The Supreme Court of Nigeria had on Friday 8/5/2020, declared as
nullity the conviction meted out to Orji Uzor Kalu & Ors by Justice
Mohammed Idris then of the Federal High Court, on the grounds that
the said judgment was delivered in bereft of jurisdiction, since
Justice Idris was at the time of the delivery of the said
judgement, already elevated to the Court of Appeal. This is
regardless of the fact that Justice Idris acted in line with the
provisions of Section 396(7) of the Administration of Criminal
Justice Act (ACJA) 2015.
Let’s not behave as though we didn’t see this coming. Every
active lawyer engaged in criminal litigation knows deep down within
him/her that the provision of Section 396(7) of ACJA will one day
be hunted down, since same is inconsistent with and grossly
violates the provisions of the Constitution of the Federal Republic
of Nigeria, 1999 (as amended), our grundnorm. We cannot feign
ignorance about the 1977 decision of the Supreme Court of Nigeria
which upturns a judgement delivered by Honourable Justice Nnaemeka
Agu of the High Court of Anambra State (as he then was). Where the
Supreme Court, having considered the said judgement to have been
delivered after his elevation as a Justice of the Federal Court of
Appeal, declared as nullity the said judgement. Interestingly, the
said precedent brought to life the provision of the Nigerian
Constitution that stresses on the sanctity of judicial offices. Its
drafters, in a bid to avoid contradictions in the interpretations
of the roles of each of the judicial offices, consciously segmented
the functions, titles, responsibilities and compositions at various
levels.
A Judge in the High Court or Federal High Court is known and
addressed as a Judge of that Court, while his Court of Appeal
counterpart is known and addressed as a Justice of the Court of
Appeal. The functions of both judicial officers are quite different
from each other. Save for the fact that both cadre of judicial
officers administer justice in their respective temple, their
jurisdictions differ, in that, unlike a High Court, a Court of
Appeal cannot entertain criminal trial while exercising its
original jurisdiction, please see Section 239(1) of the 1999
Constitution of Nigeria (As amended). Its composition while
exercising its original jurisdiction is three Justices as against
one Judge for the High Court, please see Section 239 (2). The
Justices of the Court of Appeal is stated to rank next to Justices
of the Supreme Court and as equals to Chief Judge of a High Courts.
The distinction between these two categories of judicial officers
is obvious and ought not to be mistaken by anyone.
While choosing not to blame the Executive Arm of the Federal
Government and the 7th National Assembly for proposing
and passing the ACJA, I wish to state further that the true intent
of the law is genuine and progressive of our criminal law system.
Testimony abounds in this regards from some of us who have tested
its provisions. The positive side of the law, especially the way it
quickens the dispensation of criminal justice, far outweighs its
negativity, even to the extent that it outshines the entire
embodiment of the Act, and perfectly conceals its hidden flaws even
at the face of existing judicial precedence like the Justice
Nnemeka Agu’s case which provides in the contrary. Unfortunately,
Section 386(7) of the ACJA, which incidentally for me, is the most
commendable provision of the Act, and which undoubtedly benefits
litigants at criminal trials, is that which the Supreme Court, by
implication of its decision in the Kalu’s case, has nullified.
For ease of reference, Section 396(7) of ACJA is hereby
reproduced:
“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 purpose of concluding any
partly-heard criminal matter pending before him at the time of his
elevation; and shall conclude the same within a reasonable time,
provided that this section shall not prevent him from assuming duty
as a Justice of the Court of Appeal.”
From the purports of the above provision, it is glaring to note
that this provision, despite the fact that it runs contrary to the
provisions of Sections 1(1) and (3) of the 1999 Constitution of
Nigeria (as amended), which emphasizes on the supremacy of the
provisions of the Constitution, and which forbids inconsistencies
of its provisions with other laws, also derogates the authority of
the President of the Court of Appeal, by subjecting him to
authorize his justices to submit themselves to the Procedural Rules
of a lower Court. How can a Justice of the Court of Appeal, whose
rank is equal to the Chief Judge of Federal High Court or of High
Courts, be seen sitting under the authority of the latter on
justification of completing an unfinished matter within that
jurisdiction? This does not just offend the law but also offends
common sense. However, the overriding wisdom of its drafter must be
commended, as by enacting this law, they actually meant well for
our criminal justice system.
What the Orji Uzor Kalu’s judgement portends for the Nigerian
justice system is that, several cases, both criminal and civil,
whose decisions were delivered functus officio by judges elevated
to Court of Appeal, would be reawakened by litigants and convicts
alike (where applicable), and tested on appeal. Just like the Rt.
Hon. Emeka Ihedioha vs. Sen. Hope Uzodinma’s case, the Supreme
Court by this judgement, have activated a consciousness in the mind
of litigants to pursue on appeal already concluded matters which
shares similar features with that of Orji Kalu’s. I for one would
be a victim in this regards, as I already have two judgements in my
favour, which the then presiding judges of the Federal High Court
condescended from their elevated offices as Justices of the Court
of Appeal to deliver the judgements. While I keep expecting notices
of appeal any moment from now from Plaintiffs in both matters, I
cannot but imagine the quantum of associated hardship this
judgement would effect on the Nigerian legal jurisprudence.
Since the problem has already happened, other than playing the
blame game, what is expected from every progressive legal mind is
to think out a solution to correct this mishap of greater magnitude
that has befallen our corpus juris. Should the ACJA be amended? I
don’t think so. What I will however advocate for is a further
review of the provision of the 1999 Constitution, by introducing a
proviso after section 239-240 of the Constitution, allowing for a
three months delay prior to the inauguration and oath taking of the
newly appointed Justice of the Court of Appeal, to round up and
deliver judgements on all preside over cases nearing
completion.
For ease of reference sections 239-240 of the 1999 Constitution
(As amended) is hereunder reproduced.
“239. (1) 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 –
(a) any person has been validity elected to the office of
President or Vice-President under this Constitution; or
(b) the term of office of the President or Vice-President
has ceased; or
(c) the office of President or Vice-President has become
vacant.
(2) In the hearing and determine of an election petition
under paragraph (a) of subsection (1) of this section, the Court of
Appeal shall be duly constituted if it consists of at least three
Justices of the Court Appeal
- 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 High Court of the Federation 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 prescribed by an Act of
the National Assembly.”
The proposed proviso could be added thus:
“Provided that a Judge of the High Court newly
appointed to the Court of Appeal shall be given a period not
exceeding three months prior to his oath taking and inauguration as
a Justice of the Court of Appeal, to complete and deliver
judgements on all pending matters nearing completion, which he as a
Judge of a High Court has been presiding over before his elevation
to the Court of Appeal.”
The operation of the proposed proviso above is possible, as it
does not offend any statutory provision or case law. Need I mention
that the announcement of elevation of a High Court Judge to the
position of a Justice of the Court of Appeal does not automatically
make the said appointee a Justice of the Court of Appeal. What
activates the said appointment is his/her oath taking and
inauguration into that capacity.
While the above suggestion may likely happen in the long run,
considering the length of time it would take for the National
Assembly to gather two-third of affirmative votes from State Houses
of Assembly to amend the Constitution, an interim measure pending
the incorporation of the proposed proviso into the Constitution, is
for an administrative arrangement between the President of the
Court of Appeal and the Chief Judge of the Federal High Court and
of States to be worked out, that would facilitate a delay on
the oath taking and assumption of duty in the Court of Appeal by a
newly elevated judge, pending the completion of prolong cases
nearing completion. This step however, should not prejudice the
career interest of the elevated judicial officer. I believe this
approach is not illegal.
Section 396(7) of ACJA is a fine law, even though it is
inconsistent with the overriding provision of the 1999
Constitution. Its good intendment should not be sacrificed on the
Alter of respect for the status of judicial officers. It is not
worth it. If the status quo enabled by the Kalu’s Judgement is
overlooked, what it portends is that, some accused persons with
means and who are mostly on bail, may utilize this shortfall of
this judgement for their selfish gains. They may trigger their
connections to have elevated to the Court of Appeal, a judge
handling their prolonged criminal trial which perhaps, is at the
verge of completion, so as to commence the trial de novo.
While this may be good for the judge, and a big win for the accused
person, the Nigerian criminal justice system would be left to
suffer. This should not be the case.
Piribonimibo Isaac Harry is a Principal State
Counsel with the Federal Ministry of Justice, Abuja.
(piriboharry@yahoo.co.uk[1])
+905338623457
The Supreme Court of Nigeria had on Friday 8/5/2020, declared as
nullity the conviction meted out to Orji Uzor Kalu & Ors by Justice
Mohammed Idris then of the Federal High Court, on the grounds that
the said judgment was delivered in bereft of jurisdiction, since
Justice Idris was at the time of the delivery of the said
judgement, already elevated to the Court of Appeal. This is
regardless of the fact that Justice Idris acted in line with the
provisions of Section 396(7) of the Administration of Criminal
Justice Act (ACJA) 2015.
Let’s not behave as though we didn’t see this coming. Every
active lawyer engaged in criminal litigation knows deep down within
him/her that the provision of Section 396(7) of ACJA will one day
be hunted down, since same is inconsistent with and grossly
violates the provisions of the Constitution of the Federal Republic
of Nigeria, 1999 (as amended), our grundnorm. We cannot feign
ignorance about the 1977 decision of the Supreme Court of Nigeria
which upturns a judgement delivered by Honourable Justice Nnaemeka
Agu of the High Court of Anambra State (as he then was). Where the
Supreme Court, having considered the said judgement to have been
delivered after his elevation as a Justice of the Federal Court of
Appeal, declared as nullity the said judgement. Interestingly, the
said precedent brought to life the provision of the Nigerian
Constitution that stresses on the sanctity of judicial offices. Its
drafters, in a bid to avoid contradictions in the interpretations
of the roles of each of the judicial offices, consciously segmented
the functions, titles, responsibilities and compositions at various
levels.
A Judge in the High Court or Federal High Court is known and
addressed as a Judge of that Court, while his Court of Appeal
counterpart is known and addressed as a Justice of the Court of
Appeal. The functions of both judicial officers are quite different
from each other. Save for the fact that both cadre of judicial
officers administer justice in their respective temple, their
jurisdictions differ, in that, unlike a High Court, a Court of
Appeal cannot entertain criminal trial while exercising its
original jurisdiction, please see Section 239(1) of the 1999
Constitution of Nigeria (As amended). Its composition while
exercising its original jurisdiction is three Justices as against
one Judge for the High Court, please see Section 239 (2). The
Justices of the Court of Appeal is stated to rank next to Justices
of the Supreme Court and as equals to Chief Judge of a High Courts.
The distinction between these two categories of judicial officers
is obvious and ought not to be mistaken by anyone.
While choosing not to blame the Executive Arm of the Federal
Government and the 7th National Assembly for proposing
and passing the ACJA, I wish to state further that the true intent
of the law is genuine and progressive of our criminal law system.
Testimony abounds in this regards from some of us who have tested
its provisions. The positive side of the law, especially the way it
quickens the dispensation of criminal justice, far outweighs its
negativity, even to the extent that it outshines the entire
embodiment of the Act, and perfectly conceals its hidden flaws even
at the face of existing judicial precedence like the Justice
Nnemeka Agu’s case which provides in the contrary. Unfortunately,
Section 386(7) of the ACJA, which incidentally for me, is the most
commendable provision of the Act, and which undoubtedly benefits
litigants at criminal trials, is that which the Supreme Court, by
implication of its decision in the Kalu’s case, has nullified.
For ease of reference, Section 396(7) of ACJA is hereby
reproduced:
“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 purpose of concluding any
partly-heard criminal matter pending before him at the time of his
elevation; and shall conclude the same within a reasonable time,
provided that this section shall not prevent him from assuming duty
as a Justice of the Court of Appeal.”
From the purports of the above provision, it is glaring to note
that this provision, despite the fact that it runs contrary to the
provisions of Sections 1(1) and (3) of the 1999 Constitution of
Nigeria (as amended), which emphasizes on the supremacy of the
provisions of the Constitution, and which forbids inconsistencies
of its provisions with other laws, also derogates the authority of
the President of the Court of Appeal, by subjecting him to
authorize his justices to submit themselves to the Procedural Rules
of a lower Court. How can a Justice of the Court of Appeal, whose
rank is equal to the Chief Judge of Federal High Court or of High
Courts, be seen sitting under the authority of the latter on
justification of completing an unfinished matter within that
jurisdiction? This does not just offend the law but also offends
common sense. However, the overriding wisdom of its drafter must be
commended, as by enacting this law, they actually meant well for
our criminal justice system.
What the Orji Uzor Kalu’s judgement portends for the Nigerian
justice system is that, several cases, both criminal and civil,
whose decisions were delivered functus officio by judges elevated
to Court of Appeal, would be reawakened by litigants and convicts
alike (where applicable), and tested on appeal. Just like the Rt.
Hon. Emeka Ihedioha vs. Sen. Hope Uzodinma’s case, the Supreme
Court by this judgement, have activated a consciousness in the mind
of litigants to pursue on appeal already concluded matters which
shares similar features with that of Orji Kalu’s. I for one would
be a victim in this regards, as I already have two judgements in my
favour, which the then presiding judges of the Federal High Court
condescended from their elevated offices as Justices of the Court
of Appeal to deliver the judgements. While I keep expecting notices
of appeal any moment from now from Plaintiffs in both matters, I
cannot but imagine the quantum of associated hardship this
judgement would effect on the Nigerian legal jurisprudence.
Since the problem has already happened, other than playing the
blame game, what is expected from every progressive legal mind is
to think out a solution to correct this mishap of greater magnitude
that has befallen our corpus juris. Should the ACJA be amended? I
don’t think so. What I will however advocate for is a further
review of the provision of the 1999 Constitution, by introducing a
proviso after section 239-240 of the Constitution, allowing for a
three months delay prior to the inauguration and oath taking of the
newly appointed Justice of the Court of Appeal, to round up and
deliver judgements on all preside over cases nearing
completion.
For ease of reference sections 239-240 of the 1999 Constitution
(As amended) is hereunder reproduced.
“239. (1) 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 –
(a) any person has been validity elected to the office of
President or Vice-President under this Constitution; or
(b) the term of office of the President or Vice-President
has ceased; or
(c) the office of President or Vice-President has become
vacant.
(2) In the hearing and determine of an election petition
under paragraph (a) of subsection (1) of this section, the Court of
Appeal shall be duly constituted if it consists of at least three
Justices of the Court Appeal
- 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 High Court of the Federation 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 prescribed by an Act of
the National Assembly.”
The proposed proviso could be added thus:
“Provided that a Judge of the High Court newly
appointed to the Court of Appeal shall be given a period not
exceeding three months prior to his oath taking and inauguration as
a Justice of the Court of Appeal, to complete and deliver
judgements on all pending matters nearing completion, which he as a
Judge of a High Court has been presiding over before his elevation
to the Court of Appeal.”
The operation of the proposed proviso above is possible, as it
does not offend any statutory provision or case law. Need I mention
that the announcement of elevation of a High Court Judge to the
position of a Justice of the Court of Appeal does not automatically
make the said appointee a Justice of the Court of Appeal. What
activates the said appointment is his/her oath taking and
inauguration into that capacity.
While the above suggestion may likely happen in the long run,
considering the length of time it would take for the National
Assembly to gather two-third of affirmative votes from State Houses
of Assembly to amend the Constitution, an interim measure pending
the incorporation of the proposed proviso into the Constitution, is
for an administrative arrangement between the President of the
Court of Appeal and the Chief Judge of the Federal High Court and
of States to be worked out, that would facilitate a delay on
the oath taking and assumption of duty in the Court of Appeal by a
newly elevated judge, pending the completion of prolong cases
nearing completion. This step however, should not prejudice the
career interest of the elevated judicial officer. I believe this
approach is not illegal.
Section 396(7) of ACJA is a fine law, even though it is
inconsistent with the overriding provision of the 1999
Constitution. Its good intendment should not be sacrificed on the
Alter of respect for the status of judicial officers. It is not
worth it. If the status quo enabled by the Kalu’s Judgement is
overlooked, what it portends is that, some accused persons with
means and who are mostly on bail, may utilize this shortfall of
this judgement for their selfish gains. They may trigger their
connections to have elevated to the Court of Appeal, a judge
handling their prolonged criminal trial which perhaps, is at the
verge of completion, so as to commence the trial de novo.
While this may be good for the judge, and a big win for the accused
person, the Nigerian criminal justice system would be left to
suffer. This should not be the case.
Piribonimibo Isaac Harry is a Principal State
Counsel with the Federal Ministry of Justice, Abuja.
(piriboharry@yahoo.co.uk[1])
+905338623457