Is Section 396(7) of ACJA Constitutional? By Adegboyega Awomolo SAN

IN the Beginning, we all agreed that the British administration in Nigeria bequeathed a public service of dedicated, patriotic and disciplined officers. On October 1, 1960, Nigeria became an independent country with elected Nigerians in the legislative and executive arms of government. The judiciary consisted of men of learning, character and integrity and ranked among the best in the world.

In 1966, the army staged a coup whereby the Constitution of the Federal Republic of Nigeria was set aside, after the military took over the governance of the country. One of the grounds for the coup de tat was allegation of corruption against the politicians who occupied public offices in the executive and legislature.

Corruption continued to ravage Nigeria and at a point it was thought by eminent and credible Nigerians that corruption had dug deep into the fabrics of Nigeria and unless it was uprooted, it was capable of killing Nigeria.

The administration of criminal justice in Nigeria also became a victim of corruption to the extent that criminal trial of politically-exposed persons dragged on for many years.

Between 2007 and 2014, many allegations of corruption, abuse and misuse of public office by politically-exposed persons dragged on unreasonably and it was believed that corruption was winning.

Some judges of the high court who were hearing these cases were elevated to the Court of Appeal, resulting in these cases being heard de novo (from the beginning).

The prosecuting authorities complained of frustration and difficulties in gathering witnesses and it was suggested that a law be enacted to allow judges of the higher courts who may be elevated to come back to complete the hearing and deliver judgment.

The executive presented a bill for the Administration of Criminal Justice Act, which amended the Criminal Procedure Act and Criminal Procedure Code, which reflects in Section 396(7) of the ACJA.

In Section 396(7) of the ACJA, the National Assembly provided as follows: “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.”

The intendment of the provisions of the constitution is that judicial officers appointed by the President and sworn in by the Chief Justice of Nigeria can only perform the judicial powers or jurisdiction constitutionally assigned to each of the courts under the Constitution of the Federal Republic of Nigeria, 1999 with which the judicial officer took their judicial oath.

For the Federal High Court, specifically, and independent of other sections, the constitution, in sections 249-254, provide for the appointment of the judicial officers of that court whose duty includes the right to exercise the judicial powers under the provision of sections 251 and 252 of the constitution.

The powers conferred upon judicial officers, under the provision of each category of court is immutable. It cannot be altered by any person or authority referred to under Section 1 of the constitution. The National Assembly’s legislative powers to alter the provisions of the constitution can only be by an Act of the National Assembly to amend or alter the provisions of the constitution with the concurrence of two-thirds of the states of the federation – Section 9 of the constitution.

The implication of the provision of Section 396(7) of the ACJA is that a Justice of the Court of Appeal, lawfully elevated from the high court bench shall, at the same time, maintain dual appointments and exercise dual judicial powers in two different courts.

The question is whether the provision of the Administration of Criminal Justice Act is consistent with the provisions of the constitution and existing judicial decisions of the superior court relevant to this dual status.

Section 253 of the constitution provides that: “The Federal High Court shall be dully constituted if it consists of at least one judge of that court.”

The intendments of this provision, in our humble view, is that the jurisdiction conferred on the Federal High Court by virtue of Section 251 (1), (2) and (3) and 252 of the constitution shall be by, at least, one judge of that court – the Federal High Court only. Unless this provision is amended, no judge of the state high court, National Industrial Court or any judge of any other court of coordinate jurisdiction can constitutionally exercise the powers under Section 253, not being a judge of that court. The constitution specifically identified the judge as “one of that court.”

With respect, no Act of the National Assembly alone can amend, expand, alter or substitute “judge of that court” with any judge or Justice of the other courts established under Section 6 of the constitution.

For the Court of Appeal, Section 239(2) states that the court in its original jurisdiction shall be duly constituted if it consists of at least three Justices of the Court of Appeal.

In its appellate jurisdiction, Justices of the court can only exercise judicial powers to hear and determine appeals if it consists of not less than three Justices of the Court of Appeal. The meaning is that a Justice of the Court of Appeal cannot exercise the judicial powers of a “judge” of any other court or Justices of any other superior courts created under the constitution.

To eliminate misgivings, the National Assembly enacted the Court of Appeal Act with specific jurisdictions to the Justices of the court.

Section 3(2) of the Court of Appeal Act states 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.”

The appellate powers of the Court of Appeal in Sections 15, 18, 19 and 26 do not include hearing cases by calling witnesses and writing judgments as a court of trial.

We are of the view that this provision further shows the enhanced status and rank of a Justice of the Court of Appeal, which practically exceeds that of a high court judge of the Federal High Court.

It is important to note that the constitution referred to judicial officers of the Federal High Court as judges of that court, whereas it referred to judicial officers of the Court of Appeal as Justices of the Court of Appeal.

It is not in doubt and settled that in interpreting the provision or any specific section of a statute or indeed the constitution, such provision or section should not be read in isolation of the other parts of the constitution. In other words, the statute or constitution should be read as a whole in order to determine the intendments of the making of the statue or constitution. Please see Chief Odumegu Ojukwu v Chief Olusegun Obasanjo (1999) 7 SC (Prt 11) 30.

We hold the view, respectfully, that the hierarchy of superior courts of records in Nigeria is not made separate in the constitution for nothing. Indeed, the making and separation of the provision in respect of each hierarchy of court from high courts and terminated at the Supreme Court is deliberate.

The distinct qualification and the procedure for appointment and swearing-in of such judicial official is to establish the importance of each level, having regard to the responsibility that the constitution ascribed to each level.

A judicial officer, elevated from the rank of the high court to the Court of Appeal is not and cannot be equated with other judicial officers not elevated or considered and rejected for elevation. The makers of the constitution are presumed to have memory and cannot be pressured to have made the mistake in the separation of the mode of addresses, judicial duties and responsibilities of each level of the court.

It is settled law that jurisdiction is the life wire of adjudication and if a court has no jurisdiction to decide a case, the proceedings remain a nullity ab initio, no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication. Please see the cases of Olusegun Egunjobi V. Federal Republic of Nigeria (2012) 12 Sc (Pt. Iv) 148; Federal Republic of Nigeria & Anor V. Lord Chief Udensi Ifegwu (2003) 8 Scm 111.

It is clearly a contradiction of the judicial oath for the Honourable Justices of the Court of Appeal to descend to the lower court to hear uncompleted cases. It is invalid, null and void.

The Supreme Court has upheld the argument that effective from the date that Honourable Justice Nnaemeka-Agu became a Justice of the Court of Appeal, he ceased to be a judge of the Anambra State High Court and that when therefore on June 17, 1977, he gave judgment, he did so without jurisdiction.

There is the argument that counsel for the accused persons applied to the President of the Court of Appeal to give dispensation for a Justice of the Court of Appeal “to continue to function as a judge of the Federal High Court” after the swearing-in and taking of judicial oath as a Justice of the Court of Appeal.

The provision of ACJA, in our opinion, is seeking to compete with the express provision of the constitution. The Supreme Court, in Oloyede Ishola V. Ajiboye (1994) 7-8 Scnj 1, puts the law succinctly in these words: “The Constitution is supreme not only when another law is inconsistent with it but also when another law seeks to compete with it in an area already covered by the constitution”

The Administration of the Criminal Justice Act cannot give power to the President of the Court of Appeal to do a thing or act that is inconsistent with and violently in contradiction to the express words of the constitution.

The President of the Court of Appeal, having taken judicial oath to protect and preserve the Constitution of the Federal Republic of Nigeria, 1999, must refuse to act in such direction or law. The law is settled that the parties as well as the court are bound by the provision of the constitution.

We believe, most respectfully, that, neither the President of the Court of Appeal, the Honourable Justice of the Court of Appeal and the parties cannot compromise or agree to do an illegal thing. The agreement is a nullity and void.

The law is that when an act is void, it is void altogether and nothing can be placed on it.

On a lighter note, how would the Justice sign the judgment? If he signs as “a judge of the Federal High Court,” he lies; and if he signs as a Justice of the Court of Appeal, it is unlawful. How then does he sign?

What are the options and their consequences? The learned trial judge, if he concludes the trial, he may find the defendants guilty of the offences charged, convict and sentence them to various terms of imprisonment or fine or both. He may also find no merit at all or some of the counts and thereby discharge and acquit them.

The most probable consequence of such decision on appeal is setting aside the decision for being void.

My suggestion is that the prosecution should accept, professionally, to the re-arraignment of the defendants in a trial de novo. In such circumstances, where there were 10 or more counts, it should be reduced to a manageable three counts, having regards to the evidence available.

There is a suggestion that if after the appeal against conviction has been allowed on the grounds of inconsistency with the constitution, a re-arraignment should be considered.

This may be faced with a defence of preview conviction or acquittal under Section 36(9) which provides thus: “No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for the offence or for a criminal offence having the same ingredient as that offence save upon an order of a superior court.”

In all, the best option is to begin the trial de novo notwithstanding the provision of Section 396(7) of the ACJA.

Awomolo, a Senior Advocate of Nigeria, wrote from Abuja