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ACJA’s Part 396 (7) and constitutional battle

As Dr. Orji Uzor Kalu resumes legislative duties within the Nigerian Senate, it’s apt to mirror on the Supreme Courtroom judgment that set him free and it’s implications for our Justice system.


In 2007, the Financial and Monetary Crimes Fee (EFCC) arraigned Dr. Orji Uzor Kalu, a former Governor of Abia State and one Ude Jones Udeogu earlier than a Federal Excessive Courtroom in Lagos on costs of sundry allegations of official corruption and abuse of workplace.

The crux of the cost was that whereas holding sway because the helmsman of Abia State, Kalu conspired together with his Finance Commissioner (Jones Udeogu) to defraud the State of billions of naira.

Earlier than trial might begin within the case, Kalu fired a salvo difficult the jurisdiction of the Courtroom to strive him. The trial court docket dismissed his objection.

Kalu travelled by way of the podium of the appellate course of as much as the Supreme Courtroom in a bid to dam his trial to no avail because the Apex Courtroom in 2015 dismissed the appeals filed in opposition to the judgment of the Courtroom of Enchantment which upheld the ruling of the trial court docket.

By the point the coast was clear for his trial in 2015, the system of felony Justice supply in Nigeria had skilled a revolution which launched a brand new order within the administration of felony Justice, this was the enactment of the Administration of Prison Justice Act,2015.

The EFCC re-arraigned Kalu, Udeogu and Slok Nig. Ltd (Kalu’s firm) in 2016 earlier than Hon. Justice Mohammed Idris of the Federal Excessive Courtroom. Idris, J was elevated to the Courtroom of Enchantment and subsequently took oath of workplace as a Justice of the Courtroom of Enchantment (JCA).

Upon the invitation of counsel to Kalu, Idris, JCA was granted a fiat by the President of the Courtroom of Enchantment to conclude the trial.

The Federal Excessive Courtroom (then specifically constituted by Idris JCA for this function) convicted and sentenced the defendants to phrases of imprisonment.

The defendants’ Enchantment to the Courtroom of Enchantment in opposition to their conviction was dismissed. Jones Udeogu’s additional attraction to the Supreme Courtroom was allowed on the idea that Idris, JCA lacked the jurisdiction to additional adjudicate on the matter after subscribing to oath as a JCA as he was not a Choose of the Federal Excessive Courtroom inside the that means of S. 253 of the Structure.Â


The Revolution


The Administration of Prison Justice Act, 2015 (ACJA) was signed into regulation by Dr. Goodluck Jonathan on 14th Could 2015.

The Act is a messianic response to the existential risk posed to the supply of Prison Justice In Nigeria by the out of date Prison Process Act and Prison Process Code, each of which had change into incapable of responding to the social ills of a 21st century society.

The unique model of the Administration of Prison Justice Invoice was drafted by Chinonye Obiagwu, SAN and the invoice was handed into regulation by the Lagos State Home of Meeting in 2007.

An up to date model of the invoice was subsequently midwifed into an Act of the Nationwide Meeting by way of the relentless advocacy and efforts of a Non- Governmental Organisation- Centre for Socio-Authorized Research based by famend educational and regulation reformer, Prof. Yemi Akinseye-George, SAN.

ACJA revolutionalised the supply of felony Justice in Nigeria by searching for, amongst others, to get rid of the  bottlenecks accountable for the perenial delay within the conclusion of felony circumstances.

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The aim of the Act as framed in Part 1 of ACJA bears credence to this truth. it’s useful to breed the ippissima verba of significantly subsection 1 thereof which works thus:

(1) The aim of this Act is to make sure that the system of administration of felony Justice in Nigeria promotes environment friendly administration of felony Justice establishments, speedy dispensation of justice, safety of the society from crime and Safety of the rights and pursuits of the suspect, the   defendant and the sufferer.

An important goal of ACJA as borne out within the above textual content is the speedy dispensation of justice, this essentially implies that circumstances have to be concluded inside an affordable time.

In line with this and different goals, ACJA launched a number of improvements aimed toward bettering the supply of felony Justice.

Chief among the many improvements launched by ACJA are the abolition of keep of proceedings in felony trials- part 306.

That is one cornerstone provision within the Act focused at curbing delay of felony trials by way of resort to interlocutory appeals and keep of proceedings, the constitutionality of this provision was accorded judicial imprimatur by the Supreme Courtroom in Olisa Metuh v. Federal Republic of Nigeria [2017] All FWLR (pt. 901) 722 as per the lead judgment of Clara Bata Ogunbiyi, JSC (Rtd).

Different improvements embrace each day trial and restricted variety of adjournments- part 396(4), (5), (6), award of costs- part 396(6).

Trial in abstentia- part  352(4), plea bargaining- part 270, witness bills s. 251, Non-custodial sentencing- 453 to 467.

Fascinating is part 396(2) which gives that any objection raised by a defendant to a felony cost shall be heard by the decide and Ruling thereon reserved until the stage of judgment.

As formidable as this provision appears to seem, the Supreme Courtroom validated it within the case of Destra Funding Restricted v. Federal Republic of Nigeria [2018] LPELR – 43883 (SC).

Now, part 396(7) of ACJA was ingeniously crafted to take care of a monstrous mischief, which if not tamed, might garbage the complete system of adjudication in felony trials- trial de-novo.

It should even be useful to breed the ippissima verba of part 396(7) which is as follows:

However the provisions of some other regulation on the contrary, a Choose of the Excessive Courtroom who has been elevated to the Courtroom of Enchantment shall have dispensation to proceed to take a seat as a Excessive Courtroom Choose just for the aim of concluding any part-heard felony matter pending earlier than him on the time of his elevation and shall conclude the identical inside an affordable time

The above provision is purposive, having been invented to take care of a mischief, the mischief of circumstances having to undergo the misfortune of a recent begin as soon as the decide dealing with it will get promoted to a Larger Courtroom.

The observe of denovo appears to have gained prominence in Nigeria’s system of adjudication for the reason that case of Ogbuninya v. Okudo [1979] NSCC 77 was determined.

Hon. Justice Philip Nnaemeka-Agu whereas being a Excessive Courtroom Choose delivered judgment in a case he had been presiding over 2 days after his elevation to the Courtroom of Enchantment was gazetted by the Navy Head of State.

The Supreme Courtroom was moved by the legendary Chief Rotimi Williams, SAN to declare the judgment invalid. The Supreme Courtroom agreed with him and since then, the shadow of this choice has by no means ceased to hang-out the judicial system.

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As soon as the decide will get elevated, the case has to begin afresh, even when the elevation comes a day earlier than the supply of judgment.

In 2012, the trial of Erastus Akingbola, former Managing Director of defunct Intercontinental Financial institution Plc, in reference to alleged mismanagement of the financial institution’s depositors funds had proceeded to the stage of judgment, counsel to the events having adopted last addresses.

Few days earlier than the date slated for the supply of judgment, the trial decide, Hon. Justice Abiru obtained elevated to the Courtroom of Enchantment.

With this growth, the matter couldn’t be concluded regardless of the time and public sources that went into the prosecution of identical.

Little question, if their Lordships of the Apex court docket had considered part 396 (7) as an issue fixing system, the choice of the Supreme Courtroom would have been in any other case.

Within the Interpretation of statutes, courts take into accounts the historical past behind the enactment of the regulation and the mischief it was launched to remedy: Engr Charles Ugwu v. Senator Ifeanyi Ararume (2007) LPELR-3329 (SC) at 34 paragraphs B-E per Tobi, JSC.


Part 396(7) and the Structure

The choice of the Supreme Courtroom setting apart the judgment of the Federal Excessive Courtroom which convicted Dr. Orji Uzor Kalu and Ude Jones was predicated on the reasoning that The Hon. Justice M.B. Idris, JCA who handed down the conviction not had jurisdiction to so do having ceased to be a Choose of the Federal Excessive Courtroom when he delivered judgment within the matter. Primarily part 397(6) was held to be in battle with part 253 of the Structure which gives that:

The Federal Excessive Courtroom shall be duly constituted if it consists of no less than one Choose of that Courtroom

The query then is whether or not Hon Justice Mohammed Idris who had been elevated to the Courtroom of Enchantment bench might nonetheless train jurisdiction as a Choose of the Federal Excessive Courtroom inside the contemplation of part 253 of the Structure, it’s humbly submitted that the poser must be answered within the constructive.

It’s submitted with due respect that despite the fact that Idris, JCA was typically not a Choose of the Federal Excessive Courtroom, the authorized implication of the supply is to deem him a Choose of the Federal Excessive Courtroom for the aim of listening to to complete the case which was already half heard.Â

The legislative system employed by the Nationwide Meeting in part 396(7) of ACJA is in keeping with an identical constitutional system employed in part 252(2) of the Structure which gives that:

(2) However subsection (1) of this part, the Nationwide Meeting could by regulation make provisions conferring upon the Federal Excessive Courtroom powers further to these conferred on this part as could seem needed or fascinating for enabling the Courtroom extra successfully to train it’s jurisdiction.

Part 252(2) of the Structure demonstrates that the Nationwide Meeting might, confer further powers on the Courtroom to allow it train it’s jurisdiction. This provision just isn’t merely beauty or a mere surplursage.

The validity of the authorized proven fact that part 396(7) of ACJA compliments part 252(2) just isn’t a matter of conjecture as all of the Nationwide Meeting did was to confer further powers on the Federal Excessive Courtroom in relation to jurisdiction exercised on half heard Prison issues.

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It’s trite that in deciphering the Structure, the Courtroom should take heed to the truth that the Structure is a residing doc which have to be interpreted liberally and never with stultifying narrowness, see Sir Udo Udoma, JSC in Nafiu Rabiu v. State (1980) NSCC 291 at 300 the place His Lordship intoned:

My Lords, it’s my view that the method of this court docket to the development of the Structure needs to be, and so it has been, considered one of liberalism, most likely a variation on the theme of the final Maxim ut res magis valeat quam pareat. I don’t conceive it to be the responsibility of this court docket so to construe any of the provisions of the Structure as to defeat the plain ends the Structure was designed to serve the place one other development equally in accord and in keeping with the phrases and sense of such provisions will serve to implement and defend such ends.

In Lawyer Common, Bendel State v. Lawyer Common of the Federation (1981) 10 SC 1, (2001) FWLR (pt. 65) 448, the Supreme Courtroom per Obaseki, JSC laid down twelve guidelines of constitutional interpretion, in guidelines 5 and 6, His Lordship held that:

  1. The Structure of the Federal Republic of Nigeria is an natural scheme of presidency to be handled as an entity, therefore a specific provision shouldn’t be severed from the remainder of the Structure.
  2. Whereas the language of the Structure doesn’t change, the altering circumstances of a progressive society for which it was designed, can yield new and additional import of it’s that means.

It’s submitted with respect {that a} progressive development of part 252(2) and 253 as commanded by Obaseki, JSC would have saved part 397(6) of ACJA. Had been part 252(2) and 253 learn collectively as Obaseki, JSC envisaged, it might have been clear that part 396(7) of ACJA was a complement of part 252(2) and as such inside constitutional limits.

Moreover, part 10(2) of the Interpretation Act is related right here and it’s textual content is reproduced:

An enactment which confers energy to do any act shall be construed as additionally conferring all such different powers as are fairly essential to allow that act to be completed or are incidental to the doing of the act.

It’s due to this fact submitted that part 396(7) of ACJA is legitimate and Constitutional, being an ingenious legislative system designed to preserve the jurisdiction of the Federal Excessive Courtroom partially heard Prison issues.

Undoubtedly, one other alternative would current itself for the Supreme Courtroom to rethink it’s stance in Udeogu’s case, we hope their Lordships would give a teleological method to part 396 (7) and restore it to the statute books.

The impact of this choice is way reaching on the Nigerian justice supply system, quite a few circumstances which have been prosecuted to cheap conclusion pursuant to fiat granted to Justices of the Courtroom of Enchantment must both begin denovo or be deserted all collectively.

The choice reduces the boldness of the general public in our Justice system because it somewhat elevated the letters of the regulation over and above the crucial to make the regulation work for the event of the society.

It’s hoped that the Supreme Courtroom would rethink it’s stance in no very long time when a chance presents itself and restore part 396 (7) of ACJA to the statute books.

Vincent Adodo, ESQ.

Authorized Practitioner and Socio- Financial Rights Advocate.

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