Demonization Of The New Administration Of Criminal Justice Act 2015: A Worrisome Trend

The enactment of the Administration of Criminal Justice Act 2015 has been applauded as an outstanding step taken by the Federal Government of Nigeria in recent times to redress the poor administration of criminal justice system in Nigeria. However, if the legal battles currently raging in some criminal trials across various federal courts and the courts in the Federal capital territory are anything to go by, then there is a real danger that the rigorous efforts put in by our draftsmen towards the enactment of that Act will be rubbished by the clever arguments of some defence lawyers.

Section 306 of the Administration of Criminal Justice Act 2015 which was recently passed by the immediate past National Assembly and signed into law by the former president Goodluck Ebele Jonathan, has been described as a bad law by some criminal law attorneys in Nigeria.

Section 306 of the Administration of the Criminal Justice Act, 2015 prescribed that “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.”

The very object of this particular section of the new act (which is stay of proceedings in criminal actions at the courts) was until the inception of the new act, at the exclusive discretion of the courts. Such judicial discretion which ought always to be exercised judiciously was sometimes exercised otherwise in many cases when lawyers breath hot air on the neck of the court positing the ‘need for the court to defer trial’ to make room for the appellate court’s wisdom. This argument comes alongside with the argument favouring the need for the court to respect hierarchy of courts(especially when an appeal is involved) and all sorts of argument as to what happens when the verdict of the appellate court becomes variant with the court’s ruling or judgment and how a contrary outcome of the case at the appellate court will make a nonsense of the proceedings of the court if the court refuses to grant a stay of proceedings pending the determination of the appeal at the appellate court. These arguments were the major spikes used to jab the wheel of quick administration of criminal justice system in Nigeria. This explains why a criminal trial can take up to ten years or more for it to be concluded at the court of first instance in Nigeria.

The tactics of stay of proceedings is a foremost weapon of the defence team used (especially when the defendant is on bail) not only to delay the course of justice but actually to weary the court and the prosecution and ultimately to evade justice. How it works is that the defense attorney will object to every conceivable procedure taken in the course of the criminal trial. Such procedures may range from the mode of service of a charge sheet on the defendant to the jurisdiction of the court to entertain the matter, to the power of the prosecution to prosecute, to the arraignment of the defendant, to the tendering of exhibits etc. As these objections are ‘flying in’ from the defence team, so also any ruling of the court adverse to these objections are countered by applications for stay of proceedings occasioned by the appeal filed or sought to be filed by the defence team against that particular adverse ruling of the court.

Thankfully, the National Assembly have made an act (law) expressly prohibiting all federal courts and all courts of the federal capital territory from entertaining such application for stay of proceedings in criminal trials. If the courts cannot entertain such application, then they cannot grant such relief prayed for. This has barred the defence and even the prosecution from bringing any such application. By implication, this law has equally obviated the need for the exercise of discretion by federal courts and all courts of the federal capital territory over applications for stay of proceedings in criminal trials which is what used to be obtainable before the new act.

Unsurprisingly, defence attorneys have cleverly resorted to the views of retired Justice Roseline .N Ukeje (a former chief judge of the federal high court) in her book titled ‘Nigerian Judicial Lexicon’published in 2006 at page 203 where the learned jurist described the inherent powers of the court formerly employed by the courts to stay proceedings as follows:

““Inherent powers of the court cannot be taken away or abridged by legislation, for he who gave, he only can take away. This explains section 6(6)a of the Constitution of the Federal Republic of Nigeria 1999 which merely recognized and stated the obvious that the inherent powers of a court of law exist notwithstanding anything to the contrary in the constitution for such powers were not granted by the constitution.”

The above view has been employed by several defence attorneys as legal arguments to demonize section 306 of the new act and make it of none effect for being ultra vires with Section 6(6) a of the Constitution of the Federal Republic of Nigeria 1999. These legal pundits have posited that Section 306 Of The Administration Of Criminal Justice Act (ACJA) 2015 have robbed the courts of its inherent powers to grant a stay of proceedings in exercise of its discretionary power and is therefore at variance with the constitution, thus it cannot stand. Enormous pressure has therefore been mounted by these defence attorneys on different courts that are trying criminal matters (especially high profile matters) urging these courts to jettison the clear provision of this new act and to continue to grant stay of proceedings in defiance of the clear provision of the act. This actually is the reason for this article.

A court once created by law is vested with jurisdiction/power (jurisdiction and power though slightly different is used to depict the authority and ability of the court respectively) to function effectively and efficiently as a court. The entire gamut of jurisdiction which is vested on a court is known as general jurisdiction. This general jurisdiction consists of statutory jurisdiction and inherent jurisdiction.

The Supreme Court in Eleazor Obioha .v. Innocent Ibero and Anor (Unuwari family) 1994 1 NWLR part 322, page 503 defined General jurisdiction of a court as the

“unrestricted and unlimited powers of the court in all matters of substantive law both civil and criminal except in so far as that has been taken away on unequivocal terms by statutory enactment”.

The Supreme Court went ahead to define Statutory jurisdiction as the

“powers of the court created specifically and vested on the court by the statute establishing it. Statutory jurisdiction/powers are expressly defined and the limits which the courts can exercise them are stipulated by the creating statute.”

Inherent jurisdiction of a court has been defined by Duhaime’s Law Dictionary as

“the residual, automatic and ex officio authority of a court of law to regulate proceedings before it..”

Jerold Taitz a South African jurist in his book “The Inherent jurisdiction of the Supreme Court” defined inherent power/ jurisdiction of a court

“ as the unwritten power without which the court is unable to function with justice and good reason. As will be observed below, such powers are enjoyed by the court by virtue of its very nature as a superior court modeled on the lines of an English court. All English superior courts, English colonial superior courts which succeeded them are deemed to possess such inherent jurisdiction save where it has been repealed or otherwise amended by legislation.”

Wikipedia defined Inherent jurisdiction as “a doctrine of the English common law that a superior court has the jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal.”

It has also been referred to as those powers that are reasonably necessary for the administration of justice in the courts. The ‘inherent jurisdiction’ of the courts is the power inherited by the courts from customs and usages passed down from the English common law. It is of common law origin. Originally, inherent powers of courts are powers conferred on courts in England by certain customs and legislations and subsequently received in Nigeria by the statute of general application which makes the laws and custom of the courts of England applicable to the courts in Nigeria. An example of inherent power of the court and what is not an inherent power of the court has been given by the Supreme Court in Eleazor Obioha.V. Innocent Ibero and anor supra at pages 520, 521, 524, 525-527 to wit that:

“the power of the courts to vary their own judgment/orders by way of correcting clerical mistakes/errors from any accidental slip/omission is an inherent power of the court…It is not inherent exercise of the jurisdiction for the court to dabble into matters that the statutes, constitution or the rules of courts have made jurisdictional provisions for.”

The Supreme Court further held that inherent powers should not be extended beyond what the statutes or constitution or the rules of court provide. This means that the courts cannot assume jurisdiction where it has no jurisdiction and cite ‘inherent jurisdiction’ as its reason for assuming jurisdiction.

In addition, though inherent jurisdiction can be exercised where there is no statutory provision of the law on the subject matter, all inherent powers /jurisdiction that a court may exercise must not contravene any statutory provision of the law.- Eleazor Obioha.v. Innocent Ibero and anor supra.

In the Supreme Court case of Tinubu.v. Khalil and Dibbo Transport Ltd (2000) 11 NWLR (PT. 677) 171, the respondent argued that the trial court had an inherent power under section 6(6)a of the Constitution of the Federal Republic of Nigeria 1979 (which is in pari material with section 6(6)a of the Constitution of the Federal Republic of Nigeria , 1999) to non-suit or strike out actions even where the rules of the court failed to provide for such powers. Uwaifo JSC delivering the lead judgment rejected the argument of the respondent and held thus:

“…although section 6(6)a Constitution of the Federal Republic of Nigeria 1979 provides that the judicial powers vested in the courts shall extend to all inherent powers and sanctions of a court of law, it has not been decided that a court of law can make an order of non-suit even where the rules of that court appear to have dispense with that power.”

The Court of Appeal in Jombo .V.Petroleum Equalization Fund (2001) 10NWLR part 722, page 705 at page 717, para C held that

“Majority of the judicial powers of the Federal Republic of Nigeria are vested in the conventional courts under section 6 of the Constitution of the Federal Republic of Nigeria. They are only unfettered when there is no real ouster clause. That being the case, the judicial powers vested in the courts though broad and all-embracing are normally limited by its distinct and special jurisdiction and competence. For that reason, where a competent decree/act clearly ousts the jurisdiction and in this case the discretion of a court of law, it is safer for the court to surrender and bow to the wishes of the lawmakers and honorably decline jurisdiction.” (words underlined are mine)

The Supreme court in the consolidated cases between T.A. Yonwuren .v. Modern Signs Nig Ltd; between John Ememoh & Anor v Chief Daniel .O Onokpite & ors; between Udealo Nwaora v Nwannoli Nwakonobi & ors (1985) 1 NWLR part 2, page 244 has held that the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court so long as it can do so without contravening any statutory provision. Even the Court of Appeal in Ikeni V Efamo (1997) 4NWLR part 499 page 322 at page 328 adopted the above stated judgment. It also adopted another Supreme Court judgment and held in paragraph H thus:

“inherent powers of the court should not be extended beyond what the statutes, the constitution and rules of court provides. There is nothing inherent in the powers of a court which is not covered by a law. To assume jurisdiction where none exists is not inherent power simply because a court feels it would be just so to do…”

In addition, the Supreme Court of Canada in College Housing Co-operative Ltd.v. Baxter Student Housing Ltd (1976) 2SCR, page 475 held that:

“Inherent jurisdiction cannot be exercised so as to conflict with a statute or rule.”

Before the advent of the Administration of Criminal Justice Act 2015, the power of the courts to stay proceedings in criminal trials was a power exercised discretionally by the courts under its inherent powers which the courts exercise after the applicant must have shown the court cogent reasons why such application should be granted, however that particular inherent power of the court has now been dispensed with in Section 306 of the ACJA, 2015. For a court to hold otherwise will therefore tantamount to insinuating that the common law should be chosen in place of our indigenous statutes and case laws. This definitely is not tenable in the Nigerian legal system. Consequently, the views of retired Justice Roseline Ukeje in her book mentioned above with greatest respect is not the correct approach of the law to inherent powers of the court and hence cannot and should not be relied upon by attorneys and courts to suppress the clear dictates of the Administration of Criminal Justice Act 2015 especially its section 306.

Section 306 of the Administration of Criminal Justice Act 2015 is therefore not a bad law and holding otherwise will continue to foster and perpetuate backwardness and laxity in the Nigerian Criminal Justice system.

This article is written by Lawrence Nnoli Esq, the Managing Partner of Nnoli Lawrence & Associates (Excel Law Chambers).