By Mike Ozekhome
How will an elevated judge who tries a matter at the lower court from which he has been elevated sign his judgment
Last week Friday, the first tranche of this write-up was published. Today, we shall continue our enquiry into the constitutionality or otherwise of a judge, who having been elevated to a higher bench and continue to sit at the lower bench which he had vacated to continue to hear part heard matter.
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 competence 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.
In the case of CHUKWUMA V. NWONYE (2009) LPELR 4997 (CA), the intermediate court stamped imprimatur 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 conducted, 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 suo motu 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 overriding 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 NG- WUTA, J.S.C. (Pp.23-24, Paras. G-C)”.
In the causa celebre on jurisdictional issues, MADUKOLU V. NKEMDILIM 2 SCNLR 341, (1962) 1 ANLR (Pt. 4) 587, the apex court laid down the following conditions 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 fons est origo, the grundnorm 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 competence to do so is sufficient for such a judge to recuse himself. Afterall, justice is rooted in confidence.
To be continued