By Abdulrasheed Ibrahim
Before proceeding with this issue at hand, I want to first correct an error I made in the last week write-up titled: STILL ON DEFENCE OF THE HOLDERS OF LLB DEGREES IN SHARIA AND COMMON LAW wherein I referred to Dr. Saheed Ahmad Rufai as a lecturer at Usmanu Dan Fodiyo University, Sokoto. My attention was drawn to the fact that he is not a lecturer at the said institution but that he currently works at a Development Bank overseas. I derived the initial information from a source I had no course to doubt.However the error is regretted.
Now to the issue at hand, sometime last year Chief Mike Ozekhome, SAN did a series of articles on the “Validity or Otherwise of Elevated Judge Continuing case at Lower Court”. The summary of the series by the learned Senior Advocate was that Section 396 (7) of the Administration of Criminal Justice Act (ACJA) was a frontal attack on the 1999 Constitution of the Federal Republic of Nigeria,particularly Sections 238 (2), 240, 250 (2) and 253 of the said Constitution . In the words of Chief Ozekhome opening the argument:
“The question that beg 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 ACJA. Our humble answer is in the negative.”
The learned silk put up some arguments that seemed to be very beautiful which I personally did not buy into but some of our colleagues fell for Chief’s argument and joined his school of thought. I remember then that a colleague even said that he had submitted a case to the Court of Appeal on that same issue. On this platform, I did two series on 2nd December and 9th December 2018 respectively titled: SITTING OF JUDGES: DISAGREEING WITH A LEARNED SENIOR ADVOCATE and ELEVATED JUDGES: WHAT IS THE ARGUMENT ON THE OTHER SIDE? to join issues with Chief Ozekhome’s school of thought . For the purpose of clarity, there is the need to again quote the said section 396 (7) of ACJA in controversy:
“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 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”
While I will not like to repeat all my previous arguments here except where it becomes extremely necessary , what I want to show here is how far our own school of thought have won the argument.When I said our own school of thought ,am talking about all those who share the view that the said section 396 (7) of ACJA is not in any way a frontal attack of the Constitution of the Federal Republic of Nigeria but rather that the said section is innovative and revolutionary in the dispensation of criminal justice in Nigeria. Before I go into how our position have justified by the Court of Appeal recently, it is necessary to quote here a colleague from the other side of the divides who said in the course of the argument after referring to the Section 253 of the Constitution that :
“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”
It may not be necessary here repeating my response to the above submission as I have done that in my rebuttal titled: ELEVATED JUDGES: WHAT IS THE ARGUMENT ON THE OTHER SIDE? Since the issue was eventually submitted to the Court of Appeal for the proper interpretation of that section 396 (7) of ACJA, the question now is: what is the position of the Court of Appeal? Before bringing the intervention of the Court of Appeal, I want to say that like what appeared to be the CLOSING CHAPTER on this issue then, apology to Lord Denning, I at a point submitted that:
“…What prompted this present reaction is that upon reading the part three of the learned silk’s argument, I observed that this issue is being blown out of proportion and over flogged. Chief Ozekhome’s school of thought is still trying to convince us that the said provision is unconstitutional citing several case authorities that am of the view are grossly misconceived and irrelevant to the issue at stake. This is a very good instance where one will even appreciate the intervention of the Supreme Court when the occasion arises so that the issue can be put to rest once and for all…”
Examining Section 396 (7) of the Administration of Criminal Justice Act (ACJA) in the case of UDEH JONES UDEOGU Vs. FGN & 2 ORS., Appeal Case No. CA/L/1064C/2018 and delivered on 29th April 2019, the Court of Appeal per M.L. GARBA, JCA has this to say:
“The Ruling on the no case submission by the Appellant and the other Defendants (2nd and 3rd Respondents) bears the titled “judge” after the name of the Hon. Justice M.B Idris ,to indicate and leave no doubt that it was delivered by the learned JCA, sitting as a judge of the lower court.Novel and absurd as it may be, the provisions of section 396 (7) of the ACJA , apparently vests, the requisite power and authority on the Hon. Justice M.B. Idris ,to sit and exercise the jurisdiction of the lower court for the purpose of concluding the part heard criminal matters he had commenced but did not conclude as a judge of the lower court before his elevation to the Court of Appeal. The cases of Ogbunniya V. Okudo and our Linc Limited V. SCC Nigeria (Supra), I agree with the Learned SAN for the first Respondent ,were decided on the state of law at the material time and in the absence of any statutory provisions such as Section 396 ( 7) of ACJA, allowing ,permitting or authorizing the affected Hon. Justices of the Court of Appeal and Supreme court respectively, to go back to the courts from which they were elevated ,to conclude the matters they commenced ,but could not conclude before their elevations. ”
The Court of Appeal further held that :
“The principle laid down and stated in the two (2) cases that a judge elevated or appointed to a higher court would cease to be a judge of the court from which he was elevated and would therefore lack the requisite jurisdiction to sit in that court in the absence of relevant and specific statutory provisions allowing or authorizing him to do so,is still extant and applicable in appropriate cases.It is however not applicable in the Appellant case since the provisions of Section 396 (7) of the ACJA specifically permit and authorize the Hon. Justice M.B.Idris ,JCA to sit in the lower court as a Judge of that court for purpose of concluding part heard criminal matters commenced but not concluded by him before his elevation.In the result, I am persuaded by the arguments of learned silk for the 1st Respondent on the issue which is resolved against the Appellant.”
The above is how the position of our school of thought has been justified. By this have we not won the argument? I had once said that ,it is those who want their criminal matters to be frustrated or delay unnecessarily that would continue to see the said section as a frontal attack on the Constitution. It is an accused or a Defendant that has skeleton in his cupboard and has no defence to the charge against him that will revolt against this innovative provision aims at checkmating the delay in administration of criminal” justice. Mr. Femi Falana, SAN recently made some remarks that I personally consider very valid. According to the learned silk:
“Today in England, if you file a motion that is meant to delay the case, you are disciplined by the law society.But here, these are the lawyers we are celebrating…The case of James Ibori, without trial, he was discharged and acquitted.The judge carelessly forgot that the $15 million seized from him when he wanted to bribe (former EFCC Chairman Nuhu Ribadu) was still there as an exhibit. He did not make any order on the money .When the same man got to England, he pleaded guilty .You know why he pleaded guilty? When the lawyers saw his defence, they told him it was a sham and they could not go on with the case. He asked if they could not file an appeal, and they told him, ‘we don’t do that here’. They told him that if they went on and he got convicted, he would get the highest punishment .But that is not the real problem.They told him they were afraid they would also lose their license to practice law, because they would be charged for wasting the resources of her majesty’s court.”
In this country, we equally need to move with the world in the ways things are properly being done in the developed countries. If we want to be taken very serious by other countries in terms of justice delivery system, we must do away with the attitudes akin to playing heed and seek game in our court of law.I do not think it will be in our own interest to encourage things that are irrational.Our laws must be amended where necessary to sanction those who are taking our judicial system for a ride. This will go a long way to deter those who derive pleasure from such acts.
KWARA GETS NEW JUDGES AND KADIS
On Friday, 10th May 2019, the Governor of Kwara State, Dr. Abdulfatai Ahmed swore in two new High Court Judges and two new Kadis for the state. The new Judges of the Kwara State High Court are Hon. Justice Olalekan Moses Adegbite and Hon. Justice Aliyu Hammed Gegele while the new Kadis of the Kwara State Shariah Court of Appeal are Hon. Kadi Sharafu Hannafi and Hon. Kadi Abdurraheem Ahmad Sayi .The swearing ceremony followed the approval of their appointments by the National Judicial Council (NJC).While congratulating the newly swore in Hon. Judges/Kadis, we pray the Almighty Allah to give them knowledge,wisdom and the courage to dispense justice without fear or favour .
ON STATEMENT OF AN ACCUSED PERSON
In passing, and for future guidance to Police Officers entrusted with the investigation of crime, it is most undesirable, as happened during the investigation of crime the subject matter of the case on appeal, to take the statement of the an accused or suspect in the presence of the other suspects or accused persons. One reason which comes readily to mind is the possibility of one accused or suspect making a statement in the fear of another either involving himself or exculpating the other. Statement of the accused persons or suspects should as far as is possible be taken out of the hearing and /or presence of each other.
Per TAYLOR, (FJ) JSC in Mika Vs. Queen (1963) 1 All NLR 220, Pgs. 224
THE SETTLED PRINCIPLE OF LAW
On bail pending trial as constitutional right
It is now settled that bail pending trial is a constitutional right so, the burden is on the prosecution, to prove that the facts relied upon by the applicant, do not warrant the granting of the applicant to bail. This is because; there is a constitutional presumption in favour of the liberty and innocence of the individual.
See Lt. Col Enebeli Vs. The Chief of Naval Staff & 2 Ors (2000) 9 NWLR (Pt.671) 119-124-125 C.A; SHAGARI Vs. COMMISSIONER OF POLICE (2005) ALL FWLR (Pt. 262) Pg. 473 Para H
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12th May 2019