrelevant to the
aspirations of the people. Uwaifo, JCA (as he then was) made this
point succinctly in State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at
220 thus: “I think we have come a long way in this country to ought
to find no necessity to sound a warning that our sense of approach
to justice in our Courts should not be seen to be in any way
underhand, such as is employed as if to take the society for a
ride. The dispensation of justice is not left to the whims and
caprices of any Judge, founded on shabby reasoning and perfunctory
performance. It is not too much to expect the judiciary to set the
pace in the quest for excellence in the discharge of public duty.
It should be a sort of modulator of varying forces of change in a
socio-political environment towards positive and beneficial ends.
That is the sense in which law is expected to be the catalyst of
societal values, attitudes and development. Much of the living
aspect of the law depends on the alertness of Judges. But if the
judiciary takes a back seat through unsatisfactory input by Judges
even of superior Courts, it will sooner become a lame duck and
irrelevant in the reckoning of the astute and even the common man.”
Per ABIRU, J.C.A. (Pp. 30-32, Paras. F-C).
CAN PARTIES VOLUNTARILY CONFER JURISDICTION ON A
COURT?
I have had the benefit of hearing the argument of some counsel
or appellate Justices still hearing such part heard matters across
Nigeria after their elevation. It is to the effect that Counsel who
are participating in such proceedings actually wrote and requested
that such Justices should continue with the hearing of such cases.
That argument flies in the face, and assaults trite principles of
law. For the avoidance of doubt, parties cannot by consent or
agreement confer jurisdiction on a court where such is not in
existence. I humbly refer to the case of ONNA
TRADITIONAL RULERS COUNCIL & ORS V. UMOREN &
ORS (2018) LPELR 44301(CA), where the Court of appeal
held as follows:
“It is trite that where jurisdiction is absent, parties
cannot by waiver or consent confer jurisdiction on the Court”. Per
OYEWOLE, J.CA.(P. 15, para E).
As held in the case of Prof. Steve
TorkumaUgba&Ors v. Gabriel TorwuaSuswam&
4ors (No. 2) (2012) 6 SC (PT.II)
56, “jurisdiction of courts is granted by statute or
Constitution but not by courts. In which case, no court shall have
jurisdiction to go beyond the provisions of the enabling law.
Otherwise, will be ultra vires”.
Jurisdiction is either granted by the Constitution itself, or by
an enabling statute. It is not assumed or presumed. It is not
gratuitously donated by any of the parties to a dispute. This is
why in the case of JOSIAH AYODELE ADETAYO & 2ORS V.
KUNLE ADEMOLA & 2ORS (2010) 3-5 SC 89, the Supreme
Court emphatically declared that:
“It must be borne in mind always and this is settled
that all the courts in this country, derive their powers and
jurisdiction in particular, by either statute or Constitution which
is the supreme, organic, fundamental law and the grund-norm of this
country”. Per Ogbuagu, JSC.(P. 27, paras. F-G).
The importance of jurisdiction being the lifeline of all trials
is why it can be raised at any stage of a case, be it at the trial,
on appeal to the Court of appeal, or to the Supreme Court. The
court, afortion, can suomotu raise it. It can even be raised viva
voce (per Uwaifo, JSC, in NDIC v
CBN (2002) LPELR 2000 (SC). See
also Akere&Ors v The Governor of Oyo
State (2012) LPELR, 7806 (SC); Anozie v.
Emerenini&Anor (2018) LPELR – 43888
(CA), Chukwuma v. Nwonye (2009) LPELR
4997 (CA).
In the case of ONONYE V. ODITA (2008) 10 NWLR (Pt.
1096)487, the Court of Appeal held follows:
“That the issue of jurisdiction is fundamental is a
matter of trite law and where jurisdiction of a court is
challenged, that issue must immediately be determined by the court
before it embarks on any trial or determination of the action
before it. Unless a court is cloaked with jurisdiction, its
proceedings are rendered a complete nullity, no matter how well the
case was determined. See Madukolu v. Nkemdilim (1962) 1 All NLR
587; Anya v. Iyayi (1993) 7 NWLR (Pt.305) p.290; Iwuagolu v. Azuka
(2007) 5 NWLR (Pt.1028) P. 628; Governor of Gongola State v. Tukur
(1989) 4 NWLR (Pt.117) P. 592; Okoya v. Santilli (1990) 2 NWLR
(Pt.131) p.17”.
PRECEDENTS ON THE UNCONSTITUTIONALITY OF ELEVATED JUDGES
STILL HANDLING THEIR MATTERS AT THE LOWER BENCH
In the causacerebre of OGBUANYINYA & 5 ORS. V. OBI
OKUDO &3ORS (1979) 9SC.32,a similar situation reared its
head before the apex court.
In 1977, Hon. Justice Nnaemeka-Agu, a judge of the Anambra State
High Court was the trial judge in a land matter. On the
13th day of June, 1977, the learned trial Judge
listened to the addresses of Counsel on both sides and adjourned
judgment on the 17th day of June, 1977. Two days
previous to the 17th June, 1977, Hon, Justice
Nnaemeka-Agu was appointed a Justice of the then Federal Court of
Appeal. The argument of the appellant was that as at the
17th of June, 1977, when the learned trial judge
delivered his judgment, he had ceased to be a judge of the High
court of Anambra State.
In July, 1979, the apex court unanimously upheld the argument
that the judgment delivered by Hon. Justice Nnaemeka-Agu on
17th June, 1977, was illegal, null and void. The
judgment was consequently set aside and the case remitted back to
the trial court for trial de novo.
Held the apex court:
“The case was in abeyance during the civil war period
and resurfaced thereafter in the High Court of Anambra State in
1976 before Nnaemeka-Agu, J. (as he then was), with
1st and 2nd defendants reported
dead. Nnaemeka-Agu, J. (as he then was then was) delivered
judgment, which was incompetent as he was then functus
officio, having been appointed sometime in 1977 to the
Federal Court of Appeal.”
The case of ALHAJI AHMED GARBA BICHI &ORS V.
ALHAJI IBRAHIM SHEKARAU & ORS, (2009) LPELR-3874
(CA), where the Court of Appeal held that once a
Judge is elevated to the intermediate court, and takes the oath,
such a Judge cannot continue to sit as a Judge of the lower court,
is also apposite. It is humbly submitted, as stated earlier, that
any elevated judge having lost the oga of being a Judge of the High
Court or Federal High Court, the proper thing for him is for such
Justice of the Court of Appeal to recuse himself, send the case
file back to the Chief Judge of the High Court or Federal High
Court, to be reassigned to another Judge of the said High Court or
Federal High Court, in line with section 253 of the Constitution
which provides for the composition of the Federal High Court.
THE DOCTRINE OF COVERING THE FIELD
The doctrine of covering the field surely applies here. The
Constitution, having taken care of the hierarchy of courts, the
ACJA cannot make incursions into the same area. This doctrine as
espoused by the Supreme Court in the case of LAGOS
STATE v. EKO HOTELS LTD & ANOR (2017)
LPELR-43713(SC), states as follows:
“A convenient place to commence the resolution of this
issue is to examine the application of the doctrine of “covering
the field” as it relates to the powers of the National Assembly and
State Houses of Assembly to make laws. In A.G. OGUN STATE & ORS.
VS. A.G. FEDERATION (1982) NSCC (Vol.13) 1 @ 35 lines 18 – 30, His
Lordship, KayodeEso, JSC stated thus:
“I take the view that when one considers this doctrine,
the phrase “covering it the field” means precisely what it says.
Where a matter legislated upon is in the concurrent list and the
Federal Government has enacted a legislation in respect thereof,
where the legislation enacted by the State is inconsistent with the
legislation of the Federal Government it is indeed void and of no
effect for inconsistency. Where, however, the legislation enacted
by the State is the same as the one enacted by the Federal
Government, where the two legislations are in parimateria I
respectfully take the view that the State Legislation is in
abeyance and becomes inoperative for the period.
The Federal Legislation is in force. I will not say it
is void. If for any reason the Federal Legislation is repealed, it
is my humble view that the;
State legislation, which is in abeyance, is revived and
becomes operative until there is another Federal Legislation that
covers the field”.
This position was given judicial imprimatur by the apex court
in INEC VS. MUSA (2003) 3 NWLR (Part
806) 72, where the court in striking down INEC’S guidelines for
registration of political parties which contradicted the clear
provisions of the Constitution, laid down three guidelines for
testing the validity of provisions of an Act of the Legislature
(NASS). They are:
- The legislative powers of the legislature cannot be exercised
inconsistent with the Constitution where it is so exercised, it is
invalid to the extent of such inconsistency. - Where the Constitution has enacted exhaustively in respect of
any such situation, conduct or subject, a body that claims to
legislate in addition to what the Constitution has omitted must
show that it has derived the legislative accordingly to do so from
the Constitution. - Where the Constitution sets the condition for doing a thing, no
legislation of the National Assembly or of a State house of
Assembly can alter those conditions in any way, different or
indirectly, unless the Constitution itself as an attitude of the
supremacy expressly so authorises.
Since there cannot be two Emirs, Ezes, or Obas in one Palace at
the same time, the ACJA cannot be accommodated in the same hallowed
pantheon of legitimacy and supremacy of laws as the
Constitution.
CONCLUSION
It is clear to me that any judgment delivered by a Justice of
the Court of Appeal acting as a Judge of the High Court/Federal
High Court is unconstitutional, illegal, null and void. Same is
subject to being set aside on appeal. For, when an act is void, it
is void ab initio-and for all purposes.
See, UAC V. MCFOY (1962) AC
152, AKPENE V. CENTRAL
BANK (1977)1 S.C. 47 at 59.
The best route open to judicial officers is for all elevated
Judges to immediately and honourably recuse themselves from further
trial of criminal cases before lower courts. To continue such
trials is to have such judgments set aside on appeal, and cases
ordered to start de novo. That would be inimical to the interest of
the defendant, as he would have been subjected to double jeopardy.
Such a litigant could successfully plead autrefois acquit or
autrefois convict. See the cases of STATE V.
DUKE (2002) LPELR – 6163 (CA); SUNDAY V.
STATE (2017) LPELR – 42140 (CA).
This is one instance where the state (prosecution), is
respectfully urged to make haste slowly, by disbanding such
appellate panels of Justices masquerading as trial Judges, and
allowing all such cases to start de novo. True, justice delayed is
justice denied. However, more significantly, justice hurried is
justice crushed. (See THE CHAIRMAN NATIONAL POPULATION
COMMISSION V. THE CHAIRMAN, IKERE LOCAL GOVERNMENT & ORS,
(2001) 7 S.C. (pt.iii) 90 @ 97-8, 100, TRADE BANK PLC
V. UDEGBUNAM & ANOR (2004) ALL FWLR (PT.200) 1576
@1590 C.A.).
I so humbly submit.”
-Chief Mike Ozekhome SAN, is a Senior Advocate of
Nigeria and foremost Nigeria Human Right Crusader.