-May 8, 2020, news/comments.
Some people talk politics. Others dwell on sentiments, fiction and propaganda. Most humbly, I talk law, based on facts. Cold, hard facts and indeed, history guides me. Posterity is the judge. Events always vindicate me. This has been the trajectory of my life. Almighty God, I thank you.
The Supreme Court of Nigeria has just vindicated my two year struggle that provisions of the Administration of Criminal Justice System (ACJA) are inferior to the overriding powers of the Constitution, the ground norm and font et origo of our democratic dispensation. A full seven man panel of the apex court presided over by Justice Amina Augie, in a lead judgment delivered by Justice Ejembi Eko, nullified and set aside the unfair and unjust conviction of Sen. Orji Uzor Kalu. Kalu had been sentenced to 12 years imprisonment by the Hon. Justice Mohammed Idris; a judgment that was upheld by the Court of Appeal. The Supreme Court has now reaffirmed that a Justice of the Court of Appeal cannot operate as a judge of the Federal High Court. It therefore ordered a fresh trial by another Judge.
Brief background Facts
On 25th September, 2018, I filed a motion before Justice Mohammed Idris, on behalf of Orji Uzor Kalu, prayerfully requesting the erudite Justice (Judge?) to recuse and disqualify himself from further trying Kalu, as he (Justice Idris), had been elevated to the Court of Appeal on 22nd June, 2018. The following day, 26th September, 2018, I argued the motion in proceedings that lasted for about 4 hours. The pith of my argument was that Justice Idris, having been elevated to the Court of Appeal, was no longer qualified to sit as a Judge of the Federal High Court, and was thus disqualified from trying Kalu.
I contended that section 396 (7) of the ACJA which permits a High Court Judge elevated to the Court of Appeal to continue with and conclude a part heard matter was in gross conflict with the provisions of sections 1(1), 1(3), 238(2), 239, 240, 250(2) and 253 of the 1999 Constitution, and therefore liable to be struck down. I cited, inter alia, the earlier Supreme Court case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 S.C 32. I therefore urged the court to remit the case file back to the Chief Judge of the Federal High Court, for reassignment to another Judge.
The learned trial Judge in a very brief ruling held that though my argument was “compelling and the issues raised recondite and paramount”, he would still go ahead and hear the case since the same issue had earlier been raised (albeit orally) and he had overruled same. He concluded that since his earlier ruling on the matter was already being challenged at the Court of Appeal, he would go on with the trial. He therefore adjourned the matter to the following day, 27th September, 2018, for hearing. On that 27th September, however, the court adjourned the “matter sine die, considering all the factors surrounding the case, fiat and the motion argued yesterday”.
The case was therefore put in abeyance for a while, till the fiat earlier issued to the trial judge was again renewed. He thus continued with the trial and convicted Kalu, a judgment that has just been finally set aside by the apex court.
However, because of the serious constitutional issues involved in the matter, I did not rest on my oars. On 29th November, 2018 and 5th December, 2018, I took on the issues headlong in a two part series in my “HARD FACTS” Wednesday weekly column in the Sun Newspaper, titled, “The Constitutional validity or otherwise of an elevated Judge continuing with part heard matters at the lower court”.
I also wrote a four part serialization in my weekly column in the Lawyer pages of Thisday newspaper, “TALKLING CONSTITUTIONAL DEMOCRACY”, on the 4th, 11th, 18th and 25th of December, 2018.
I did not handle the case on appeal
For the records, I was not the Counsel who argued the appeals at the Court of Appeal and Supreme Court, which had arisen from the trial judge’s earlier refusal to recuse himself based on an oral application. This was before my argument on 26th September, 2018, based on my fresh formal motion filed 25th September, 2018. I genuinely believe that justice has been finally served. Below is my earlier complete write-up on the legal position which has just been vindicated and upheld by the Supreme Court. (See Thisday (Lawyer pages) of 4th, 11th, 18th and 25th December, 2018). Kindly read on. “The constitutional validity or otherwise of an elevated judge continuing with part hard matters at the lower court”
It is no longer news that many Judges who have been elevated to the Court of Appeal from the various High Courts and Federal High Courts across Nigeria are still continuing with the hearing of matters that were part heard before their elevation. What is perhaps not known to most Nigerians is that such Judges were actually, on the 22nd of June, 2018, elevated to the Court of Appeal from the said lower courts.
In insisting on trying such part heard matters at all cost, come sun, come rain, the judges are perhaps relying on section 396(7) of the Administration of Criminal Justice Act (ACJA), which came into effect on the 15th of May, 2015. The section which was passed, perhaps in good faith, to prevent prolonged cases being heard de novo, provides 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 purposes of concluding any part-heard criminal matter, pending before him at the time of his elevation and shall be concluded within reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal”.
The issue for determination
The question that begs for answer is whether, a Judge, having been elevated to the Court of Appeal, can still sit to try cases at the High Court or Federal High Court, relying on section 396(7) of the ACJA. Our humble answer is in the negative. For starters, section 397(7) ACJA appears to be a frontal attack and violation of sections 238(2), 240, 250(2) and 253 of the Constitution of the Federal Republic of Nigeria, 1999, as altered and decided cases on the subject matter. To that effect, the section is null and void by virtue of section 1(1) and section 1(3) of the said 1999 Constitution, which provide as follows:
- The Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
- If any other law is inconsistent with the provisions of the Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”.
See the cases of AG ABIA STATE VS AG FED. (2002) 6 NWLR (PT. 763) 204 and ABACHA VS FAWEHINMI (2000) 4 SC (PT. 11), PAGE 1.
By virtue of section 6 of the 1999 Constitution, as altered, the judicial powers of the federation are vested in the courts of law as established by the Constitution. By section 6(5) thereof, the Court of Appeal is created as one of the superior courts of record. The jurisdiction of the Court of Appeal is as provided for in sections 238 – 240; with section 248 giving the president of the Court of Appeal powers to make rules regulating the court’s practice and procedure.
The original and appellate jurisdiction of the court of appeal
By virtue of sections 239 and 240 of the Constitution, the original and appellate jurisdiction of the Court of Appeal to which these Judges have been elevated since June, 22, 2018, do not extend to the hearing or trial viva voce, of criminal matters pending before the High Court or Federal High Court. Section 239 deals with its original jurisdiction, and it provides as follows:
“Subject to the provisions of this Constitution, the Court of appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether –Any person has been validity elected to the office of President of Vice President under this Constitution; of the term of office of the president or Vice- President has ceased; or The office of president or Vice-President has become vacant”.
Section 240 of the Constitution of the Federal Republic of Nigeria, 1999, as altered, on the other hand, which deals with the appellate jurisdiction of the Court of Appeal, provides as follows:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be described by an Act of the National Assembly”.
It is incomprehensible why trial judge would insist on continuing with part heard matters six whole months after their colleagues with whom they were sworn in and with whom they took oath of office as Justices of the Court of Appeal should still descend to the lower Bench and belittle themselves by answering the title “Judge of the High Court” or “Judge of the Federal High Court”, when their appropriate title has since changed to “Justices of the Court of Appeal”, since 22nd June, 2018, when they vacated their High Court or Federal High Court seats upon elevation to the Court of Appeal.
The Federal High Court that still harbours some these promoted Judges has sections 251 and 252 dealing with its jurisdiction; whilst sections 249-254 deal with appointment of its judicial officers. By virtue of section 253 of the Constitution, “the Federal High Court shall be duly constituted if it consists of at least one Judge of that Court”. This means that no Justice of the Court of Appeal shall climb down from his exalted position to assume duties as one of the Judges of the Federal High Court, for the purpose of trying a charge.
The Court of Appeal, on the other hand, has section 239(2) guiding its composition. It provides that the Court of Appeal shall be duly constituted if it consists of at least three justices of the Court of Appeal”. This means, for example, that no Justice of the Court of Appeal shall exercise the judicial powers donated to a judge of the Federal High Court as envisaged in sections 251 & 252 of the Constitution. He, not being a Judge of the said court as provided for in section 253 of the Constitution. The original and appellate jurisdiction of the Court of Appeal as provided for in sections 239 and 240 of the Constitution, respectively, do not extend to the hearing of criminal matters at the High Court or Federal High Court, in its original jurisdiction.
How do we address such judges?
By the way, how would we address such elevated Judges still trying charges before the lower court? Are we going to begin to address such an elevated Judge as “My lord, Justice of the Court of Appeal, but sitting here as Judge of the High Court/Federal High Court to try this charge”?; Or as “My Lord, Judge of the High Court/Federal High Court since elevated to the Court of Appeal, but donated to the High Court/Federal High Court to continue the trial of this Charge”? How will an elevated judge who tries a matter at the lower court from which he has been elevated sign his judgment? If he signs as “Justice of the Court of Appeal”, the entire Judgment is liable to be set aside for being illegal, unconstitutional and amounting to a complete nullity. If he signs as “Judge of the High Court”, or “Judge of the Federal High Court”, he lies and is liable to the offence of perjury, having taken the judicial Oath of office as Justice of the Court of Appeal” as prescribed in the 7th Schedule to the Constitution. See the cases of Terytex Nig. Ltd V. Npa (1988) Lpelr-20265(Ca), A-G, Ekiti V. C.O.P. Ekiti State (2018) Lpelr-4421(Ca).
I humbly submit that by the judicial Oath of office as contained in the 7th Schedule to the Constitution, which the elevated judge has sworn to, he vows to perform his duties faithfully and in accordance with the provisions of the Constitution. It is our respectful submission that from the 22nd day of June, 2018, when various Judges of the High Court and Federal High Court were sworn in as Justices of the Court of Appeal, in accordance with the judicial oath as prescribed in the 7th Schedule to the 1999 Constitution, they automatically ceased to be Judges of the High Court or Federal High Court. Afortiori, they also ceased to have jurisdiction to continue to try matters which they ad hitherto handled before their elevation.
The judges having been elevated as Justices of the Court of Appeal in line with the provisions of section 238(2) of the Constitution, they cannot, under any guise, continue to sit as judges of the High Court or Federal High Court. They lack competency and jurisdiction to try such matters.
By virtue of section 239 of the Constitution, the Court of Appeal, both in its original and appellate jurisdiction, has powers to hear and determine cases if it is composed of not less than three Justices of the Court of Appeal. This means that no such Justice can exercise the judicial powers of the High Court/Federal High Court, in the same way that no Judge of the High Court/Federal High Court shall exercise judicial powers specifically reserved for the Court of Appeal. To underscore the enhanced and upgraded status of a judicial officer elevated to the Court of Appeal, he is usually referred to as “Justice of the Court of Appeal” (like his counterpart, “Justice of the Supreme Court”); whereas his counterpart at the lower Bench from which he has vacated is still simply referred to as “Judge of the High Court/ Federal High Court”. This is why section 3(2) of the Court of Appeal Act provides, most unambiguously, that:
“The President shall rank equal to a Justice of the Supreme Court and the other Justices of the Court of Appeal rank next to the Justices of the Supreme Court and equal to the Chief Judge of the Federal High Court”.
This shows that Justices of the Court of Appeal are superior to the judges of the High Court/Federal High Court. They can upturn their judgments. The hierarchical structure of Nigerian superior courts identified in section 6 of the Constitution is inviolate and immutable. It is to enable justice travel on its legs from the High Court/Federal High Court, to the Court of Appeal, and then to the Supreme Court. Indeed, the Court of Appeal does not hear and determine criminal cases by calling witnesses’ viva voce, or writing lone Judgments. This is amplified by sections 15, 18, 19 and 26 of the Court of Appeal Act. It is humbly submitted that once a judicial officer has been elevated to a higher court, he immediately and automatically shreds the toga of his original status as a Judge of the lower Bench. He ceases equality with this former peers who were not so elevated. He becomes a new creature. He dorms the garment of 2 Corinthians 5:17.
“The old things have passed away, behold, the new has come into being if then any be in Christ, he is a new creature: old things are passed away, behold all things are become new”. The hallowed chambers and court precincts of his former court become forbidden zones of operation, having subscribed to the oath of office of his new position. Aside the 7th Schedule to the Constitution, section 290 (1) thereof prohibits a person appointed to judicial office from performing the duties of his office until he has first declared his assets and liabilities as prescribed by the Constitution. He must also subsequently take and subscribe to the Oath of allegiance and the judicial Oath. The said judicial oath can be found in the 7th Schedule as follows:
“I, …… do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court of Appeal/Chief Judge/Judge of the Federal High Court/Chief Judge/Judge of the High Court of the Federal Capital Territory, Abuja/Chief Judge of …… State/Judge of the High Court of …… State/Grand Kadi/Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of the Sharia Court of Appeal of …. State/President/Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja/President/Judge of the Customary Court of Appeal of ……… State. I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law, that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria.
So help me God”.
It amounts to a grave contradiction in terms for any judicial officer who has subscribed to the judicial Oath as Justice of the Court of Appeal to literally have a free fall and descend to the lower court to hear uncompleted, but pending cases. Such an act is not only illegal and unlawful, it is unconstitutional, null and void.
In the case of CHUKWUMA V. NWONYE (2009) LPELR 4997 (CA), the intermediate court stamped imprimature as follows:
“Oath is defined as “a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise.” The implication or legal effect therefore of an oath is to subject the person who took an oath to penalties for perjury in the event that the testimony turns out to be false.” Per ARIWOOLA, J.C.A (Pp. 12-13, paras. A-B)”.
Chief Dr.Mike Ozekhome, is a Senior Advocate of Nigeria, and constitutional Lawyer cum activist. He wrote from Abuja.
To be continued
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