Virtual Court Proceedings in the Nigerian Legal System: Constitutional Challenges and More

Introduction

 

The outbreak of the Corona virus (more technically referred to as Covid-19) brought with it drastic implications in the activities of man the world over. No doubt, the pandemic hit the business of people everywhere in the world when the only generally acceptable means of preventing and treating the disease was isolation, with the direct implication that everyone stays at home. Of course the practice of law is not any different.

Society must, no doubt, move on, against all odds; and part of the greatest gifts of man’s acumen is its power of innovation, to adapt to new trends and situations in order that one does not live behind the time. However, a supreme gift of man to society, too, is the law, which bears to regulate virtually every activity of man and ensures order in the society, man having searched in vain for the philosopher king. So, no matter the innovation or genius of man, the law is always there to test to which extent man’s activity is acceptable in any given society.

The Nigerian legal system has faced such an unforeseen difficult moment as did other areas of life following the lockdowns, social distancing, restrictive orders, etc, that are the direct indices of a concerted effort at fighting the Covid-19 virus. Courtroom practices were halted as courts were shut down and pending matters faced indefinite protractions. It means that justice is automatically delayed, would one argue that it is justice denied in this case? I think it’s neither here nor there.

Virtual Court Proceedings

The above situation and more led to the proposition that the Nigerian legal system should adopt virtual court proceedings whereby counsel and court can communicate and conduct proceedings via internet enabled media such as: zoom, skype, et al without the physical presence of the lawyers, and perhaps parties, in court. It is a process enabled by the Information Technology (IT) system which has like wildfire traversed the length and breath of human activities and taken them to a different new dimension. Of course the practice is already common among journalists and other practitioners, and one will not deny the inestimable advantages thereof, especially as it has become the perfect way to contain the menaces of the present day pandemic as it relates to trial lawyers. One learns that some courts and arbitral bodies are already using it.

Virtual Court Proceedings and the Constitution

This author is of the view that as innovative and welcome the idea of the virtual court proceedings is, same, like every other activity in life, must be tested within the confines of the laws of the land, and in this case, the supreme law of the realm. That is the principle of legality: that there has to be lawful authority, legal backing, for the activities of man and government, including judicial proceedings and the procedures therefore.

It is the humble opinion of this author that it is just recently that the rules of some courts recognised electronic service of court processes by such methods as e-mail, whatsApp and text messages, phone calls, etc. Text messages and phone calls have recently been used by the Court of Appeal to serve hearing notices in some cases and they were deemed properly so served by the court. The same situation is also applicable to electronic law reporting which has found a veritable place in the job of court and counsel, that today with law pavilion, legalpedia, etc, a trial lawyer has access to the authorities he needs in the prosecution of his case just by a mere click of his phone or tablet. But what about the actual court proceeding?

The 1999 Constitution of the Federal Republic of Nigeria, section 36(3) thereof, relating to civil causes, provides as follows:

“The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal shall be held in public.”

Section 36(4) of the same Constitution further provides:

“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:

Provided that –

1. a court or such tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice.
2. if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be disclosed, the court or tribunal shall make arrangements for evidence relating that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”

The doctrine of constitutionalism simply insists that every activity done in law must fall within the provisions of the constitution, or, put the other way round, must not derogate from any provision of the constitution, to say the least. As Professor Vile rightly pointed out in his book, Constitutionalism and Separation of Powers:

“Western institutional theorists have concerned themselves with the problems of ensuring that the exercise of governmental powers, which is essential to the realisation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote.”

Furthermore, an American commentator, R. Kay, had written: 

 

“The special virtue of constitutionalism…. lies not merely in reducing the power of the state, but in effecting such reduction by the advance imposition of rules.”

In the context of the topic of this discourse, one is called upon to examine to what extent the proposed virtual court proceedings, despite its many perceived advantages, is in line with extant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), before considering the likely challenges and vicissitudes that may be collateral therewith.

In determining civil rights and obligations, the constitution expressly and without exception forbids trial of matters anyhow else than in public. See section 36(3) reproduced above. In criminal cases, the constitution in section 36(4) prescribes public trial and in the proviso thereof excludes certain situations whereupon the court or tribunal being satisfied, certain person may not be allowed to witness the proceeding and where such proceedings may be conducted in private for the reasons listed in (a) and (b). It therefore becomes easily discernible that the constitution intends the conduct of court proceedings in public, even in judgments and rulings.

But salient issues that agitate the mind include: to what extent does virtual court proceedings qualify as trial in public and to what extent does the constitution foresee virtual court proceedings?

In resolving the issues raised in the preceding paragraph, it will be apposite to juxtapose the actual proceedings that we are used to with the novel virtual court proceeding already described in the introductory paragraphs to this essay. In the actual proceedings, the judge and court staff, counsel and clients physically appear in court, sign cause lists and prosecute their matters. In criminal matters, the police and correctional service officers play vital roles in producing the defendants and taking them back into lawful custody. The court and counsel must be properly robed as prescribed by law. And that is the practice we are used to.

But in the virtual court proceedings, as the name suggests, the need to be physically present in court is dispensed with. Counsel stays in the comfort of their home, connect the court with electronic gadgets that can show their live image and the court’s, and conduct proceedings.

It is our humble submission that the constitution of the Federal Republic of Nigeria did not envisage the situation of virtual court proceedings, and so it could not have provided for it. The grund norm copiously prescribed trials to be in public. Even the provisions in provisos (a) and (b) do not contemplate or in any way infer virtual court proceedings. Proviso (a) talks about exclusion of certain persons from gaining access to court proceedings in specified situations, whereas proviso (b) talks about trial in private i.e. outside the open courtroom, perhaps in the judges chambers.

There is no way the provisions of (a) and (b) can be read to insinuate virtual court proceedings, and this author holds the view that virtual court proceedings is strange to the highest law of the land which has explicitly stated how court proceedings should be conducted and a judex will be acting ultra vires his powers as conferred by the constitution to conduct a virtual hearing of a matter. Whenever a statute provides for a way of doing a thing, that way and no other should be followed; and the express mention of a thing is the exclusion of others. The constitution has clearly prescribed what should be done and in what manner, this author holds the view that the constitution has stated ‘a fair hearing in public’. Courts do not act in vaccuo.

More Challenges of Virtual Court Proceedings

Aside the paucity of constitutional guarantee for virtual court proceedings in Nigeria, more challenges seem to bear to adversely affect its success in our corpus juris and society. It is said that before one sets out on a venture, good judgment warrants that one takes a critical appraisal of the said venture and see to what extent one is prepared for the challenges that follow in order not to dissipate energy for nothing and like Professor Vile said supra “be destructive of the values it was intended to promote.” The likely challenges include:

Lack of Adequate Facilities and Expertise

It remains to be rather imagined than asserted how seasoned our judexes and staff, even counsel, are to be able to adapt to the virtual court proceedings. More worrisome is the availability of facilities that will offer the virtual platforms. This author by this constraint excepts the A-league and mega law firms with state-of-the-art facilities and periodic training for their legal and para legal staff that technological cum digital advancement has become their other names; no, this author refers to the real VIP’s, those everyday lawyers and law firms which make a living from the defence of criminal defendants who have barely a dime or none at all to pay. How will accused persons who are in custody be present in virtual proceedings? How will the police and correctional service officers discharge their duties? Or will some cardinal rules of criminal jurisprudence be jettisoned? Even, most of our courts and judexes alike do not even possess the wherewithal to embark on this venture. How do we proceed with virtual court proceedings where e-filing of court processes a gaping issue? So how ready are we?

Frauds and Sharp Practices

We live in a society and time of internet frauds and sundry activities. The police and the Economic and Financial Crimes Commission have had busy moments fighting, detecting and prosecuting the notorious yahoo practitioners over the years, and yet there seems to be no close end to that unwholesome vocation. A very vicious cankerworm eating deep the root of law practice is that of sharp practice which has pervaded the justice system in measures too numerous to count. Some lawyers have excelled in sharp practices beyond perfection; while some persons have already made names for themselves as wizards of the Information and Communication Technology (ICT) industry and can photoshop, crop, clone and even give life to non-existent ideas using the computer and internet. A mixture of genius in ICT and disposition to sharp practice readily spells doom for a justice system that is not adequately fortified for this mighty challenge. If with our manual and actual court proceedings, sharp practices have faired this well, how much more in virtual court proceedings where only a few know so much and the authorities can hardly checkmate? Questions of tendering of documents, admissibility and admission of evidence, etcetera, will definitely prove serious waterloos.

Internet Services Provision and Sundry Issues

We live in a country of epileptic power and internet services provision. The country’s consumer protection of citizens from the snares of paid precarious public utility providers has been comatose. It is not in doubt that most remote areas in Nigeria to this day are yet to be reached in terms of internet services provision, whereas it is as good as absent in some other areas that can detect signals from a communication mast afar off. The place of functional internet services in the effective running of virtual court proceedings can only be likened to that of diesel to an engine, and where the provision is below par? Your guess is as good as mine.

We are constrained to state that granted the need is due for the all-important baby that is virtual court proceedings, given the present realities, it must however pass through its own gestation period, lest we birth an evil child that will ruin the empire it was sought to take over. Once it’s worth doing at all, it’s worth doing well.

Uche Amulu writes from Maitama, Abuja. He is the Founder and Principal Partner of Uche Amulu Legal.

Address: No. 9 Osun Crescent, Maitama Abuja.

Email: willsables@gmail.com.

Cell: +234 806 424 0996

A Rejoinder to Uche Amulu’s Commentary On the Supreme Court of Nigeria’s Recent Decision in Orji Uzor Kalu v. FRN.

I read with much pleasure, my learned friend, Uche Amulu’s commentary and the analysis contained therein, of the recent judgment of the Supreme Court of Nigeria (hereafter, “SCoN”) in the case of Orji Uzor Kalu v. FRN (hereafter “Orji Kalu”). For purposes of brevity, I will adopt the facts of the case and his summary of the judgment as he laid them out. I may however add or proffer an alternative summary, which Mr. Amulu may have not included (for good reasons I believe) if need be. I have also read the said Judgment of the SCoN.

As he had already noted, the relevant laws to this analysis are (1) the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) which hereafter shall be referenced simply as “the constitution” and (2) the Administration of Criminal Justice Act 2015 (hereafter ACJA).

My review of the SCoN’s judgment is conducted from two main legal perspectives or methods, viz the black- letter or doctrinal method and the socio-legal methods. In acknowledgement of the divergent definitions that these two terms lend themselves, let me clarify what I mean in reference to the black-letter or doctrinal and the socio-legal methods.

For the purposes of this rejoinder, my use of the term “black-letter” method of analysis refers to an analysis or review of the judgment from a strictly legal perspective and on a correctness (as opposed to reasonableness) standard. This is a method of analysis that will simply examine the SCoN’s judgment in the light of the “letter-of-the-law”. For that reason, I sought to determine what the SCoN said the law is (viz-a-vis the relevant sections/provisions of the constitution and ACJA) and offer my opinion on whether or not they are correct in that their interpretation of those laws.

On the socio-legal analysis, I analysed the SCoN’s judgment from a reasonableness standard, taking into account, its impacts to and consequences for (a) The constitution, (b) Cost of Litigation and Access to Justice (c) Integrity and Administration of the Criminal Justice system particularly AND (d) The integrity and administration of the overall litigation/court systems in general.

In conclusion, I offer some recommendations on how remedy the effects or consequences of the SCoN’s judgment.

The Black-Letter/Correctness Analysis

It appears to me, that the central issue on the appeal to the Supreme Court was whether or not the trial Judge, M.B. Idris J (as he then was and now JCA) was a Judge of the Federal High court within the meaning of sections 249 (2)(b), 250, and 253 of the constitution, when he rendered judgment and convicted the defendants in the Orji Kalu case. Framed differently, the appeal was a direct challenge to the validity and constitutionality of section 396 (7) of the ACJA 2015. Again, Mr. Amulu has laid out these provisions in his initial commentary, and I adopt them as laid out for this rejoinder. However, just to put things into perspective, the said section 396(7) of the ACJA gives or (now more accurately) purported to give “a judge of the High Court, who has been elevated to the Court of Appeal . . .dispensation to continue to sit as a high court judge” so as to conclude “any partly-heard criminal matter pending before him at the time of his elevation”.¹

The undisputed fact in this case was that Idris J, had already subscribed to the oath of office as a Justice of the Court of Appeal at the time of rendering the judgment. Secondly, he received a “fiat” pursuant (purportedly) to the said section 396(7) of the ACJA, from the President of the court of Appeal (PCA) to go back and conclude the said Orji Kalu trial. I supplied the emphasis above for a reason to be addressed later.

I have read arguments that the defendants (or at least one of them) in the Orji Kalu case actually sought the dispensation of the PCA upon which Justice Idris returned to conclude the trial and that therefore it was ‘unconscionable” for them to benefit from the irregularity that they had themselves authored. In my opinion, this is of no moment because it is settled law from a long line of decided cases that neither the court nor parties can confer jurisdiction on a court that lacks one, whether by express agreement or by implied conducts.²

The Supreme Court determined that Idris (JCA) “having been elevated to the Court of Appeal, has ceased to be a Judge of the Federal High Court. Accordingly, he had been deprived of whatever jurisdiction he had as a Judge of the Federal High Court” to further adjudicate on the Orji Kalu trial and render judgment on it. Eko (JSC), delivering the unanimous Judgment, further held that section 396(7) of the ACJA was inconsistent with section 290(1) of the 1999 constitution. Applying section 1(3) of the constitution, he declared the said section 396(7) of ACJA void to the extend of its inconsistency.

I do not quite agree with a finding section 396(7) of ACJA inconsistent based on section 290(1) of the constitution. But in any case, saddled with the same task, and on strict application of the black-letter method, I would have arrived at the same conclusion but on the basis of section 253 of the constitution, as opposed to section 290(1) of it. Section 253 of the constitution which established the jurisdiction of the Federal High Court, states that the court shall be deemed properly constituted “if it consisted of at least one judge of that court”.

It follows therefore, again speaking strictly from a black-letter perspective, that at the time of rendering the judgement, M.B. Idris is a not a judge of the Federal High Court. And where once the SCoN has found section 396(7) to be inconsistent with the constitution, his status as a Justice of the Court of Appeal at the time of the judgment renders the said judgment bereft of jurisdiction.

The question that needs to be considered, but perhaps not on a black-letter consideration of the judgment, is whether two things can be said to be in conflict or inconsistent with each other if they are complimentary to each other and ultimately reconcilable. This line of thought will be considered in the socio-legal analysis of the judgment.

On a strict application of the principles of jurisdiction as laid down in the seminal case of Madukolu v Nkemdilim, the trial court in the Orji Kalu case, (a la Idris J) because it was not “properly constituted” is therefore bereft of jurisdiction³, and the effect/consequence of any judgment delivered by a court without jurisdiction is, has always been and may well continue to be, a nullity⁴.

While I may agree with Mr. Amulu in his analysis that “section 396(7) of the ACJA [was]enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction”, I do not however believe that they effectively achieved that aim. The power to grant dispensation to conclude a trial at the Federal High Court was vested in the President of the Court of Appeal, thereby negating the effects of section 19 (3) & (4) of the Federal High Court Act which vested the power of administration and assignment of cases in the Chief Judge of the Federal High Court. That, in and of itself alone, is problematic.

On the basis of the foregoing analysis, and having read the full transcript of the Supreme Court’s reason for its decision, this is surely not one of those judgments that you wonder what exactly is the law it applied or how they came to their conclusion. The Supreme Court, having approached its interpretation of the relevant sections of the constitution literally and rigidly (I may add), was entitled to the conclusion that it reached and can therefore, in my opinion, not be faulted on a strict black-letter based analysis of the extant laws.

The Socio-Legal/Reasonableness Analysis

As we all know, the effects and consequences of judgments go beyond the immediate parties for who they were rendered/delivered. The grand purpose or duty of a court of law is, in my opinion, to do justice. Granted that there may not be a generally accepted/acceptable definition of what justice is/entails, what is justice is not or does not entail is however not as controversial.

A court of law must always be guided by this primary purpose, as with the rules of law, in approaching its decisions. With respect, I feel like the SCoN, by its decision in the Orji Kalu case, sacrificed substantial justice on the alter of doctrinal affirmation or discipline. I say that because, this case, no matter the way you look at it, turns on constitutional interpretation, on a simple phrase in the constitution (i. e. “one judge of that court” in section 253) and finally turns on a balancing exercise between the competing rights, factors and interests in this case.

As Mr. Amulu rightly noted, the constitution, though clearly states that the Federal High Court is only properly constituted when it has at least “. . . one judge of that court”: who or what ”. . . one judge of that court” means/refers to, had not received any prior Judicial interpretation. This was an opportunity for the SCoN to render that interpretation, bearing in mind, the aims, purpose and objectives of the Administration of Criminal Justice Act 2015, as well as other equally poignant factors that will be outlined shortly.

In my opinion, a reasonable approach to interpreting or defining who/what “one judge of that court” means is not the literal interpretation approach or rule which the SCoN seems to have adopted in this case. In the English seminal case of Dupont Steel v Sirs which seems to be the foundational precedent for statutory interpretation in most common law countries, Lord Justice Diplock had this to say about the interpretational role of the courts⁵:

“When Parliament legislates to remedy . . . a defect or a lacuna in the existing law . . . the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it”.

A corresponding Nigerian authority in this regard is the case of Rabiu v State where the SCoN had this to say specifically about constitutional interpretation⁶:

“In interpretation of the Constitution, mere technical rules of interpretation are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution Where the question is whether the constitution has used an expression in the wider or narrow sense, the court should whenever possible and in response to the demands of justice, lean to the broader interpretation unless . . . narrower the interpretation would best carry out the object and purpose of the constitution”

Also, in AG Lagos State v. Eko Hotels Ltd & Anor, the SCoN restated this position when it held that⁷:

“ . . . where the meaning [of the Constitution] is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention”.

From the purpose of ACJA 2015, it was clear that it set out to cure some defects/mischiefs in the administration of criminal justice. Its purpose was said to promote⁸:

“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”.

Applying these authorities, I will submit that the phrase “one judge of that court” does not immediately lend itself to a clear and unambiguous meaning, especially when viewed in the light of said section 396(7) of ACJA, which until this judgment, was a valid law. It is my opinion, that the SCoN, should have approached their interpretation of both section 290(1) and 253 of the constitution in such a manner that would not defeat the central purpose of ACJA or metastasise the mischief or defect (viz unreasonably long periods of trial) that the said section had intended to cure/remedy. By its interpretation, I argue that the Supreme Court has rather than “save” the constitution (as many commentators were quick to assert), further endangered the constitution in the following ways.

Hampers the Actualization Fair Trail Within Reasonable Time, Liberty/Freedom of Movement

Section 37 of the constitution guarantees “fair hearing within a reasonable time” in the “determination of . . . civil rights and obligations” of all citizens. This is a right that is more on paper than attainable for most Nigerians encountering the criminal justice system. With no pun intended, Eko (JSC), had conducted a review of the instant section 396 of ACJA, particularly its subsection 2, and acknowledged that that section, as well as section 395(2) of ACJA and section 36(1) of the Constitution are “all about . . . speedy trial”⁹.

It will sadly be the case, following this judgment, that criminal trials will continue to take longer (double the time) whenever the instance such as was the case in Orji Kalu arises and the trial Judge is elevated to the Court of Appeal. The aspect of this that undermines the fairness of such trial is in the case of a less wealthy defendant (or complainant). Assuming that the defendants in this case were not persons with the financial wherewithal to prosecute their defence to whatever length required. The implication for a less wealthy defendant will be a doubling of the cost of the trial, which could hamper the quality of representation that defendant receives where such defendant is no longer able to afford the services of a good/senior lawyer and is then forced to hire probably a new wig. On the reverse, the opponent is the Federal (or State) government, with ‘unlimited’ resources.

When considered further in the light of the fact that the prosecution viz-a-viz the State/FRN (and not the defendant) would have caused the elevation of the Judge, it becomes even more unconscionable and unfair that this would be the legal principle because the defendant is being thrown into undue hardship for the actions of the prosecution.

The impact of this on personal liberty is best appreciated when liberty is viewed beyond physical liberty¹⁰. Anyone who has been subject or part of litigation (whether criminal or civil) will understand the emotional and mental toll that it takes on the participants. Recall that sometimes, the defendants may be on onerous bail conditions that places severe restrictions to a lot of things in their lives, including movement (travelling abroad is the most common). The Supreme Court itself agreed this much when it held that seizure of international passport of a citizen amounted to an incursion into that citizen’s freedom of movement in Director of SSS v Olisa Agbakoba¹¹.

On the basis of these analysis, I will adopt the words of the Supreme Court itself in Rabiu (supra) to submit that by this Judgment in Orji Kalu, it has defeated “the principles of government enshrined in the constitution” a la fair trial, trial within a reasonable time, liberty and freedom of movement.

Increases the Cost of Conducting Litigation and Access to Justice

As I noted earlier, the implications of this judgment go beyond the immediate defendants and also beyond the prism of criminal Law system. In a country like ours where the justice system and the judiciary itself are known to be susceptible to influence or manipulations, elevation of trial judges could be the next tactics for obstructing justice and frustrating poorer litigants from accessing the individual justices in their case.

Imagine an influential defendant or plaintiff (including government or a government agency) who knows that his or her case is weak (whether criminal or civil), and just influences the elevation of the trial judge on the eve of judgment. Think about the proverbial case of the poor widow and the rich/influential opponent; where the poor widow strives with the last drop of her possessions to try and reclaim her property that the so called influential opponent had snatched off her, and after about 5 years of trial, whether by the making of the rich/influential opponent or not, the Judge is elevated to the court of appeal on the eve of rendering judgment. By this time, the widow is more probable than not to have run out of resources and may not be able to finance a whole new trial as a result of this.

On the basis of this Orji Kalu judgment, that widow’s access to justice has been undermined, if not totally denied.

Undermines the Integrity of Criminal Trials and Its Investigations

Cases such as the Orji Kalu case is one which perhaps the evidence is not time sensitive. However, there are trials and criminal investigations that its evidence and the underlying investigation may be sensitive to passage of time (rape/sexual assault may be one of them). With this judgment and the consequence thereof a la trial de novo, this legal principle may have only contributed to denying the victims in such cases justice for no error or wrongdoing of their own.

Consider the implications of this judgment to malicious and politically-motivated prosecutions that we all know, go on in Nigeria, then you will understand why this decision could very easily become a tool for oppression and persecution more than anything else. Defendants could very easily be arraigned on trumped-up charges, and on the eve of their acquittal, the trial Judge is elevated to the court of Appeal so as to start their ordeal afresh.

Undermines the Integrity of Litigations Generally

One scenario to illustrate this point is our election petition cases, which the constitution stipulates has to be concluded within a set timeframe (180 days I believe). I would not think it is beyond what a desperate government in power could do to frustrate any given election petition matter in which it fears might not be favourable to it, by causing the elevation of a member of such tribunal on the eve of concluding the matter so as to begin a new hearing, by which the 180 days may either completely elapse, or no longer be enough to take the matter up till the last appellate court for review.

On the basis of these socio-legal considerations, I will submit that the decision of the Supreme Court in the Orji Kalu case is impeachable on a reasonableness standard.

The Way Forward

It still remains the duty and obligation of the legislature to make/amend laws. Truth remains that if the legislature had done its duty thoroughly and properly with respect to the vexatious section 396(7) of ACJA, the Supreme Court will have no issue giving effect to it.

Having said that, I am of the strong view that the durable and sustainable cure to this defect in the ACJA is a constitutional amendment, that would:

1. permit Justices of the Court of Appeal to serve as Judges of the respective High Courts from where they have been elevated to the court of appeal, on an agreement/arrangement between the President of the Court of Appeal and the Chief Judge of that High court, for the purpose of concluding “partly-heard” matters in the interest of Justice
2. Alternatively, High Court Judges elevated to the Court of Appeal may be prohibited or prevented from subscribing to the oath of office as Justices of the court of Appeal, until after such time that hey have concluded “partly-heard” and “imminently-ending” trials pending before them at the High Court. As an incentive, this could be done so that for the purposes of their rights and privileges as Justices of Court of Appeal, their time in office as JCAs would start counting at the date of their appointment as opposed to the date of their subscription to the oath of office as JCAs, which could be a long time after due to delays in concluding cases at the High Court.

Ikenna Aniekwe writes from Toronto, Canada and apologises for the length of this commentary.

Ikenna Aniekwe holds a Bachelor of Engineering degree (Elect/Elect - Power Option) from Nnamdi Azikiwe University, Awka Nigeria; an LLB (Summer cum Laude) from the University of the West of England, Bristol UK, BL from the Nigerian Law School and most recently, an LLM in International Business and Human Rights Law (research) from the prestigious Osgoode Hall Law School of York University, Toronto Canada.

Ikenna is also a Senior Associate at NICCOM LLP niccomllp.com where he brings his wide breadth of his experience into bear in advising on the firm’s most remarkable works. 

Prior to his sojourn into Law, Ikenna was (and still retains a substantial interest as) a renowned filmmaker with skills in screenwriting, Directing and Producing with over 50 Film titles to his credit.

He also has a hobby and a side career in football, with a certification and license from the Footballer Association of England and Wales in Adult football coaching. He is also a member of the Nigerian Referees Association for over a decade, a registered member of the Referees Association of England and Wales (Non-active) and of the Canadian Soccer Referees Association. 

Ikenna is an avid researcher of law with a broad interest in International Law and Human Rights generally; particularly the effects of International Business norms and practices on Human Rights in the Global South. He hopes to proceed on a PhD studies in the near future.

Citations:

1 Administration of Criminal Justice Act, 2015, s. 396 (7)

2 See Braithwaite v. Skye Bank PLC [2012] LPELR-15532 (SC)

3 (1962) All NLR 578 at 594

4 See Matari & Ors v. Dangaladima & Anor [1993] LPELR-1846 (SC)

5 [1980] 1 All ER 529

6 [1980] 8-11 SC 130

7 [2006] LPELR-3161 (SC)

8 Administration of Criminal Justice Act 2015, s.1 (1)

9 Destra Investment Ltd v. FRN & Anor [2018] LPELR-43883(SC)

10 Section 35 of the constitution guarantees personal liberty

11 (1999) LPELR-954 (SC)

A Pandora’s Box: Legal Implications of the Supreme Court of Nigeria’s Recent Decision in Orji Uzor Kalu v. FRN

Background Facts:

The Supreme Court of Nigeria in the recent appeal in Orji Uzor Kalu v FRN was presented with the opportunity to revisit the age-long doctrine of the supremacy of the Nigerian Constitution above every other law of the land. The Hon. Justice M.B Idris of the Federal High Court (as he then was) had been presiding over Charge No: FHC/ABJ/CR/56/07 FRN v. Orji Uzor Kalu & 2 Ors, a serving law maker in the Senate of the Federal Republic of Nigeria under the umbrella of the ruling All Progressives Congress (APC) and Governor of Abia State between May 29, 1999 and May 29, 2007.

Characteristic of most criminal trials before the coming into effect of the Administration of Criminal Justice Act in 2015, the trial had suffered quite chequered a history, same having been on-going since 2007. The Administration of Criminal Justice Act which was largely received by both Bar and Bench as the long-awaited Messiah-law came in force to eschew the technical and procedural bottlenecks which were making names for themselves as the waterloos that stalled criminal proceedings in Nigeria. Life was much easier, or so we thought.

After the close of the case of the prosecution, the defence team of Sen. Orji Uzor Kalu filed and argued a No Case Submission but before ruling was delivered on same the Hon. Justice M.B. Idris was elevated to the Court of Appeal and was duly sworn in. The defence team vide a letter dated 26^th June, 2018 which was served same day applied to the President of the Court of Appeal for a fiat to enable the Hon. Justice M. B. Idris to descend to the Federal High Court and conclude the trial. The said application was made pursuant to section 396(7) of Administration of Criminal Justice Act, 2015. Apparently, they had hoped that their No Case Submission would be granted and the trial would be over. Their request was favourably considered and my Lord, the Hon. Justice M. B. Idris, descended to the Federal High Court, delivered ruling on the No Case Submission and held that the Defendants had a case to answer. I can imagine the disappointment of the Defendants and counsel.

As is typical of every defence counsel, this humble author inclusive, it was time for serious strategizing and tinkering. Then, as in Archimedes principle: Eureka! The defence team filed a motion asking the Hon. Justice M. B. Idris, who they had requested his return to conclude the trial, to recuse himself for the reason that he has been elevated to the Court of Appeal. Of course the judex would have none of it. The resultant appeal up to the Supreme Court ran concurrently with the substantive trial pursuant to the provisions of the Administration of Criminal Justice Act. The Defendants were convicted by the Hon. Justice M.B. Idris and sentenced accordingly.

The Supreme Court empanelled a full court and heard the appeal from the refused motion which judgment was delivered on Friday, 8^th May, 2020 wherein they struck down section 396(7) of the Administration of Criminal Justice Act, 2015 on the premise that it runs in the face of section 253 of the 1999 Constitution of Nigeria (as amended). The apex court further held that the President of the Court of Appeal lacked jurisdiction to issue fiat to Hon. Justice M. B. Idris to descend to the Federal High Court to conclude a part-heard criminal case.

The Relevant Laws:

1999 Constitution of the Federal Republic of Nigeria (as amended) CFRN

Section 1

1. This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
2. ………….
3. If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.

Section 4

1. The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

Subsections 2, 3 and 4 with their schedules provide for the items the National Assembly can legislate on: the peace and good government of the Federation, Exclusive Legislative List and Concurrent Legislative List.

Subsection 8 clearly provides that the legislative powers of the National Assembly and that of the House of Assembly of a state shall, save as otherwise provided by the constitution itself, be subject to the jurisdiction of courts of law established in the subsequent section and of judicial tribunals established by law, and that the legislature shall not enact a law which acts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law.

Section 249

1. There shall be a Federal High Court.
2. The Federal High Court Shall Consist of -

1. Chief Judge of the Federal High Court; and
2. Such number of Judges as may be prescribed by an Act of the National Assembly.

Section 252

1. For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall the powers of the high Court of a State.
2. Notwithstanding subsection(1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to more effectively exercise its jurisdiction

Section 253

The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court

Administration of Criminal Justice Act, (ACJA) 2015

Section 396(7)

“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.”

Judicial Disposition Prior to the ACJA 2015

The Supreme Court had clearly in the civil case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 SC 32 held that the Hon. Justice Philip Nnaemeka-Agu, then a Judge of the High Court of Anambra State (God rest his soul) was wrong to have come back to deliver judgment in the matter after his elevation to the Federal Court of Appeal. This disposition was followed in a long list of subsequent cases such as: Bichi v.Shekarau (2009) LPELR- 3874 CA, etc.

May it be humbly noted that there was no statutory provision on the issue of whether a judge who has been elevated to a superior court can descend to the inferior court for the purposes of finishing up uncompleted adjudication. The Nigeria legal system, particularly the federal prosecutors, even defence counsel and courts alike, were faced with challenges and bottlenecks that stalled criminal proceedings to the extent that cases lasted nearly forever without resolution, and among such challenges was the recurrent issue of elevation of judges of a high court who have criminal cases uncompleted and which would be made to start de novo. Then the National Assembly in 2015 birthed the Administration of Criminal Justice Act with some innovative and proactive provisions among which is section 396(7) thereof, which has come under the heavy axe of the Supreme Court.

The entire issue in this article bothers on jurisdiction, which is the life-wire of every adjudication by a court; but we shall dwell squarely on the palpably conflicting laws, and the issue of jurisdiction would have readily been sorted out.

Was the (ACJA), 2015 Duly Enacted by the National Assembly?

It is the humble opinion of this author that the Administration of Criminal Justice Act, (ACJA) 2015 was duly and properly enacted by the National Assembly as it complied with the procedure laid down by the Constitution reproduced supra, save, albeit arguably so, for section 253 thereof. At least it complied entirely with the legislative powers in section 4 CFRN and did not flout section 4(8), not until section 396(7) was tested in the apex court viz-a-viz section 253 of the CFRN.

Does Section 396(7) of the ACJA, 2015 Flout Section 253 or any Other Provision of the CFRN?

The Supreme Court of Nigeria has said the last word on this question when it answered in the affirmative and struck down section 396(7) of the ACJA 2015 having regard to section 1(3) of the CFRN. However, this author thinks otherwise, albeit for academic purposes.

My reasons:

Section 249(2) of the CFRN provides: “The Federal High Court Shall Consist of – (a) Chief Judge of the Federal High Court; and (b) such number of Judges as may be prescribed by an Act of the National Assembly.”

Section 252(2)of the CFRN provides: “Notwithstanding subsection(1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to more effectively exercise its jurisdiction.”

Section 253 of the CFRN provides: “The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court.”

Underlining supplied.

Section 396(7) ACJA, 2015 provides: “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.”

In all honesty and with profound respect to the Supreme Court of Nigeria, section 396(7) ACJA, 2015 does not in any manner detract from or curtail the provisions of section 253 of the CFRN. It is easily discernible that section 396(7) of the ACJA rather enlarged the frontiers and scope of the intendment of the provisions of the CFRN on the issue of elevation of a judge which was not envisaged by the CFRN. It filled a lacuna instead, and that is part of the very reasons for making lesser laws. We humbly submit herein that for a provision of law to contradict or contravene another, the said law would have provided the opposite of that other, either expressly or by implication, and that cannot safely be said of section 396(7) of the ACJA in relation to section 253 of the CFRN.

The above position is even more clearly buttressed by section 252(2) of the CFRN which clearly provides that “….the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to more effectively exercise its jurisdiction.”

Underlining supplied.

This author is of the strong belief that it was desirable and necessary that section 396(7) of the ACJA be enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction as clearly provided by the CFRN, and the Hon. Justice M. B. Idris, Justice of the Court of Appeal, was right when he relying on the provisions of law cited herein continued to sit on the case as though he was still a judge of the Federal High Court.

Some questions that easily call to mind include: does section 253 of the CFRN envisage the situation my Lord, the Hon. Justice M. B. Idris found himself in? Of course the answer is nay nay. Whereby the CFRN does not, would any law, section 396(7) of the ACJA in this case, be wrong or said to fly in the face of the CFRN and of course declared ultra vires when it provides for such situation not envisaged by the CFRN? A nay nay, too.

It is clear that the literal rule of interpretation does not aid the approach of the apex court in this instance. So whither the purposive, golden and mischief rules of statutory interpretation? That which is not prohibited is allowed. So whereby the CFRN has not barred an elevated judge in deserving circumstances, to come back to conclude his pending part-heard cases, a lesser statute will be proper to take care of the situation.

It is also my view that no where in the CFRN was the phrase ‘Judge of that Court’ as featured in section 253 was defined to exclude a judge who has been elevated to the higher bench, while minding the express and specific provision of section 396(7) of the ACJA. For the purposes of the law in force when he sat in the case in the Federal High Court, the Hon. Justice M. B. Idris was sitting as a judge of that Court. That is the only interpretation discernible from the situation.

I am also of the view that the CFRN is the framework of our body of laws and cannot provide for all eventualities. That is why it gave law making powers to the National Assembly and State Houses of Assembly in section 4 thereof to make lesser laws that will more appropriately attend to the emerging situations; ditto the laws such as the Supreme Court Act, Court of Appeal Act, Federal High Court Act, and High Court Laws of various States, all laws made by the legislature to extend the frontiers of already existing constitutional provisions to reflect specific realities. It follows that the lesser laws provide for more specific situations with the aim of carrying out the spirits and intendment of the CFRN. That was what section 396(7) ACJA did, to our mind, and to hold as did the Supreme Court in this case was taking technicality a bit too far.

It cannot be the law that any situation not provided for or envisaged in the CFRN, albeit specifically provided in another law, would not stand. The opinion of a justice who participated in hearing an appeal but who has retired at the time of judgment can be pronounced, in what capacity does the said judex render his opinion? There was no need to invoke section 1(3) CFRN by the apex court.

Legal Implications of the Decision of the Supreme Court in Orji Uzor Kalu & 2 Ors v FRN

The fore-most legal implication of the decision of the Supreme Court in the appeal is that section 396(7) of the ACJA is no longer part of our body of laws. But there is more to it.

It would also suggest that such laws as sections 22 of the Supreme Court Act and section 15 of the Court of Appeal Act which both provide that the Supreme Court and the Court of Appeal can hear an appeal and determine same as though they were courts of first instance are bad laws, given that the original jurisdictions of those courts have been explicitly provided for in sections 232 and 239 of the CFRN. With this trend, we could fore-see many good laws falling like soldiers in a war front.

It remains my humble view that perhaps section 252 (2) of the CFRN was not drawn to the attention of our noble law Lords at the Supreme Court, else they would have decided otherwise; even as no injustice was identified to have been meted out on the appellants by the fact that the elevated judex came back to conclude his part-heard case.

I think that this decision of the Supreme Court stands to function more as a Pandora’s Box which would likely open a flurry of litigations challenging the legality of lots of other valid laws which have been enacted by the National Assembly for the peace and good government of the Federal Republic of Nigeria. More sections of the said ACJA could still come under the heavy hammer of the court, and the purpose for making the law would have been more defeated than achieved.

One will decline to comment on the conduct of the proceedings by counsel as each counsel is the master of their facts and best judge of the lawful tactics and strategies they choose to adopt in the prosecution of their cases.

The author admonishes more circumspection on the probable collateral effects of certain decisions on our body of laws so that everything that was built over time does not crumble with one fell swoop.

Uche Amulu writes from Maitama, Abuja. He is the Founder and Principal Partner of Uche Amulu Legal.

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