Administration Of Criminal Justice Act, 2015: A Project Series

By Hameed Ajibola Jimoh Esq.

‘EXPLANATORY MEMORANDUM, LONG TITLE, AND PRELIMINARY’

1. EXPLANATORY MEMORANDUM

This Act provides for the administration of a criminal justice system which promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crimes and protection of the rights and interests of the suspect, the defendant and victims in Nigeria. It also repeals the Criminal Procedure Act CAP. C41 Laws of the Federation of Nigeria, 2004, Criminal Procedure (Northern States) Act Cap. C42 Laws of the Federation of Nigeria, 2004, and the Administration of Justice Commission Act Cap. A3 Laws of the Federation of Nigeria, 2004.

MY EXPLANATORY NOTE:

The Act has provided for its explanatory memorandum which in my humble submission and view, is not different from a ‘Preamble’ in a statute or it does what a ‘Preamble’ does in a statute. On the effect of a ‘Preamble in a statute’ our courts have held some guides in that regard below are some of the decisions of the courts:

1. OGBONNA v. AG OF IMO STATE & ORS (1992)LPELR-2287(SC):

‘The purpose of the preamble in a statute or written document is to clarify any ambiguity in the words used in the enacting part. It does not control the plain words of the statute or document. As was stated by the Federal Supreme Court in Habib v. LEBD (1958) 3 FSC 109; (1958) SCNLR 434, “It is a cardinal rule of interpretation of statutes that the heading cannot control the plain words of the statutes; headings are only to be regarded where there is an ambiguity in the words of the Ordinance. Indeed, preambles and headings can only be relied upon to clarify ambiguity. They cannot be used so as to give a different meaning to the clear wording of a provision – See Olu of Warri v. Esi (1958) 3 FSC 94; (1958) SCNLR 384. Headings and preambles, which were originally disallowed, in interpreting statutes determination of the scope and intendment of the provisions of statutes. See Haines v. Herbert (1963) 1 WLR. 1401 at p.1404. This however, can only be done when the enacting or operative part of the statute is ambiguous. – See Osawaru v. Ezeiruka SC 362/76 (unreported); (1978) 6-7 S.C. 135; (1978) 1 L.R.N. 307. The heading cannot be used to modify the meaning of words which are plain, clear and unambiguous. – See U.T.C. Ltd. v. Pamotei &amp; Ors. (1989) 3 SCNJ79 (1989) 2 NWLR (Pt 103) 244; Adebanjo &amp; ors. v. Olowosago &amp; Ors. (1988) 4 NWLR (Pt.88) 275;(1989) 9 SCNJ.78.”</div> Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 56 – 57 Paras F – E)

1. BABALOLA v. AG, FEDERATION & ANOR(2018) LPELR-43808(CA):

‘A preamble to an enactment, though not part of the body of the enactment, can be resorted to as an aid in interpreting the enactment, especially where there is some difficulty in arriving at the meaning of word used in the enactment vide Osawe and Ors. v. Registrar of Trade Unions (1985) 1 NWLR (pt. 4) 755. It is all the more so in light of the fact that a preamble to an enactment is its preface or introduction. Its purpose is to portray or show-case the interest of the framer(s) of the enactment and the mischief the enactment is set out to remedy. Although it may sometimes serve as a key to understanding of the enactment, a preamble is not strictly part of the enactment and so, as a general rule, it may not be resorted to as an aid to interpretation except in special circumstances vide Chief Ogbonna v. The Attorney-General of lmo State and Ors. (1992) 1 NWLR (pt.220) 647 at 671-672,677,686 and 694 – 905.” Per JOSEPH SHAGBAOR IKYEGH, JCA (Pp 14 – 15 Paras B – A)’

1. CHAIRMAN, LAGOS EXECUTIVE DEVELOPMENT BOARD v. JAMIL SAID & ORS (1967) LPELR-25335(SC):

”… A preamble may of course be included in an Act so as to make clear the object of the legislature and if there is a preamble, that can be looked at as a guide to the intention of the Legislature if the wording of a provision of the Act itself creates doubt as to what is its meaning, but there is no legal requirement to incorporate a preamble in an Act, be it altering the Constitution or otherwise.” Per IAN LEWIS, JSC (Pp 7 – 8 Paras D – A)

1. ADAMU v. FRN (2021) LPELR-54598(CA):

‘However, for whatever it is worth, what is the role of preamble in the interpretation of a statute. The law is that, preamble sheds light on the purpose of the statute. This could limit or expand it. The preamble can definitely assist a person to know the exact purpose of the law. This is mostly relevant when there is ambiguity in the law as to the purpose and applicability of the law. In Ogbonna vs A.G. of Imo State (1992) 1 NWLR (pt. 220) 647, the apex Court held: “It is well settled that the preamble to a statute or written document is merely an introductory part of it. It is therefore not a part of the statute or the written document. ?The purpose of the preamble in a statute or written document is to clarify any ambiguity in the words used in the enacting part. It does not control the plain words of the statute or document. As was stated by the Federal Supreme Court in Habib v. L.E.D.B (1958) 3 FSC 109; (1958) SCNLR 434: “It is a cardinal rule of interpretation of statutes that the heading cannot control the plain words of the statutes; headings are only to be regarded where there is an ambiguity in the wards of the Ordinance.” Indeed, preambles and headings can only be relied upon to clarify ambiguity. They cannot be used so as to give a different meaning to the clear wording of a provision – See Olu of Warri v. Esi (1958) 3 FSC 94; (1958) SCNLR 384 . Headings and preambles, which were originally disallowed, in interpreting statutes determination of the scope and intendment of the provisions of statutes. – See Haines v. Herbert (1963) 1 WLR. 1401 at p. 1404. This however, can only be done when the enacting or operative part of the statute is ambiguous. – See Osawaru v. Ezeiruka SC 362/76 (unreported); (1978) 6-7 S.C. 135; (1978) 1 L.R.N. 307. The heading cannot be used to modify the meaning of words which are plain, clear and unambiguous. – See U.T.C. Ltd. v. Pamotei & Ors . (1989) 3 SCNJ 79 (1989) 2 NWLR (Pt 103) 244; Adebanjo & Ors. v. Olowosago & Ors. (1988) 4 NWLR (Pt.88) 275; (1989) 9 SCNJ.78.” Per EBIOWEI TOBI, JCA (Pp 38 – 40 Paras B – A).

1. ABIOYE & ORS v. YAKUBU & ORS (1991) LPELR-43(SC):

“…However in construing a law like the Land Use Act, it is always of considerable assistance to consider the history and also purpose of the law as enshrined in its preamble, and if possible the social objectives. I am not by this suggesting that where the words of the statute are clear and unambiguous and unequivocally express its intention, the meaning should be cut down by the preamble – Far from it. See Olu of Warri v. Esi (1958) 3 FSC 94; (1958) SCNLR 384. This is because where the words of a statute accurately express the intention of the law Maker, effect must be given to them. – See Habib v. L.E.D.B (1958) 3 FSC 109; (1958) SCNLR 434. The intention of the Act as clearly stated, includes to assert and preserve the rights of all Nigerians to the land of Nigeria in the public interest. It is also in the public interest that the rights of all Nigerians to use and enjoy land in Nigeria and the natural fruits thereof to sustain themselves and their families should be assured, protected and preserved. The preamble expresses the general policy under which the Act should be applied and operate. Accordingly, whether any specific right has been abrogated can only be discovered from construction of the specific provisions alleged to have that effect. See Osawaru v. Ezeiruka (1978) 6-7 SC 135.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 110 – 111 Paras A – A)

1. OGBONNA v. AG OF IMO STATE & ORS (1992)LPELR-2287(SC):

‘It is well settled that the preamble to a statute or written document is merely an introductory part of it. It is therefore not a part of the statute or the written document.” Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC (Pp 56 – 56 Paras E – F)

Therefore, the ‘Explanatory Memorandum’ is only introductory to the Act and does not form part of the content of the main provisions of the Act. It is only a guide and can be resorted to where there is likely guide to the content of the provisions of the Act just like a ‘Preamble’. In my humble submission, it is just a matter of ‘nomenclature’ i.e. naming that the words ‘Explanatory Memorandum’ and ‘Preamble’ are used or just to say ‘the difference between six (6) and half a dozen’. To this extent, the Act stipulates its purposes does:

This Act provides for:

1. the administration of a criminal justice system which promotes efficient management of criminal justice institutions;
2. speedy dispensation of justice;

• protection of the society from crimes and protection of the rights and interests of the suspect;

1. the defendant and victims in Nigeria.
2. It also repeals the Criminal Procedure Act CAP. C41 Laws of the Federation of Nigeria, 2004, Criminal Procedure (Northern States) Act Cap. C42 Laws of the Federation of Nigeria, 2004, and the Administration of Justice Commission Act Cap. A3 Laws of the Federation of Nigeria, 2004.

I wish to further submit that the Act is a general Criminal Procedure or Adjectival Law guiding criminal proceedings in its areas of application. Therefore, there are specific sister-statutes that have to be considered having regard to the nature of the offence with which a suspect is arrested or a defendant has been charged. For instance, dealing with offence under the Economic and Financial Crimes Commission (Establishment) Act, 2004 (EFCC Act), or the Independent Corrupt Practices and Other Related Offences Act, 2000 (i.e. ICPC Act) or Terrorism (Prevention) Act, 2011 (and the amendment of 2013 thereto), these laws or Acts are special Acts that contain some special procedures that are specific to those offences which everyone having to deal with any of such offences shall comply with. The law is clear on the implications where there is a ‘general’ law on a subject and there is a ‘special law’ on the same subject that the ‘special law’ shall prevail. Now, in my humble submission, in a situation of dichotomy or inconsistency between the EFCC Act or ICPC Act or the Terrorism Prevention Act, and the ACJA, the provisions of those special laws or Acts i.e. EFCC Act or ICPC Act or the Terrorism Prevention Act shall prevail. This in latin maxim is known as ‘SPECIALIA GENERALIBUS DEROGANT’. Our Nigerian courts have also held in this regard in the following cases:

1. AGF vs ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 472E, per Onu, JSC. thus

“Where there are 2 enactments, one making specific provisions and the other, general provisions, the specific provisions are impliedly excluded from the general provisions”

1. SCHROEDER vs. MAJOR & CO. (1989) 1 NSCC 399 @ 406 per Agbaje & Wali, JJSC. thus

“Where there are two (2) provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision”:

Furthermore, it is the law on interpretation of statute or law as held in the case of Lamido v Turaki (1999) 4 NWLR (pt.699) 578 C.A., where the Court Appeal held that:

‘if the words used in a legislation are plain and unambiguous, they should be given their ordinary meaning’. The applicant also humbly refer My Lord to the case of: Chigbu v Tonimas (Nig.) Ltd. (1999) 3 NWLR (pt. 593) 115 C.A., Reg. Trustee of Ecwa Church v Ijesha (1999) 13 NWLR (pt. 635) 368 C.A., Omohiale v Umoru (1999) 8 NWLR (pt. 614) 178 S.C. 

Therefore, to the extent of the above itemized explanatory memorandum, the Act, in my humble submission, shall only be considered and interpreted in line with the above listed items.

1. ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015

An Act to provide for the administration of criminal justice and for related matters in the courts of the Federal Capital Territory and other federal courts in Nigeria; 2015

[Commencement.] 15^th May, 2015.

ENACTED by the National Assembly of the Federal Republic of Nigeria as follows:

 MY EXPLANATORY NOTE:

This is the ‘Long Title’ of the Act. The Act has provided for the purpose of the Act and its application. The ‘commencement date’ has also been provided. The Act however has provided a more detailed purposes of the Act which I shall consider in the preceding paragraph of this paper. It has also been shown from its ‘ENACTMENT CLAUSE’ that the ACJA is a law made and or enacted by the National Assembly of the Federal Republic of Nigeria as therefore provided in its preceding sections.

1. PART 1- PRELIMINARY

1. (1) The purpose of this Act is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim.

(2)    The courts, law enforcement agencies and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of this Act for the realisation of its purposes.

2.(1) Without prejudice to section 86 of this  Act,  the provisions  of this Act  shall  apply to criminal  trials for offences  established  by  an Act of the National  Assembly and other offences punishable in the Federal  Capital  Territory,  Abuja.

(2)    The provisions of this Act shall not apply to a Court Martial.

MY EXPLANATORY NOTE:

Section: 1(1) of the Act:

The Act has clearly stated its purposes of ENACTMENT or the making of the Act by the legislature or what can be termed the reasons or the mischief that the legislators i.e. the National Assembly of the Federal Republic of Nigeria that made the law sought to correct or achieve thus

1. to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions;
2. speedy dispensation of justice;

• protection of the society from crime;

1. and protection of the rights and interests of the suspect, the defendant, and the victim.

The important question in my humble view, that should or would come to mind is ‘how far has the ACJA achieved its purposes under the Act in criminal proceedings or has the ACJA actually achieved its purposes so far?’.

Therefore, having regard to ‘i’ (in the listed purposes above): this, in my humble view, is yet to be fully realized. It also occurs to my mind that this purpose is futuristic and ambitious for all the time that the Act remains in force.

Having regard to ‘ii’(in the listed purposes above): in my humble submission, observations and experiences in criminal trials, this provision is far from being an achievement. This is because, criminal cases are still not being ‘speedily dispensed’. Criminal cases are still being made to suffer long adjournments based on the case docket of the presiding judge. Adjournments could rise to about four (4) months and above. Sometimes, too, the Prosecuting Counsel is many a time not serious with the prosecution of the cases. Adjournment letters with varying grounds from: being away on official duties outside jurisdiction of the court presiding over the criminal suit; to Prosecution witnesses being on official duties outside the jurisdiction of the court, among others, have rendered the speedy dispensation of criminal cases somehow unrealistic in some of our courts of law. I must however, state that kudos to some of the Honourable Judges/Justices who would stand their grounds on the ‘speedy dispensation’ of a criminal suit in their courts and would not hesitate to strikeout a charge wherein the Prosecution has shown lack of diligence in prosecuting the case and in fact, in some instances (depending on the stage of the proceeding), the court could dismiss the criminal case against the defendant! Therefore, in my humble submission, the ‘judiciary’ or the ‘Presiding Jugde’ has a great role to play in compelling ‘speedy dispensation’ in criminal trial by their judicial powers or inherent powers in either striking out a criminal charge or dismissing same where the Prosecution is seen not to be serious with the case (though, in my humble view, ‘inherent powers’ of the court is not the same as ‘jurisdiction’ of the court as the jurisdiction of the court is a prerequisite to the utilization of any inherent power of court (the court in this instance, already has the jurisdiction to entertain and or preside over the criminal case). See the case of Ugba & Anor v Suswam & Ors (2014) LPELR-22882 (SC), where the Supreme Court of Nigeria held as follows: Apart from its powers derived from the Constitution which remain extant and unimpaired, the Supreme Court is also imbued with inherent powers as explained in Connelly v D.P.P. (1964) A. C. at P. 1301 where Lord Morris said ‘There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it act effectively within such jurisdiction . I would regard them as powers which are inherent in its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and to defeat any attempted thwarting of its process’.). Some prosecuting counsel (with due respect to them) often think that since the court is an arm of the government, they (i.e. the Prosecution) can do their criminal cases as they like and appear in the court for the case whenever they like without any consequence! In fact, I humbly recommend that the Attorney-General of the Federation ought to be written and petitioned by the court whenever a criminal case is struck out and or dismissed based on the lack of diligence by the prosecuting counsel from the Attorney-General’s office as some of the occasions that I have personally witnessed show lack of coordination among the lawyers handling criminal cases in the office of the Attorney-General of the Federation, with due respect! The criminal cases do not get the same attention as the civil cases, from my personal experiences. Sometimes, too, some of the courts are so displeased at such ‘lack of diligence’ conduct of some of those prosecuting counsel. The defendant on the other hand, continues to be brought to court or present himself in court (where being on bail), with ‘no prosecution’ or ‘with prosecution not being ready to proceed or conduct the trial’ in court as a disappointment, making the trial to last for years as against the provisions of the ACJA. I humbly submit that the law is trite that a hearing cannot be said to be fair if any of the parties in the matter (just as the defendant and or his Counsel) is refused or denied the opportunity to be heard by presenting his case especially as regard to a ‘speedy dispensation of justice or speedy hearing of the criminal allegations against him or speedy trial’ by the prosecution or the complainant I humbly rely on the cases of: Kotoye v C.B.N. (1989) 1 NWLR (pt. 98) 419; Saleh v Monguno (2003) 1 NWLR (Pt. 801) 221, Bamgboye v University of Ilorin (1999) 10 NWLR (pt. 622) 290; Mobil Producing (Nig.) Unlimited v Monokpo (2004) All FWLR (pt. 195) 575 at 628; (2003) 18 NWLR (pt. 852) 346. Also see: FAGBOLA VS. TITILAYO PLASTIC INDUSTRIES LTD & ORS (2003) LPELR 11112 (CA). I further humbly submit that ‘Fair hearing’ is a two-way traffic which both parties to a suit (including a criminal suit) ought to enjoy or be entitled to. See: the case of MFA & ORS VS. INONGHA (2014) 4 (NWLR) (Pt. 1397) 350. I therefore, humbly submit that the breach of the component of the right to fair hearing-audi alteram partem- meaning ‘hear the other party’ or ‘hear the other side or the various sides in a dispute before reaching a decision or judgment’ (renders a proceeding (just as the proceedings in the present consideration) null and void. Thus, the law is trite that, once allegation of breach of right to fair hearing is made, it is irrelevant whether or not the decision made subsequently is correct as the proceedings leading to such decision is null and void. I humbly rely on the cases of: Otapo Sunmonu (1987) 2 NWLR (pt. 58) 587; Tukur v Govenrnment of Gongola State (1989) 4 NWLR (pt. 117) 517; Kim v State (1992) 4 NWLR (pt. 233) 17; Salu v Egeibon (1994) 6 NWLR (pt. 348) 23. So, the court is by this paper, with due respect, discouraged from only considering the interest of the prosecuting counsel or the prosecution in a criminal case but to consider the interest of all the parties thereto as this is tantamount to doing ‘justice’ and having conducted a ‘fair trial’ in the case.

Respectfully to My Noble Lords, the Presiding Judges presiding over criminal cases, section 1(1) of the ACJA can be relied upon which provides the purpose of legislating on the Act and the mischief that the law makers who made the ACJA sought to cure by requiring ‘speedy trial or speedy hearing or speedy dispensation of justice’. Therefore, ‘lack of diligence’ by the prosecuting counsel is one of those acts which the ACJA sought to cure and same militates against the success of the ACJA which the court is to prevent to prevail. Therefore, the court presiding over criminal case should not entertain any excuse or act that would be adverse to ‘speedy dispensation of justice’ in the judge’s court whether that act emanates from the prosecuting counsel or the defence counsel.

Furthermore, regarding the ‘iii’ (of the listed purposes above): the Act seeks to ‘protection of the society from crime’. It would be observed that the Act has not in real sense displayed how it seeks to achieve this purpose or goal. Nevertheless, it is hoped that this provision would be backed up and or handled in line or along with a substantive criminal law or Act that would enable the success and or reality of the goal of this provision. This is more observable having regard to the prevalence of certain crimes such as: kidnapping; armed robbery; rape, etc. in the Nigerian societies at the moment which are still being governed by ACJA (whereas, ACJA is about nine (9) years old as of the year 2014, by my calculation).

Furthermore, having regard to ‘iv’ (of the listed purposes above): the Act seeks or aims to achieve the ‘protection of the rights and interests of the suspect, the defendant,  and the victim.’. With due respect to the law makers, the reality of this provision is to say the least, far from reality! The suspect suffers a lot beyond narrations in the hands of some of the security and law enforcement agencies of government and no step is taken by the supervising authority i.e. the Attorney-General of the Federation to issue a note or displeasure against such government body for the breach of this provision. The Attorney-General of the Federation should (pursuant to his conferred powers by section 105(1) of ACJA) set up a directive to the members of the public to report all sorts of harassment, torture, ill-treatment, abuse of human rights, disobedience to court orders, etc., that any of the security and law enforcement of government commits against any person and the Attorney-General of the Federation should be committed towards immediate investigation of such complaints with appropriate punitive measures against such violating officer. In my humble submission, it is in this way that this provision of the ACJA can be seen to be of reality! Our courts of law have issued some orders against some of the government security and law enforcement agencies but such orders (either for production of a suspect in that court for necessary consideration by the court or for other reasons or orders) have remained disobeyed. Perhaps by the supervisory powers of the Attorney-General of the Federation, the security and law enforcement agencies of the government would comply with such orders and amend their unlawful ways, with due respect (though, respectfully, I must state that the office of the Attorney-General of the Federation is not also a ‘saint’ against this complaint.

Section 1(2) of the Act:

(2)    The courts, law enforcement agencies and other authorities or persons involved in criminal justice administration shall ensure compliance with the provisions of this Act for the realisation of its purposes.

The actors in the Administration of Criminal Justice System are: the courts; the Prosecution; the Defendant (by extension, the Defence Counsel); and Nigerian the Correctional Service. The Act having taken cognizance of these actors, mandates that they shall all ensure compliance with the provisions of this Act for the realisation of its purposes.  In my humble submission, the ACJA being a statute, must be complied with, hence, the word ‘shall’ has been used by the Act in this subsection. I humbly submit that the word ‘shall’ as used in the said section 1(2) of the ACJA is ‘mandatory’ for and must be complied with and not optional. See: Bamaiyi V. A.G. Federation (2001) 12 NWLR Pt. 722 pg. 468 Ifezue V. Mbadugha (1984) 1 SCNLR pg. 427 Chukwuka V. Ezulike (1986) 5 NWLR pt. 45 pg. 892, Ngige V. Obi (2006) 14 NWLR pt. 991, pg. 1.”. See also Chika Madumere and Anor V. Barrister Obinna Okwara and Anor (2013) LPELR-20752(SC).

The Act has stipulated its requirement that ‘the courts’ shall ensure compliance with the provisions of this Act for the realisation of its purposes. To this extent, the court is now empowered to ensure that the interest of justice in a criminal case is tantamount to the interest of justice in ensuring that there is compliance (at least, substantial compliance) with the provisions of ACJA by all persons and or authority involved in criminal justice administration. The ACJA (as a general criminal procedure law, though along with other special or specific criminal procedures guiding some special offences) shall now be complied with. The law is clear that “Where a method or manner of discharging responsibility is stipulated by a statutory provision it is that method that must be employed: See Co-operative and Commerce Bank Nigeria Plc v. Attorney-General of Anambra State (1992) 8 NWLR (Pt. 261) 528, 556 para. G, the Supreme Court stated as follows: -“Now, it is the law that where a statute provides for a particular method of performing a duty regulated by the statute, that method, and no other must have to be adopted” In Nuhu Sani Ibrahim v. INEC & Ors. (1999) 8 NWLR (Pt. 614)334, 352 paras. E-F, this court per Salami, JCA said that – “It is settled law that where a legislation lays down a procedure for doing a thing, there should be no other method of doing it.” Also, The Supreme Court in Corporate Ideal Ins. Ltd. v. Ajaokuta Steel Co. Ltd. (Supra) Pp. 193 – 194, held as follow:- “It is the view of this court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this court in Adesanoye v. Adewole (2006) 14 NWLR (pt. 1000) 242 that in such a situation, the consequences of non-compliance follow notwithstanding that the statute does not specifically provide for sanction. This knocks the bottom off the submission of the learned counsel for the appellant in this case that because section 50(1) of the Act does not provide for sanction, the contract cannot be said to be illegal. A contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is to all intents and purpose illegal null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations. This court, and any other court for that matter would not be allowed to be used to enforce any obligations arising therefrom.”.

Section 2(1) of the Act:

2.(1) Without prejudice to section  86  of this  Act,  the provisions  of this Act  shall  apply to criminal  trials for offences  established  by  an Act of the National  Assembly and other offences punishable in the Federal  Capital  Territory,  Abuja.

The Act has explained that nevertheless, the ‘summary trial procedures’ provided for in section 86 of the Act, the entire provisions of the Act shall also be applicable to criminal trials for offences established by an Act of the National Assembly and other offences punishable in the Federal Capital  Territory,  Abuja. Furthermore, from this subsection, the Act has clearly expressed its areas or subject of application which are:

1. Criminal trials for offences established by an Act of the National Assembly (having general application to the whole Nigeria as a Federal Law or Legislation;
2. Criminal trials for offences established by an Act of the National Assembly punishable in the Federal Capital Territory, Abuja (FCT-Abuja, now being considered as a State and to this extent, all criminal laws on the Exclusive Legislative List the Concurrent Legislative List, and the Residual Legislative Lists in the FCT-Abuja, shall be governed by ACJA).

In essence, Exclusive Legislative List in the Part I of the Second Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution- upon which the National Assembly has the powers to make laws and those emanating and relating to the items on the Concurrent Legislative List in the Part II of the Second Schedule to the Constitution and offences by virtue of Existing Laws, for instance: the Economic and Financial Crimes Commission (Establishment) Act, 2004; the National Drug Law Enforcement Agency Act, 2004; etc. Also, those offences punishable in the Federal Capital Territory, Abuja, are offences relating to the Federal Capital Territory, Abuja-herein after referred to as FCT- as a State of the Federation i.e. for the unlimited offences on the Residual Legislative List, for instance: the Penal Code Act, Laws of Federal Capital Territory, Abuja, 2007, etc. Hence, based on the principles and system of ‘Federalism’ that Nigeria practices. Nigeria is a Federal State or Federation. Therefore, Nigeria operates a Federal System of Government. There are certain principles of a federal system of government: ‘A Federal System of Government’ is an association of free states where power is constitutionally shared by the federal, state and local councils, and with each tier of government exercising its constitutionally assigned powers and functions’. A Federal constitution or federal system of government is one that provides for separate structures of government at the national, state and local councils and with each tier having its own constitutionally assigned powers and duties. The powers of the different tiers of government are usually spelt out in legislative lists in the constitution of the country. The Exclusive Legislative List is for the Federal Government; the Concurrent Legislative List are powers shared between the Federal Government and States Governments to legislate upon provided that where there is a clash of laws, the law of the federal government usually prevails because it is the superior law or because it has covered the ground (or the field). The functions of a local government council on the other hand are also spelt out in the constitution clearly. Thus, there is division of powers in the constitution among the different tiers of government, each deriving its powers from the constitution. A federal country usually has a written and rigid constitution, duplication of government at all levels of government and so forth. Nigeria (as I stated earlier in this paper above) is a Federal State which operates a federal system of Government. See: Ese Malemi (of blessed memory) in his book ‘Ese Malemi, The Nigerian Constitutional Law, Princeton Publication Co., Ikeja, Lagos, Nigeria, First Edition, 2006, page 26. The Supreme Court of Nigeria in the case of INEC v. MUSA (2003) LPELR-24927(SC) while considering on the issue of ‘What does the legislative power of the National Assembly consist of?’. The Apex court held thus “The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.”.

Furthermore, Tobi, JSC in A-G, Abia State v. A-G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 352 paras. F-G and 353-354 paras. H-H; explained on the above provisions that: “There are two Legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section 4(2) only the National Assembly can exercise legislative powers on the 68 items. The Concurrent Legislative List contains 30 items… the Concurrent Legislative List clearly sets those items that the National Assembly can freely legislate upon. So to the House of Assembly of a State as it relates to Section 4(7) (b) of the Constitution. While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List, the House of Assembly can exercise legislative powers on matters contained in Section 4(7) of the Constitution. This in respect of matters not included in the Exclusive List set out in Part 1 of the Second Schedule to the Constitution and any matter included in the Concurrent Legislative List, set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column opposite thereto.”

Furthermore, on the dichotomy between Exclusive Legislative List and the Concurrent Legislative List, the Court of Appeal of Nigeria clarified this issue in the case of CHEVRON (NIG) LTD v. IMO STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41563(CA) while considering the ‘Scope of the powers of the House of Assembly of a State’ thus  ‘A careful perusal of the Second Schedule Part 1 which deals with Legislative Powers and in particular contains the items in the Exclusive List, list “Mines and minerals including oil fields, oil mining, geological surveys and natural gas.” as Item 39 of the Exclusive Legislative List. Again, as rightly submitted by the Learned Counsel for the Appellant, Item 68 of the Exclusive Legislative List also empowers the National Assembly only to make laws on any matter incidental or supplementary to any matter mentioned elsewhere in the List. From the above provisions, it is clear that only the National Assembly has power to legislate on mines and minerals, oil fields and oil mining and any matter incidental or supplementary to any matter or item mentioned in the Exclusive List. Therefore, any fallout from the activities of the Appellant in the course of mining or exploring oil should be within the exclusive preserve of the National Assembly to wade into it.’ Also, On what a ‘Residual Legislative Powers’ encapsulates, in the case of: A.G. OGUN STATE V. ABERUAGBA & ORS. (1985) 1 NWLR (PART 3) 395 at 405 C-D per BELLO, JSC, (later CJN of blessed memory) had the following to say thus: “A careful perusal and proper construction of Section 4 would reveal that the residual legislative powers of Government were vested in the States. By residual legislative powers within the context of Section 4, is meant what was left after the matters in the Exclusive and Concurrent Legislative Lists and those matters which the Constitution expressly empowered the Federation and the States to legislate upon had been subtracted from the totality of the inherent and unlimited powers of a sovereign legislature. The Federation had no power to make laws on residual matter.”.

Section 2(2) of the Act:

(2)    The provisions of this Act shall not apply to a Court Martial.

Here, the Act has already limited the scope of its application to the extent that the Act shall not apply to a Court Martial. Therefore, where an offence is subject to personnel subject to Court Martial, the provisions of ACJA may only be relevant to the extent that ACJA by section 2(2) excludes ‘Court Martial’ from its application. The Criminal Procedures and or Rules guiding the Court Martial would then be resorted to.

Finally, the above are my explanatory notes on the provisions of ACJA having been considered in this paper. This paper, I must say, is not a perfect interpretation or explanatory note in any case. Nevertheless, I hope it is beneficial to the reader in at least a way! It is my contribution to the knowledge of the law in my (own) little way and my personal reasoning and efforts (and I still remain a learner of the law). I shall consider other necessary provisions of the Act in my next ‘Project Series’. I may be reached by the reader for further engagement with me on the discourse through the below contacts.

Email: hameed_ajibola@yahoo.com           08168292549.