Validity or Otherwise of Elevated Judge Continuing Case at Lower Court (I) – Mike Ozekhome

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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 June 22, 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 May 13, 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 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:

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1) The Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.

2) 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.

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.”

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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 June 22, 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.

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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.

To be continued

Written by Mike Ozekhome SAN

Culled: Daily Sun

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