Supreme Court and the Administration of Criminal Justice: A Critique of Udeogu Vs. FGN & Ors – Abdulrasheed Ibrahim

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On 8th May 2020, the Supreme Court in the case of Ude Jones Udeogu as Appellant against the Federal Republic of Nigeria, Orji Uzor Kalu and Slok Nigeria Limited as Respondents threw overboard the Section 396 (7) of the Administration of Criminal Justice Act (ACJA) 2015. I must state from the on set here for the record that I am one of the proponents of the said Section that has been rendered null and void by the apex court. I have previously done series of articles to canvass the point that I personally do not see anything unconstitutional about the Section. These articles include: (1) SITTING OF JUDGES: DISAGREEING WITH A LEARNED SENIOR ADVOCATE, (2) ELEVATED JUDGES: WHAT IS THE ARGUMENT ON THE OTHER SIDE? (3) ADMINISTRATION OF CRIMINAL JUSTICE: WINNING THE ARGUMENT. The third one was written after the Court of Appeal upheld the validity and constitutionality of Section 396 (7) of the Administration of Criminal Justice Act (ACJA) 2015 which has now been set aside by the Supreme Court.

The attempt here is not sit on appeal on the judgment delivered by the Supreme Court as I lack the capacity to do that. Since the Supreme Court is the apex court in the land, its decision is final and cannot be appealed against. It remains the law and binding. Despite the finality of the Supreme Court judgment, I do not think there is any law that preclude lawyers from expressing opinions, criticising or even ask questions on a judgment of the court after it has been delivered. Chief Mike Ozekhome, (SAN) is one of the leading opponents of the Section 396 (7) of ACJA. In what seems like a victory song, the learned silk after the Supreme Court’s judgment said in a statement that :

“Some people talk politics. Other dwells on sentiments, fiction and propaganda. Most humbly, I talk law, based on facts. Cold, hard facts .History guides me. Posterity is the judge.Events always vindicate me .This has been the trajectory of my life, Almighty God, I thank you”

Chief Ozekhome is not alone in the jubilation of what has now become one of the celebrated or controversial cases in the history of the Supreme Court, there are many other lawyers particularly the senior ones in the profession that have aligned with the learned silk .Apart from this, there are other lawyers who have expressed the view that the judgment under review has brought a great set back to the administration of criminal justice in this country. I align myself with the later side of the divides.I will resort to various quotes whenever it becomes necessary in the cause of this discourse. For the purpose of clarity, it is necessary here again to quote words for words the Section 396 (7) of ACJA :

“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”

I have argued somewhere else that one does not need to be a student of English Langage to understand the clear meaning of the above provision. On my reading of the Supreme Court’s judgment under review the question I asked myself was that: did our learned jurists of the Supreme Court throw overboard the said provision on the ground that it was a non- existent law? According to the learned Hon Justice Ejimbi Eko that read the leading judgment:

“The parties particularly the Appellant, seem to think that the President, Court of Appeal, on 2nd July, 2018, issued his ‘FIAT/Permission’ to Hon. Justice M.B. Idris, JCA, ‘to conclude the part-heard criminal matter-‘ pursuant to and in furtherance of Section 396 (7) of the Adminstration of Criminal Justice Act, 2015, and not Section 396 (7) of the non-existent Criminal Justice Act.2015”

A critical look at the Fiat/Permission issued to Hon Justice M.B.Idris by the President of the Court of Appeal as quoted in the judgment revealed on the face of the letter, Section 396 (7) of the Adminstration of Criminal Act, 2015 was erroneously referred to as Section 396 (7) of the non-existent Criminal Justice Act.2015. To my own understanding of the law such an error shoud not be fatal to the attainment of substantial justice because it is trite law that courtt should be concerned with the substance rather than the form. For instance, If you write “1999 Constitution” instead of the “1999 Constitution of the Federal Republic of Nigeria” , will it be proper to penalize you for that? If the Section 396 (7) was not nullified on the ground of that error, then in what particular way has the National Assembly missed the point in enacting the Section? The Section in question did not specifically mention that a Fiat/Permission must be obtained from the President of the Court of Appeal, but that has been the convention in our judicial system for long and has never been declared by any court of law as unconstitutional.To buttress this point, I refer to the opinion expressed by Mr. Femi Falana (SAN) in his article titled “Supreme Court also sits as a High Court” which I entirely adopt as mine. Mr. Falana has given us several examples where Fiat/Permissions were issued to many of our jurists sent on special judicial duties within and outside the country. If the Fiat/Permission given to Hon. Justice M.B. Idris was a null and void, can it be said that those previously issued to many Nigerian jurists in the past are or were also null and void? By this case under review , has Supreme Court not created a ground for some of our colleagues who deprive pleasure in filing frivolus suits, to now start challenging any kind of Fiats/Permissions in our court of law ?

The main contention in the case under review was that since Hon. Justice M.B. Idris had been elevated to the Court of Appeal , he lacked the jurisdiction to continue with the criminal matter he started as a judge of the Federal High Court but could not conclude before he was elevated, despite the clear wording of the Section 396 (7) of the ACJA.The Supreme Court upheld the argument of Appellant’s counsel against the Secton 396 (7) of ACJA replying on some Sections of the 1999 Constitution as amended including Section 250 (2) that talks about the appointment of a judge of the Federal High Court; Section 253 that states that a Federal High Court shall be duly constituted by a judge of that court as well as Section 290 (1) that talks about when a person appointed as a judge of the Federal High Court shall begin to perform the function of that office.The Supreme Court per Eko JSC also states further that :

“The AJCA (as written in the judgment instead of ACJA) 2015 in its 495 Sections , does not define ‘law’, or ‘any other law’, or the ‘any other law to the contrary’ that its provision in Section 396 (7) purports to override ,it appears ‘any other law to the contrary’ includes any written law or statute ,including the 1999 Constitution , as amended that contradicts Section 396 (7) of ACJA! The National Assembly, in view of the supremacy provision of the Constitution, in Section 1 thereof, could not have intended that audacious insubordination to the Constitution, or state of absurd fool hardiness of legislating into Section 396 (7) of the ACJA, 2015: that the provision would also override any provision of the Constitution to the contrary of Section 396 (7) ACJA.”

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With utmost respect to our apex court ,the bracketed words in the first line above is mine to stress the fact that nobody is immuned from making error just as we have seen in the fiat/permission given to Hon. Justice M.B. Idris by the President of the Court of Appeal. While still maintaining the position that I have personally not seen how the said Section 396 (ACJA) 2015 goes in conflict or contrary Section 1 (3); Section 250 (2); Section 253 and Section 290 (1) of the Constitution of the Federal Republic of Nigeria as amended except we want to accept the fact that we are not interested in the developing our law in this country or that we are comfortable with the way cases go on endlessly in our courts. Is there anything that ought to have been done by the National Assembly that has been left undone? If that is so, then our National Assembly is not living up to its responsibility. Is there anything irrational with the law allowing an elevated judge to go back to the court from where he was elevated for the purpose of only concluding within reasonable time the matter he could not complete while he was there? Is the present position of law of reassigning a matter that has lasted for years before an elevated judge to another judge to start the denovo will continue to be a good law? Which of the two options will honestly advance the speedy dispensation of justice? Will the present case under review advance the quick dispensation of justice even when it was on record that one of the defendants had asserted that re-starting the criminal trial de vono would work untold hardship to all the defendants including the prosecution? I have read some arguments that parties cannot confer jurisdiction by consent. Yes, I accept that settled principle of law but that is not the issue here rather my contention is: how do we get rid of the endless cases in our judicial system and move along with the modern and civilized world?

The Supreme Court accepted the Appellant’s arguments placing further reliance on the previous decision of the apex court in the cases of OGBUNYINYA & ORS Vs. OKUDO & ORS (1979) NSCC 77 and OUR LINE LTD Vs. SSC NIGERIA LTD & ORS (2009) 17 NWLR (Pt. 1170) 383 wherein the Supreme Court set aside the judgments of Hon. Justice Nnemeka –Agu and Hon. Justice Anthony Iguh respectively delivered in the High Court of Anambra State after their elevation to the appellate court. I am of the view that the two learned jurists did not exercise their power or discretions based on any enabling law as done Hon. Justice M. B. Idris, rather they used their progressive minds and initiative to do what they did, although their actions were later declared null and void by the Supreme Court and the cases remitted back to the trial courts for re-trial. The implication of that was that regardless of the numbers of years the parties must have spent in litigating the cases, they were sent back to the trial court to begin the cases afresh. Now ,let us ask ourselves what would have been the situation if the Supreme Court had held otherwise and said that regardless of the elevation of the two jurists their judgments are proper and on merit, would that debar any of the parties not satisfied with the judgments on the merit from file appeals against the judgments on merit? Of course no, an aggrieved party can appeal and at the Court of Appeal, the elevated judges that delivered the judgments merit will not sit on the panel that will hear the appeal. But in these two cases under reference, the Supreme Court by setting aside those judgments and remitted them back for re-trial gave the unsuccessful party the opportunity to have a second bite of the cherry for another number of years. To what extent, will this kind of court order promote speedy dispensation of justice?

The Supreme Court as an institution has on several occasions lamented about the unnecessary delay in the dispensation of justice and blaming lawyers for filing frivolous application or preliminary objections that are often argued up to the apex court. For instance in the case of ARIORI Vs. ELEMO (1983) 1 SC at pages 74-75, our great late Jurist, Eso, JSC lamented that a case litigated for 20 years up to the apex court had to be unfortunately sent back to the High Court for re-trial. In OSHOBOJA Vs. AMIDA (2009) 18 NWLR (Pt. 1172) at Page. 207 Paras A-B, Ogbuagu, JSC lambasted the Appellants that had gluttony for unwarranted and prolonged litigation by litigating the case for 54 years which the learned jurist said also was very unfortunate. In the case of SOCIETE BIC S.A. & 2 Ors Vs. CHARZIN INDUSTRIES LTD. (2014) 4 CLRN Pg. 26 Lines 29-40 , Rhode Vivour , JSC showed his displeasure on a case filed in 1995 and took 19 years to resolve only the simple issue of jurisdiction courtesy of an interlocutory appeal. The matter was remitted back to the High Court for trial to commence in the main suit .This was similar to what happened in the case of Amadi Vs. NNPC (2000) 10 NWLR (Pt. 675) 76 wherein Justice Uwais , a former CJN observed that the matter that commenced before the trial court in 2007 took 13 years for the issue of jurisdiction courtesy of an interlocutory appeal argued up to the Supreme Court to be determined. The matter was sent back to the trial court to be determined on merit.The learned jurist in the matter advised counsel to help reducing delay by desisting from filing unnecessary preliminary objections. He was also of the view that such interlocutory application should have been taken along with the substantive claim so that an aggrieved party could at end combined both appeals on jurisdiction and the judgment on merit together.

With this latest Supreme Court’s case under review, is the apex court taking us to the Promised Land as far as speedy dispensation of justice in our judicial system is concerned? The Section 396 (7) of ACJA 2015 that should have been revolutionary in this regard has been castrated and given a fatal blow by the same apex court that has over the years lamented the delay in the dispensation of justice. In the words of Augie, JSC in her contribution to the judgment under review:

“…I stand squarely and solidly with the position taken by this court in Ogbunyayi Vs Okudo (supra) and Our Line Ltd Vs. SCC (Nig) Ltd. (supra) .Section 396 (7) of AJCA has no place in our statute books, and the law remains that a judge, who has been elevated to the Court of Appeal, cannot go back to the High Court, put on a second cap, and continue sitting as a High Court Judge.”

One of the remarks of Lord Denning that I always admire was where he said “No matter what the law says I will do justice”. As a student of law and jurisprudence, I do not see anything wrong allowing an elevated judge to conclude the part heard case in which both parties have concluded given their evidence. In that situation it will be proper allowing the trial judge to deliver the judgment even if he has been elevated to the appellate court because by the present state of law, reassigning such matter to another judge to start afresh may not serve the interest of speedy dispensation of justice.I strongly believe that Supreme Court missed the opportunity in the case under review to develop our law in this area of law. The late Chief Richard Akinjide (SAN) once lamented in the Guardian Newspaper of 11th November 2008 that “Our laws are archaic”. Hon. Justice Salihu Modibbo Alfa Belgore, a former CJN in a paper titled: “The Courts’ Procedures and Justice, Corruption and Politics” delivered at the annual conference of the Nigerian Bar Association (NBA), Ijebu Ode Branch and published in the Guardian Newspaper of 21st August 2007, the retired learned jurist then said :

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“Our Corpus Juris , applicable mainly in superior courts of records, is based almost entirely on English Common Law from 1902 through to 1914 and finally to our independence and up to the present , we have done nothing but mimickery of the English Common Law. The English Law have changed, adopted and reformed so much in the last 50 years , but we tenaciously cling to the same system. I am not here condemning the Common Law, far from it. What I propose in this short discourse is that as the English change due to circumstances they face, we have faced more circumstances that ought to compel our rethink…From the great Judicature Acts of the last quarter of 19th century through to law reforms of 1925, 1926 and up to the entry of United Kingdom to European Union, the English law and procedure have undergone one metamorphosis after another to the extent that that they are greatly at variance with our system.”

But what do we still have here in our judicial system? Our Supreme Court is kicked against a novel and revolutionary provision such as the Section 396 (7) of ACJA 2015. Can Chief Mike Ozekhome (SAN)’s school of thought call the above Belogore and Akinjide’s observations, sentiments, fiction and propaganda? In her contribution to the judgment under review, Kekere-Ekun, JSC noted that:

“It is not in dispute that M.B. Idris , JCA, upon the fiat of the Acting PCA, sat at the Federal High Court , Lagos and concluded hearing in suit no. FHC/ABJ/CR/2007 , which was part heard before him, and delivered judgment therein on 31/7/2018, after he had been elevated to the Court of Appeal and sworn in as a Justice of that court on 22nd June , 2018. In what capacity did His Lordship conclude proceedings and deliver judgement? Was he exercising jurisdiction as a judge of Federal High Court or as a Justice of the Court of Appeal? Did the Hon. PCA have the the requisite authority to direct a Justice of Court of Appeal to sit at the Federal High Court to conclude a part heard matter? These are all questions that agitate the mind in this case.”

With the greatest respect,these are very good questions that I will attempt to answer here, but before doing that let us the add the questions posed by Chief Adegboyegan Awomolo (SAN) when the learned silk asked in his article titled: “Is Section 396 (7) of ACJA Constitutional?” :

“…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….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?”

I have argued severally in the past that I do not agree that a Justice of the Court of Appeal who descends to the lower court to perform any special judicial duty has degraded or belittled himself/herself. On question as to how a judge like Hon. Justice M. B. Idris will sign the judgement he goes to the the lower court i.e Federal High Court to conclude, if he signs as a judge of the Federal High Court, he cannot be said to have lied in my opinion because whenever he is sitting to conclude the matter he left behind, he is working in that court on special duty and in the capacity of a judge of that court pursuant to Section 396 (7) of ACJA 2015 and the Fiat/ Permission given to him by the PCJ which he must even indicate in that judgment . The argument that PCA lacked the power to give fiat to do that in view of the power of the Chief Judge of Federal High Court to control the affairs of the court was of no moment as we may ask that: who assigned the case to Hon. Justice M.B. Idris when he was at the Federal High Court. The PCA’s Fiat/Permission given to him was just only to go and conclude his part heard matter within a reasonable time and not to take up new matter in the Federal High Court. I have been asking those lawyers citing some sections of the constitution which they say Section 396 (7) of ACJA goes aginst that: Can Hon. Justice M.B. Idris alone exercise the power of the Court of Appeal without sitting with other two justice of the court to form a courm?

On the holden in the judgment under review that: “the law remains that a judge, who has been elevated to the Court of Appeal, cannot go back to the High Court, put on a second cap, and continue sitting as a High Court Judge”. Let us consider this hard fact in the history of Legal Profession in Nigeria. In 1983, Hon. Justice Abdullahi Umar was elevated to the Court of Appeal from the then Kaduna State High Court and was a Justice of that court until 1987 when Katsina State was created. He left the Court of Appeal to serve as the first Chief Judge of the new State. He later returned to the Court of Appeal to retain his seniority and eventually retired as the 4th President of the Court of Appeal .For Hon. Justice Umar to have left Court of Appeal briefly and later returned, could it be said that the learned retired jurist once wear a second cap or degraded himself? Can Chief Mike Ozekhome (SAN)’s school of thought debunk this hard historical fact? For those who have read Mr. Falana’s position of this issue, can those judges who at one time or the other given fiats/permissions to go and perform some special judicial duties within and outside the country be said to have worn second caps? Can anyone blame the likes of Professor Itsey Sagay (SAN) for expressing his view below on the new Supreme Court’s decision under review?

“I think this judgment is a great disservice to this country.It’s a great setback because it drags us back into iniquity of cases that have no end without any good reason at all…We found, in many cases, judges who had spent five to seven years on a case, they were promoted and then could not continue with it .A new judge would start and the case would begin all over again. It was killing our judicial system. That’s why the National Assembly passed that law under the ACJA…I’ m not aware that the constitution specifically outlaws it…”

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In the present circumstance, who do we blame? Do we blame, the legislature or the executive or the judiciary or the legal profession or even the entire Nigerian people? Can we say Mr. Abiodun Owonikoko (SAN) in his opinion titled, “N7.1 bn: Supreme Court Lawfully Quashed Kalu’s Conviction” actually answer these questions? :

“We always knew that the judgment of the trial court was technically flawed (not on the merit though) hence the order for trial de novo (afresh) …It easy to predict that it might not survive on appeal based on the snag of the judge coming back from the Court of Appeal to deliver judgment on a criminal trial that he did not conclude before his elevation….Administration of Criminal Justice (ACJA) gave a judicial officer that leeway, but that ,it requires a constitutional amendment to valiadate it.Unfortunately we did not have such amendment at the material time and sadly, till date…The lynch mob mentality of conviction by whatever means misled EFCC to continue with the trial after Idris JCA had been appointed a Justice of the Court of Appeal…..”

Honestly, I cannot buy into the above view expressed by the learned silk. It was the Lagos State that started what has come to be known today as the Administration of Criminal Justice Law to hasten the speedy dispensation of justice in criminal matter, it was borrowed at the Federal level for adoption with some changes here and there. Today many states in the Federation are adopting the law as theirs. I am yet to get a satisfactory answer to the question that has been bothering my mind that: what are the specific things the National Assembly supposes to do on that law but has refused to do? Even the Supreme Court in its judgment under review did not answer the question as the institution only attacked the Section 396 (7) of ACJA. I am yet to see anything wrong with the said section in issue. When the Court of Appeal delivered its judgment on the case under review, I wrote the article titled: ADMINISTRATION OF CRIMINAL JUSTICE WINNING THE ARGUMENT, with the full confidence that the Court of Appeal had done the right thing by upholding the validity and constitutionality of the Section 396 (7) of ACJA. I had the strong belief then that I saw no reason why the Supreme Court would up turn the Judgment. But when the apex court’s decision came unanimously setting aside the Court of Appeal’s decision, it was very big surprise for me particularly when none of the Justices on the panel dissented.I am of the view that although a dissenting judgment is not a decision of an appellate court, but I would have written a dissenting judgment, if I were a Justice of the Supreme Court and sat on that panel.

Before ending this critique, there is one point I want to raise here which I do not care if some people call it propagadan. Those that frontal attack the Section 396 (7) of ACJA in the court of law did it for the purpose of shielding or delaying or frustrating the trial of their clients being called upon to render their account and stewardship while holding the public office in trust. That, I must confess is one of the attributes of smart lawyers defending their clients. But in the course of doing that, must the clear wordings of a law be twisted to achieve that? They need to be congratulated for their success in doing that. A case that had lasted for 12 years, must now go back for re-trial before another judge ,even despite the fact that one of the defendants had asserted that it would work untold hardship on them. Who knows if the case will come to an end in another 12 years? Only time will answer this question! With this development, are we developing our judicial system or making mimickery of the English Common Law that we have borrowed as rightly observed above by a former Chief Justice of Nigeria. One of the things I like in the Supreme Court’s decision under review is its interpretation of the word DISPENSATION as used in the the Section 396 (7) of ACJA : According to the Learned Jurist, Hon. Justice Eko that read the leading judgment:

“‘Dispensation’, according to both Oxford Advanced Learner’s Dictionary and Black’s Law 9th Ed., is a permission to do something that is not usually done , allowed, legal or lawful.Therefore, the question is ; on what constitutional authority does either the National Assembly or the President of the Court of Appeal stand to grant this ‘dispensation’ to the Honourable Justice M.B. Idris ,JCA to continue to act as a Judge of the Federal High Court after he had ceased to be a judge of the Federal High Court upon his elevation to the Court of Appeal?”

With utmost due respect to our Supreme Court, I believe from what we have discussed so far above, we have been able to answer the question posed the learned jurist above.When I was reading the judgment under review and got to portion of the interpretation i.e “a permission to do something that is not usually done…”, honestly what actually came to my mind was the view of that great Eminent English jurist, Lord Denning in the case of Parker Vs. Parker (1953) 2 ALL E.R. 121 where he said :

“What is the argument on the other side? Only this, that no case has been found in which it has been done before .That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere .The law will stand still while the rest of the world goes on and that will be bad for both.”

Now with our latest Supreme Court’s decision under review, are we getting anywhere? With the the case involving Mr. Orji Uzor Kalu litigated upon for 12 years but on the order of the apex court now going back to the trial court to start afresh. As far as our judicial system is concerned, has the rest of the world not gone and left us behind? To borrow from the words of Chief Mike Ozekhome (SAN), how will Posterity judge us and our judicial system? To me, this Supreme Court’s decision under review does not call for a celebration or jubiliation or even victory song or prayer, rather it calls for a deep reflection on the part of every rational member of the legal profession whether at the Bar or on the Bench. According to Hon. Justice Belgore about 13 years ago: “we have faced more circumstances that ought to compel our rethink”. Is our rethink not long over due? What is your view and where do you stand?

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