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Ude Jones Udeogu: Why blame Supreme Court docket?

On this piece, Olukayode Enitan (SAN) argues that the legislature and never the Supreme Court docket ought to be blamed for apex court docket’s judgment in Ude Jones Udeogu v Federal Republic of Nigeria and a pair of Ors


I have fastidiously learn the good article of my very eminent and discovered brother, Kemi Pinheiro, SAN captioned: “Ude Jones Udeogu: What Supreme Court docket didn’t take into account” printed  in The Nation Newspapers of Tuesday June 2, 2020, and having learn  the choice of the Supreme Court docket in Ude Jones Udeogu v Federal Republic of Nigeria and a pair of Ors. (SC. 264/2012) [2016] NGSC 30 which he sought to critique, the query that involves my thoughts is: Why blame the Supreme Court docket and never the Legislature?

The mentioned article is an excellent evaluation of info and the a number of canons of interpretation based mostly on   his understanding of the technique most likely adopted by the Defendant within the mentioned case.

Nonetheless, I’m of the standard opinion that my pricey discovered brother missed the step when he opined that the choice of the Supreme Court docket is majorly predicated on the necessity to observe judicial precedent.

He was of the agency view that the Supreme Court docket solely took the trail it did on the premise of Judicial precedents as was determined within the cited instances of Ogbunniya v Okudo & Ors (1979) NSCC 77 and Our Line Ltd v SCC Nig. Ltd. (2009) 17 NWLR (pt. 1170) 383.

While he’s right that the Supreme Court docket was on agency footing had the choice been based mostly on the place of the Supreme Court docket within the mentioned issues alone, I nevertheless disagree that there was some other conclusion out there to the Supreme Court docket aside from that to which the Court docket arrived.

There is no such thing as a achieve saying the truth that Part 396(7) of the Administration of Legal Justice Act (ACJA) 2015 is patently opposite to 290(1) of Structure of the Federal Republic of Nigeria (CFRN), 1999 (as amended)  and this most likely explains why not one of the commentators together with my discovered good friend Pinheiro SAN have come out to state that it’s not however have determined to hunt refuge within the suggestion that one other approach ought to have been discovered to make it compliant with the letters of the structure quite than strike it down.

Lots has been mentioned concerning the mischief meant to be cured by Part 396(7) ACJA, 2015 which Pinheiro (SAN) additional highlighted and these are with the view of guaranteeing that corruption instances are expeditiously heard and determined with minimal delay notably that occasioned by elevation of Judges.

Lots has additionally been mentioned as to the necessity for the Supreme Court docket to have adopted a purposive strategy to the interpretation of the Part 290(1) CFRN as mended .

I’m of the standard view that the purposive strategy of interpretation as utilized within the cited instances of A.G Ondo State v A.G Federation & Ors. (2002) 9 NWLR (Pt.772) 222, Re: Anti-Inflation Act (1976) 2 S.C.R 373 and Pepper v Hart [1992] Three WLR 1032 couldn’t have been correctly utilized within the instantaneous case because the info, circumstances in addition to the impact that the topic issues within the particular person disputes have on the constitutional and statutory provisions that have been being interpreted have been fairly completely different.

First, in A.G Ondo State v A.G Federation & Ors. (Supra), the dispute was as to the propriety of the Nationwide Meeting making legal guidelines that may have an effect on public officers within the service of State Governments, and within the mentioned case, while the Supreme Court docket held that the entire of the ICPC Act which was below competition was not wholly unconstitutional, it nonetheless discovered some sections of the Act unconstitutional and struck them out for non-compliance.

Within the mentioned case, it was the totality of the Act that was in problem as to its unconstitutionality and never a portion or part of the mentioned Act.

In the meantime, within the instantaneous case below dialogue, it was the constitutionality of a provision or a piece of the Act, to wit, Part 396(7) of ACJA that was in problem and rightly held to be unconstitutional.

Secondly, in Re: Anti-Inflation Act (1976) 2 S.C.R 373, the Supreme Court docket of the Dominion of Canada had handled the problem of whether or not the Anti-Inflation Act was not extremely vires in entire or partially to the extent that it legislated on an space that was inside the purview of the Provinces.

The Court docket held; contemplating its non permanent nature, the state of the Canadian economic system, the aim for which the Act was made and the truth that the Act was for peace, order and good authorities and never enacted to invade the legislative competence of the provinces, that the Act was not extremely vires the Parliament of Canada.

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This case can be related as persuasive authority for purposive interpretation have been the laws in competition in Udeogu’s case to be the ICPC or EFCC Acts. Sadly, it’s unhelpful as regards to the present discourse.

Third and final, is the Pepper v Hart [1992] Three WLR 1032 case, during which Lord Brown Wilkinson on reference to Hansard, with a view to adopting a purposive interpretation of a laws was of the opinion:

“My Lords, I’ve come to the conclusion that, as a matter of legislation, there are sound causes for making a restricted modification to the prevailing rule (topic to strict safeguards) except there are constitutional or sensible causes which outweigh them.

I’m of the view that my discovered good friend’s primary summation is {that a} purposive interpretation of Part 396(7) ACJA, 2015 would have required that the Supreme Court docket inquire as to the explanation why the Legislature got here up with the supply of Part 396(7) of ACJA  and additional that the Court docket  didn’t take into account the essence of the appliance of the supply in a purposive method and thus the Supreme Court docket ought to have glossed over the provisions of the CFRN, 1999, and the truth that as on the time that Hon. Justice Idris was sitting over the matter he was now not a Decide of the Federal Excessive Court docket (FHC) however a Justice of the Court docket of Enchantment.

I urge to disagree with that summation as there was no approach the Supreme Court docket may have turned a blind eye to the specific provisions and letters of the CFRN, 1999 with a view of attaining the aim of an Act of the Nationwide Meeting.

The instructed strategy additionally didn’t take cognizance of the opinion of Lord Wilkinson within the Pepper’s case cited by my discovered good friend to the impact that the purposive strategy shouldn’t be adopted the place there are Constitutional and sensible causes that outweigh such an strategy, that are clearly legion within the instantaneous enchantment earlier than the Supreme Court docket.

It has been acknowledged that the Supreme Court docket may have anchored its ‘blindness’ to the infraction by contemplating the truth that it was the first Defendant himself that had utilized for the Court docket to invoke  Part 396(7) ACJA, 2015.

In different phrases, my discovered good friend is arguing that the Supreme Court docket ought to have agreed that the first Defendant, with out regards to the supply of the CFRN, 1999, can confer jurisdiction on a Justice of the Court docket of Enchantment to take a seat as a Excessive Court docket Decide, as he (the applicant) shouldn’t be allowed to approbate and reprobate, this clearly would stand the legislation on its head.

While it’s true that there is no such thing as a specific provision of the CFRN, 1999 that forbids the legislature from making a legislation to permit a choose who has been elevated and brought the oath of workplace of a Justice of the Court docket of Enchantment, to conclude prison instances he’s conducting and that what isn’t prohibited is impliedly permitted, it’s nevertheless, outlandish and I completely disagree that the Supreme Court docket can thereby be invited to disregard that which the Structure clearly offers for, that’s the composition of every of the Courts comprising the Judiciary of the Federation.

The Supreme Court docket with due respect to my discovered and eminent Brother seized the golden alternative offered by the moment case to settle as soon as and for all, the constitutionality of Part 396(7) ACJA, 2015 by declaring it unconstitutional and putting it down.

The Courts are required to resort to the cardinal guidelines of interpretation1 of all legal guidelines positioned aspect by aspect with the Structure in order to determine the intention of the legislation makers from the phrases utilized by them, and to make sure that the thing and true intent of the Structure and statutes are preserved.

The purposive strategy of interpretation proposed by my discovered brother isn’t at all times the strategy to take as earlier decided by the Supreme Court docket in a number of cases2 and the rule of interpretation at all times adopted within the interpretation of the Structure has at all times been the literal strategy.

A Structure should at all times be thought-about in such a approach that it protects what it units out to guard or guides what it got down to information.

By its very nature and by necessity a Structure doc should be interpreted broadly so as to not defeat the clear intention of its framers.3

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It’s trite that the final rule of interpretation of Constitutional provisions and different statutes is that the place the phrases used are clear and unambiguous, they should be given a literal interpretation i.e. they should be given their abnormal and grammatical that means.

A really latest choice of the UK Supreme Court docket (UKSC) drives dwelling the purpose. That is the case of R v Adams (Appellant) (Northern Eire) [2020] UKSC 19 delivered on 13th Could 2020.

Whereby the united states refused to affirm the choice of the Court docket of Enchantment and put aside the arrest, detention, trial and conviction of Mr. Gerry Adams on the grounds that the Act pursuant to which he was detained supplied that the detention order is to be signed by the Secretary of State and that the detention order having been signed by somebody aside from the Secretary of State personally, the detention was invalid and the next trial and conviction on grounds of escape from lawful custody was a nullity.

The purposive strategy as argued by my discovered good friend and brother would have meant that the united states ought to have thought-about the truth that Mr. Gerry Adams was a recognized troublemaker and concerned in acts of terrorism on the time and as such the truth that the Secretary of State didn’t personally signal the order was not necessary son lengthy because it was signed by an officer of the Division and the aim for making the order had been achieved.

Nonetheless, the place the provisions will not be clear, are ambiguous or have turn out to be controversial, in an effort to arrive at an affordable development, the court docket is entitled to think about different provisions of the statute, how the legislation stood when the statute was handed, what the mischief was for which the previous legislation didn’t present and the treatment which the brand new legislation has supplied to remedy that mischief.

This is called the mischief rule.The impact of the assorted authorities referred to is that it’s the obligation of the Court docket to determine the intention of the legislature and to present impact to it.4

Thus, quite than the purposive strategy proposed by my discovered brother the golden rule is relevant as it’s the standing place of the Supreme Court docket within the Interpretation of Structure whereby it was acknowledged within the latest case of SARAKI v. FRN (2016) LPELR-40013(SC) thus:

“The golden rule of interpretation is that the place the phrases used within the Structure or in a statute are clear and unambiguous, they should be given their pure and abnormal that means except to take action would result in absurdity or inconsistency with the remainder of the statute. Ibrahim v. Barde (1996) 9 NWLR (Pt.474) 513: Ojokolobo v. Alamu (1987) Three NWLR (pt.61) 377 @ 402 F – H: Adisa v. Oyinwola & Ors. (2000) 6 SC (Pt.II) 47; Uwazurike & Ors. v. A.G. Federation (2007) 2 SC 169; Nigerian Military v. Aminu Kano (2010)5 NWLR (Pt.1188) 429.” Per KEKERE-EKUN, J.S.C. (P. 108, Paras. B-E)

It’s my humble submission that while the purposive rule is sweet and has its place the golden rule of interpretation is to be most popular always.

Lastly, all of the 4 (4) authorized penalties recognized by my discovered brother will not be new and have been with us for a very long time and I’m of the standard view that inviting the Supreme Court docket to run afoul of clear constitutional provisions isn’t one of many methods to settle or to handle the pitfalls.

I shall thus deal with every of the authorized penalties and pitfalls as highlighted by my discovered good friend and brother as follows:

  1. Delay in Prosecution of Circumstances:

The ACJA, 2015 comprises a number of provisions that clearly takes care of those points equivalent to the supply for digital recording (together with video) of a suspect’s confessional assertion,5 elimination of delays usually occasioned by interlocutory appeals equivalent to keep of proceedings,6 provision of a time restrict for the issuance of authorized recommendation by the Director of Public Prosecution (DPP)7, stipulation of how proceedings ought to be carried out from inception to conclusion, thereby eliminating each alternative for delays8 whereas additionally offering timelines for elevating sure objections9, the conduct of day-to-day trial (offers various the place not relevant) and the variety of adjournments allowed inside the lifetime of a case.

It’s subsequently clear that each one these issues added and supplied for below the ACJA, 2015 have been scheduled to avert the authorized consequence or pitfalls of delays as recognized by my eloquent discovered Brother.

As regards to the potential for Defendants in prison issues utilizing this interpretation by the Supreme Court docket as a prop within the deployment of dilatory ways to delay trials with the hope that the choose can be elevated and trial de novo would ensue, I’m of the standard view that that is most outlandish and extremely unbelievable.

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The place nevertheless the Court docket observes that there’s inordinate delay by way of dilatory ways by a defendant, this may be cured by the establishment and adoption of a considerable prices regime which the Courts shouldn’t be hesitant in deploying in opposition to such events and Counsel personally and the place the Court docket is of the view that such ways quantity to a breach {of professional} ethics by Counsel, the Courts ought to go additional to suggest the Counsel  for self-discipline by the related Committee.

  1. Injustice to the Prosecution:

The results recognized below this subhead are components of the unlucky end result of trial de novo usually and never simply in Legal proceedings alone.

The actual fact is {that a} trial de novo is a double-edged sword that cuts each methods because it affords either side of the dispute the chance to current a greater case, having seen what the opposite aspect offered within the earlier proceedings.

This isn’t one sided or an injustice to the prosecution alone, therefore, the categorization of this problem as a pitfall is with due respect to my discovered brother at greatest pointless in relation to the moment matter.

  1. Waste of Judicial time and Tax payers’ funds:

That is one other unlucky consequence of a trial de novo usually, no matter whether or not it’s in a prison, civil or industrial dispute and trial.

So long as there may be provision for and grounds below which a matter might be referred to trial Courts for trial de novo, judicial time and taxpayers’ funds in offering Courts’ companies and infrastructure must be expended and it could be disingenuous to hunt to put this as a resultant impact of the putting down of part 396(7) of ACJA.

  1. Floodgate of purposes in respect of concluded issues pursuant to part 396(7) of the ACJA

That is additionally an unlucky consequence of the truth that part 396(7) of ACJA is  unconstitutional provision of legislation. It ought to nevertheless be borne in thoughts that not all these affected would see cause in pursuing such a course.

My discovered brother within the article sought to put the complete weight of the above penalties recognized, on the shoulders of the Supreme Court docket, like the burden of the globe was positioned on Atlas,  while the true wrongdoer, the Nationwide Meeting, who ought to be held accountable and saddled with the duty or blame for all of the recognized defects and pitfalls is allowed to stroll away with none culpability. This with due respect is most unfair on the Supreme Court docket.

I’m of the view that the blame ought to be positioned squarely on the door of the Nationwide meeting that handed the unconstitutional provision of  the ACJA which the Supreme Court docket had no alternative than to strike down as unconstitutional.

The Nationwide Meeting is blame worthy as, in its quest to attain the lofty goals of guaranteeing that prison justice is expeditiously distributed with, it overlooked the actual fact that there’s a written Structure, the contents of which might be the sieve via which no matter legal guidelines are being enacted can be handed or examined.


It’s clear that each one legal guidelines handed by the Nationwide Meeting are alleged to be run via the filter of the provisions of the letters of the Structure, be it amended and reviewed or not.

Therefore, had the Nationwide Meeting adverted its thoughts to the provisions of part 290(1) and different provisions of the Structure in that regards in its promulgation of part 396(7) ACJA, the Supreme Court docket would have been saved the opprobrium to which it has been uncovered because of having to knock down the supply as being unconstitutional.

The query then arises, what may have been finished in another way? The Structure may have been amended to permit for the aim that Part 396(7) ACJA, 2015 sought to attain.

The Nationwide Meeting and different legislative arms of the Federating States ought to have in focus always, of their law-making perform, the necessity to by no means low cost the experience of those that function the Structure and to run sections of proposed legislations via the sieve of related Constitutional provisions.

It’s hoped that the Nationwide and States’ Assemblies have all learnt from the choice of the Supreme Court docket.

  • Olukayode Enitan, SAN, MCIArb.

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