In the judgement of the Supreme Court of Nigeria delivered on May 8, 2020 in the case of Ude Jones Udeogu v Federal Republic of Nigeria (unreported Appeal No SC. 662C/2019), Section 396(7) of Administration of Criminal Justice Act, 2015 (ACJA) was declared illegal and unconstitutional. The section had empowered a newly appointed Justice of the Court of Appeal to return to the High Court to complete a part-heard criminal case. Consequently, the section has been struck down and expunged from the Act. Even though the Apex Court has spoken with a note of authority and finality, the full implications of the judgement will continue to reverberate in and outside the country for quite some time.
In the lead judgement of the Court, Ejembi Eko JSC stated that: “Ab initio, Section 396(7) of the ACJA 201T was set out to frontally contradict and challenge the letters, substance and spirit of section 290 (1) of the 1999 Constitution.To that extent section 396 (7) of the ACJA is inconsistent with the Constitution, particularly Section 290(1) thereof. Therefore, by operation of Section (3) of the Constitution, Section 396(7) of the ACJA, to the extent of its inconsistency with Section 290(1) of the Constitution, is void”.
With respect, many colleagues who have commended the Supreme Court for the “landmark judgement”, have failed to avert their minds to similar provisions in other statutes which are regularly applied by the Supreme Court and the Court of Appeal. Whereas, Section 396(7) of the ACJA permits a Justice of the Court of Appeal to conclude a part-heard criminal matter in the High Court, Section 16 of the Court of Appeal Act empowers the Justices of the Court to exercise the powers of a trial court, as if the proceedings had been instituted in the Court of Appeal as a Court of first instance. In the same vein, Section 22 of the Supreme Court Act has vested the Justices of the Court of the Apex Court with the powers of a trial court, as if the proceedings had been instituted in the Court as a court of first instance.
Power of the Supreme Court to Sit as a High Court
Pursuant to Section 22 of the Supreme Court Act, the Justices of the Apex Court “… shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance, and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing, or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court”. Similarly, the Court of Appeal has been empowered by Section 16 of the Court of Appeal Act to rehear a case, and exercise all the powers of a Judge of a High Court in determining any appeal.
Thus, by virtue of Section 22 of the Supreme Court Act and Section 16 of the Court of Appeal Act, both appellate courts are permitted by the National Assembly to jettison the judgements of High Courts and rehear the cases, as if they were filed in both courts as courts of first instance. In the process, the Justices of both appellate courts are allowed to grant interim or interlocutory orders of injunction and conduct trials like Judges of the High Court, and deliver their judgements in accordance with the Rules of Procedure of the court of first instance.
Going by the authority of Ude Jones Udeogu v FRN, the powers conferred on both the Supreme Court and the Court of Appeal to rehear cases like courts of first instance are illegal and void, since Sections 233 and 24(1) of the Constitution have limited the powers of both appellate courts to hear and determine appeals from lower courts. But, if the law that empowers the Justices of the Supreme Court to sit like a High Court and rehear a case in its entirety is not unconstitutional, why should it be unconstitutional for a Justice of the Court of Appeal to return as a High Court Judge to conclude a part-heard criminal matter?
As the Constitution has limited the powers of the appellate courts to hear and determine appeals arising from the decisions of lower courts, are we to believe that the National Assembly violated the Constitution when it conferred the powers of a High Court Judge on the Justices of the appellate courts? In other words, can Section 16 of the Court of Appeal Act and Section 22 of the Supreme Court Act be said to be constitutionally valid, in view of the decision of the Supreme court in the case of Ude Jones Udeogu v FRN (supra)?
Fiat given to Justices to Chair Judicial Commissions of Inquiry
Since the fiat given to Justice Mohammed Idris of the Court of Appeal to conclude the much delayed case of Orji Kalu & Ors v FRN was declared illegal and quashed by the Supreme Court, I have searched in vain for any constitutional provision that empowers the heads of the appellate courts to authorise serving Justices of the Court of Appeal and the Supreme Court to preside over Judicial Commissions of Inquiry instituted by State Governors. For instance, the late Niki Tobi JSC, was once given a fiat to preside over the judicial commission of inquiry set up by the Plateau State Government. On two other occasions, the late jurist was given fiats by the Chief Justice of Nigeria to chair Constitutional Review Committees in 1999 and 2005.
The Honourable Justice Stephen Adah of the Court of Appeal recently served as the Chairman of a Commission of Inquiry set up by Governor Simon Bako Lakong of Plateau State. Similarly, the Honourable Justice Mohammed Lawal Garba was appointed the Chairman of the Judicial Commission of Inquiry set up by Governor Nasir El Rufai, which probed the brutal massacre of the Shiites in Zaria in December 2014. From the information at my disposal, the Honourable Justice Biobele Georgewill of the Nigerian Court of Appeal has just submitted the report of a Commission of Inquiry instituted by President Julius Maada Bio of Sierra Leone, which investigated alleged corrupt practices of former public office holders in that country. Before then, his Lordship had also been authorised by the President of the Court, to chair the Commission of Inquiry which probed the allegations of human rights abuses by the armed forces of Nigeria.
It is pertinent to note that, the aforementioned Justices of the Court of Appeal carried out the extra-judicial duties assigned to them by State Governors pursuant to the fiats received from the President of the Court of Appeal. It is on record that at the end of such inquiries, the Justices resumed duties in their courts. It is trite law that, such Judicial Commissions of Inquiry are inferior tribunals. Hence, the recommendations of the judicial tribunals which are accepted by the governments and published in white papers, are usually challenged in the High Courts.
Fiat given to Judges to Sit in Courts Outside Nigeria
I have also not found any constitutional provision that empowers the Chief Justice of Nigeria or the National Judicial Council to post or second serving Justices of the High Court and Justices of the Court of Appeal and even of the Supreme Court, to sit in the courts of other countries. As serving Nigerian Judges, the late Justice Udo Udoma and the late Justice Akinola Aguda served as Chief Justices of Uganda and Botswana respectively. At the end of their tenures, they came back and returned to their courts. In those capacities, both Chief Justices delivered epochal judgements which have stood the test of time. A few years ago, retired Justice Emmanuel Ayoola was a Justice of the Court of Appeal, and Chief Justice of the Gambia. He returned to the Court of Appeal in Nigeria, before his elevation to the Supreme Court. Justice Bode Rhodes-Vivour served in the Supreme Court of The Gambia from 2008-2010, before his elevation to the Supreme Court of Nigeria. Justice Akomaye Agim, was the Chief Justice of the Gambia and Swaziland. At the end of his meritorious service in both countries, he was appointed a Justice of the Court of Appeal in Nigeria. Many other former and serving Justices of the Court of Appeal and the Supreme Court of Nigeria, have been seconded as members of the Apex Court of The Gambia.
Last year, I had cause to address the members of the Bar and Bench in that country. Three of the Judges who attended the programme, were High Court judges in Nigeria. The Judges who are still serving in that country on secondment up till now are, Babatunde Bakre J., Usman Masale J. and Patience Onagite-Kuejubola J. Another Nigerian Judge, the Honourable Justice Nkemdim Ameha Izuako, has been sitting at the United Nations Disputes Tribunal since 2009. She is also the first female Judge, in the High Court of Solomon Island.
All these eminent Judges were posted out of Nigeria, by mere administrative fiats of the Chief Justice of Nigeria. Neither the Constitution nor any law empowers the Chief Justice to give a fiat to any Judge, to serve outside Nigeria. I am wondering whether the decisions of such judges will not be impugned henceforth, on the basis of the celebrated judgement of the Supreme Court in the case of Ude Jones Udeogu v FRN. Since the Constitution has not clothed the Chief Justice of Nigeria with the powers to give fiats to Judges to serve in the jurisdiction of other countries, has the judgement of the Supreme Court not effectively halted the secondment of Nigerian Judges to serve as Judges of superior courts in some commonwealth countries?
Whatever reservations anyone may have about the judgement of the Supreme Court in the case of Ude Jones Udeogwu v FRN, Section 396(7) of the ACJA has been annulled. Whether the law has been correctly interpreted or not, the law is what the Supreme Court says it is at any point in time. No doubt, the desire of the federal legislators to halt the frustration of the prosecution of corruption cases by members of the ruling class, has been defeated. Therefore, concerned legislators are urged to go back to the drawing board, and ensure that a provision similar to Section 396(7) of the ACJA is entrenched in the 1999 Constitution, without any delay. Furthermore, the Constitution should also be amended to confer powers on heads of courts to second Judges to serve in judicial tribunals, and in courts outside the country.
Femi Falana, SAN, Human Rights Lawyer and Activist