“Sitting of Judges: Disagreeing with a learned Senior Advocate” where I argued against Chief Mike Ozekhome, SAN’s position that the said provision is unconstitutional. The said article was not without reactions from lawyers. I believe that among the lawyers that reacted openly I have more lawyers aligned or agreed with my position than those against it. Out of about two or three lawyers that disagreed with my position, I will in this write up try to be fair to them by reflecting some of their views here for proper rebuttal as I have promised a comprehensive rejoinder to their reactions. In reaction to my position, a learned colleague had this to say: “Please take time to read Section 253 of the Constitution. It is hard law not emotion. The Constitution ought to be amended first before S. 396 (7) of the ACJA was passed. Those judges you mentioned to have stepped down from SC to the Court of Appeal resigned their positions at d SC and ceased to be Justices of that court. In the current situation, they are CA Justices who were just elevated and are not stepping down” Section 253 of the Constitution says the “Federal High Court shall be duly constituted if it consists of at least one judge of that court”. It is a well known fact that the law is settled on this. In Nigeria, we have only one Federal High Court and all its divisions are for administrative convenience. I asked my learned colleague, what was the implication of this on the issue in contention as I want to be more educated? My learned colleague responded: “It says FHC shall be duly constituted if it consists one judge of that court .For instance, is Idris JCA a judge of FHC having been elevated to the CA and sworn in? have your read the case of Oloriegebe Vs. Omotosho where Section 63 (1) of the High Court Law of Northern Nigeria was declared inconsistent with Section 238 of d 1979 CFRN which is pari material with S. 253 of 1999 CFRN? In that case , S.63 of the HCNN Law provides that when a High Court is hearing appeal from Shariah Court, it shall be duly constituted if it consists of three judges including a khadi or grand khadi of d Shariah Court of Appeal . Section 238 CFRN on its own says the High Court shall be duly constituted if it consists of one judge of that Court. The Supreme Court held that a Khadi or grand Kadi is not a judge of the High Court of Kwara State. They cannot constitute that court only a judge of that court can for all purposes” My response to my learned colleague was that he had made a very good point which we shall all examine together. That I did not change my position but would again go back to restudy the case of OLORIEGBE Vs. OMOTOSHO (1993) 1 SCNJ 30 which I remember was one of those cases we brainstormed on when we were in Law School for the purpose of further discussion and rebuttal. I added that, to me I have not seen anything harmful in the said Section 396 (7) of ACJA on the issue at hand and my learned colleague agreed that “Yes, it is not harmful but it is unconstitutional”. Honestly from my own personal point of view, I do not see the relevance of the case of Oloriegbe Vs. Omotosho to the present circumstance when an elevated judge to the Court of Appeal is allowed “to sit as a High Court Judge, only for the purposes of concluding any part-heard matter, pending before him at the time of his elevation”. In the case in question, the Supreme Court interpreted a provision in the High Court Law of Northern Nigeria (HCNN) which I believe was a law enacted long before the 1979 Constitution came into force. It was one of the colonial laws in force even before the creation of various states. It must also be noted that during that period some High Courts particularly in the Northern region were being presided over by the white judges who were not learned in the Islamic law particularly when sitting as appellate court on Shariah related matters which made such provision necessary. I stand to be corrected on this. Surely with the coming into force of the 1979 Constitution, you cannot expect such provision to stand .If that provision had read “Three judges of that court one of whom must be learned in the Islamic or Shariah Law”, I believe the decision of the Supreme Court would have been otherwise. In the book titled: LEGAL LUMINARIES, I had written about the late Hon. Justice Mohammed Bello, a former Chief Justice of Nigeria on what happened in 1978 prior to the promulgation of the 1979 Constitution: “…In 1978, when there was a debate among members in the Constituent Assembly over the establishment of a Federal Sharia Court of Appeal to run parallel with the Federal Court of Appeal .While the Muslims supported the proposal, the Non Muslims opposed the proposal and the situation then nearly led to serious crisis as Muslim members walked out of the Constituent Assembly and the situation became very tense. Justice Bello along with Justice Mamman Nasir and Justice Buba Ardo came out with a workable solution and compromise that instead of having a separate Federal Sharia Court of Appeal, a division should be created under the Federal Court of Appeal to be known as Sharia Division to be manned by Justices learned in both Sharia and Common Law. This arrangement was accepted, saved the situation and subsequently led to the appointment and elevation of Justices Basir Wali and Uthman Muhammed to the Court of Appeal.” Law is not static but continues to develop. Today we have many judges on the High Court bench who are very learned in Common and Shariah Law as well as the Customary Law. Likewise we have many Area Court, Customary Court, Magistrate Court, Shariah Court of Appeal, Customary Court of Appeal Judges who are on bench today that are equally more learned in Common and Customary law. Some of them will rise through the rank to the Supreme Court. Now some states’ judiciary have started replacing the laymen presiding on the customary court bench with lawyers. Another learned friend on the other side of the divides in reaction to my previous article said: “Remarkably, you have failed to answer the legal argument that allowing Justices of the Court of Appeal to continue to sit as High Court judges is an affront on the Constitution. The learned Justice Taylor who stepped down from Supreme Court to serve as CJ of Lagos did not continue to sit in both courts for any reason. The good intention behind the provision in ACJA is not legal argument .It cannot change the legal position. To use good intention to substitute the law is to overthrow the law and enthrone subjectivity. We can never be unanimous on the good that comes from the provision. I am wondering whether these elevated judges of High Court do not have work at the Court of Appeal. If they are more useful in the High Court, why were they elevated in the first place?” In as much as I appreciate the courage of my colleagues on the other side for speaking out to state their own position, I want to say with due respect that it was either they did not understand my position or they did not want to face the reality on the ground .I am not contesting that an elevated judge is not an elevated judge. What the ACJA says is that such elevated judge is allowed to conclude ONLY the part heard matter pending before his elevation so as to avoid a situation where the matter will start afresh before another judge. I have extensively explained this in my previous article and my learned friend is here saying I have failed to answer the legal argument. Where is the failure when I even referred to some of my earlier articles such as the SUPREME COURT: ENDING THE ENDLESS LITIGATION; LAMENTING THE SLOW DISPENSATION OF JUSTICE and EXAMINING THE PROPOSED LAGOS STATE HIGH COURT CIVIL PROCEDURE RULES? Are the lawyers on the other side comfortable with the slow dispensation of justice in this country? Another question that we all need to answer is that: why must an accused/defendant or his counsel not want an elevated judge that started his trial conclude it but want the trial starts afresh before another Judge if the accused/defendant has a cogent defence to his case and has no skeleton in his cupboard? Assuming a trial has gone on for two years and almost getting to the conclusion in the third year and the trial judge is now elevated, will an accused/defendant with a clean and solid defence prefer the case to start afresh before another judge or he will want the elevated judge handling it conclude the matter? I am of the view that it is only an accused/defendant or his counsel that has no confidence in the success of his case and want to elongate, or frustrate the case that will want the case to start afresh .As to those judges who were said to have resigned their appointments from the Supreme Court to take up appointments at the Court of Appeal or the High Court, the question on that still remains unanswered and I still repeat same : Can anyone say these great jurists descended to the lower bench to belittle themselves? In the part two of Chief Mike Ozekhome, SAN’s argument, it has further been argued that an elevated judge empowers by the ACJA to conclude the part heard matter before him should rather send the case file back to the Chief Judge of Federal High Court or High Court for reassignment to another judge. Will this exercise hasten or slow down the dispensation of justice? The contention that the ACJA grants “dual citizenship” to the elevated judges as both Judges of Federal High Court or High Court and Justices of the Court of Appeal to me does not hold water. Since they have been elevated to Court of Appeal, they are Justices of that court but only on special judicial assignment to the High Court to conclude the part heard matters before them before their elevations to avoid unnecessary delay and waste of time in those cases. Can those judicial officers usually send to the Election Petition Tribunal be said being granted “dual citizenship” in that special judicial duty? Can anyone also argue that those judicial officers have no work doing in the courts from where they are sent to the special judicial assignment? While I want to agree with Chief Mike Ozekhome, SAN that “Justice is rooted in confidence” as propounded by the great Lord Denning of all times, this is another situation where one can again call into aid, another immortal words of the Master of Rolls. Since a lawyer on the other side has conceded that Section 396 (7) of ACJA is not harmful but only that it is unconstitutional, the questions now are: Is it unconstitutional because such thing has never been done before? Will it not be proper to use this Section to enhance the quick dispensation of justice in the criminal trial this time around when people are fed up with the delay in our judicial system? It has become relevant and necessary here to borrow from the words of Lord Denning in the case of PARKER Vs PARKER (1953) 2 ALL E.R. 121: “What is the argument on the other side? Only this, that no case has been found in which it has been done before .That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere .The law will stand still while the rest of the world goes on and that will be bad for both.” Likewise, the argument that the Section 396 (7) Administration of Criminal Justice Act is a frontal attack on the Constitution of the Federal Republic of Nigeria does not appeal to me also in the least. The provision is an innovation that will enhance quick dispensation in the administration of justice. In the case of ARIORI Vs. ELEMO (1983) 1 SC, the our great late Eso, JSC lamented that a case fought for 20 years still unfortunately did not come to an end and would have to be sent back to the trial court to be reopened again. Hon. Justice Ogbuagu , JSC descended heavily on the appellants in the case of OSHOBOJA Vs. AMIDA (2009) 18 NWLR (Pt. 1172) at Pg. 207 Paras A-B, who fought legal battle for 54 years. In the case of HENSHAW Vs. EFFIANGA (2009) 11 NWLR (Pt. 1151) Pg.65 at 88 Paras C-E, Omokri, JCA lamented that the case had been on for 26 years as at time the judgment was delivered by the Court of Appeal that ordered that the case should be remitted back to the trial court for retrial. In the case of SOCIETE BIC S.A. & 2 Ors Vs. CHARZIN INDUSTRIES LTD. (2014) 4 CLRN Pg. 26 Lines 29-40 ,Rhode Vivour , JSC also lamented that the case took 19 years to resolve the simple issue of jurisdiction and the case still had to go back to the trial court. Please go and read what Hon. Justice Uwais , a former CJN said in the case of AMADI Vs. NNPC (2000) FWLR (Pt. 9) 1527; (2000) 10 NWLR (Pt. 674) 76 and let me hear from you. Our learned colleagues on the other side may still counter argue that all these cases are civil matters. Such argument will also not appeal to me in the least, except they can convince me that the justice delay in the criminal matters is different from the justice delay in the civil matters. Is Section 396 (7) of ACJA a frontal attack on the Constitution of the Federal Republic of Nigeria? Which schools of thought do you belong to? Should the cold war continue till the Supreme Court call for a cease-fire? REMARKABLE PRONOUNCEMENT ON JUDGMENT OF COURT judgment of the court must demonstrate in full a dispassionate consideration of the issues properly raised and heard and must reflect the results of such exercise. Per COKER , JSC in Ojogbue Vs. Nnubia (1972) 7 NSCC 478 at 482. THE SETTLED PRINCIPLE OF LAW On effect of failure to prove essential ingredients of an offence It is well settled that in addition to failure to prove essential ingredients of the offence, the case of prosecution may fail and the accused not required to defend himself if the evidence is so manifestly unreliable having been destroyed by cross-examination of the witnesses that no reasonable tribunal will convict on that evidence. See Daboh Vs. State (1977) 5 SC 197; OKORO Vs. THE STATE (1988) 12 SC Pt. II Pg. 103, Line 21-27 For more Settled Principles of Law and Remarkable Pronouncements from our Supreme Court Jurists from 1956-2016, obtain or order for your copies of LAW PRACTICE KIT and LEGAL LUMINARIES. Call or text 08055476823, 08164683735 or email:rasheedibraheem68@yahoo.com. Your library is incomplete without these books. 9th December 2018]]>