BREAKING: LAWYER MAKES A NONSENSE OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT

A DISSECTION OF SECTION 396(7) OF ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015: ATTEMPTING A NOBLE END THROUGH AN UNCONSTITUTIONAL PASSAGE. (1)

BY: JOHNMARY CHUKWUKASI JIDEOBI, Esq.*



“Jurisdiction is the legal power or legal authority that enables a judge to enter into adjudication in a matter before him… It therefore follows that when a court takes upon itself to exercise power under jurisdiction which it does not possess; its decision is tantamount to nothing. Let it be noted that an action of a judge which does not relate to his office, is of no force; there can never be obedience to any order he may make.”

…. Per Aderemi, J.S.C. (2007) 11 N.W.L.R. (Pt. 1046)

It is no longer news that the tripartite institutions that constitute the Criminal Justice Administration system in Nigeria nay; the Police, the Judiciary and the Prisons are yet to rise to the expectations of the society in terms of performance, no thanks to the colonial relics of the Criminal Procedure Act (CPA) and Criminal Procedure Code (CPC). 

What however may be news about our Criminal Justice Administration system is that shortly before the Administration of former President Goodluck Jonathan came to an end on the 29th May, 2015, a new legislation came into force to essentially provide for the administration of criminal justice in all federal courts and for related matters. That law is the Administration of Criminal Justice Act, 2015 (called ACJA henceforth in this write-up)

BACKGROUND FACTS:
It is said that the journey toward the reform of the administration of criminal justice in Nigeria dates back to 2004 when Chief Akin Olujinmi, SAN, established the National Working Group on the Reform of Criminal Justice Administration. While many more interventions and contributions came thenceforth, in 2011, Mr. Mohammed Adoke, the former Attorney-General of the Federation established the Panel on the Implementation of Justice Reform. All in all, the ACJA was passed by the National Assembly at the eleventh hour as confirmed by Professor Yemi Akinseye-George, SAN, who in his introductory note on the ACJA stated thus;

“As the Bill was passed by the 7th Senate in its dying days, it took the intervention of Mr. D.D. Dodo, SAN, OFR who upon request personally telephoned the President of the National Assembly, Distinguished Senator David Mark, GCON and urged him to ensure that the Administration of Criminal Justice Bill was passed before the end of the term of the 7th Senate. Setting aside the practice of allowing his Deputy to preside the consideration of Bills at Plenary, the Senate President took the bull by the horn and personally presided over the clause-by-clause consideration of the Bill by the Senate. This was probably the master stroke that ensured the passage of the Bill at that eleventh hour of the 7th Senate.”
The ACJA appears to have successfully achieved a total overhaul of the entire landscape of our Criminal Justice Administration system. Some of its outstanding and brilliant innovations will always include;

Abolition of arrest without warrant previously available to the Police under the now deleted Section 10(1) of the CPA
Mandatory inventory of the property belonging to an arrested suspect
Proper recording of the details of an arrested suspect including the circumstances surrounding such arrest and biometric data of the suspect
Establishment of a Police Central Criminal Records Registry (CCRR) with a view to ensuring that all arrest and judgments are well captured and properly documented.

There is indeed a legion of innovations enthroned by the Act reflecting positively and commendably on the ingenuity of the draftsmen. 
However, of all the beautiful innovations evolved by the Act, the provision of Section 396(7) sticks out as a sore finger. Without much ado, that curious provision, which forms the fulcrum of this article, now reads;

“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 purpose of concluding any part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time:

Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.”
According to Professor Akinseye-George in his introductory note to the ACJA, “this provision is intended to address the problem of trial de novo”

FOCUS AND OBJECTIVES OF THE WRITE-UP:

The interest and humble attempt of this contribution is to lay open the unconstitutionality of a Court of Appeal Justice sitting in the High Court as a High Court Judge and discharging the functions of that office to whatever end(s). This writer shall vigorously contend that the National Assembly lacks the legislative competence to enact a provision capable of mutilating the Constitutional provisions covering the composition of both the High Court and the Court of Appeal. Under no circumstance should an Appeal Court Justice descend to perform the office of a High Court Judge. Whenever and if ever it happens, all that will result from the exercise of such powers will be a nullity since the jurisdiction to so act never existed in him and could not have been validly conferred on him by an Act of the National Assembly such as the ACJA since the Constitution has totally covered the field on all issues touching on the composition of Court under that ancient doctrine of “covering the field”

THE GIST OF THE MATTER: SECTION 396(7) OF THE ACJA, 2015 IS UNCONSTITUTIONAL:

There is no iota of doubt that a court does not exist of its own but rather derives its existence from a statute. Put more correctly, every court is midwifed by a statute. Since our present concern is on the Federal High Court and the High Court of the Federal Capital Territory, Abuja, we shall limit our inquiry to the creation or establishment of those courts. We make haste to state, as a matter of law, that the Federal High Court is established by the express provision of section 249(1) & (2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended(henceforth called ‘the Constitution’). The section under consideration is neither lengthy nor recondite and for the purpose of completeness, we reproduce it hereunder;
249 (1) There shall be a Federal High Court 
(2) The Federal High Court shall consist of-
(a) a Chief Judge of the Federal High Court; and
(b) such number of Judges of the Federal High Court as may be prescribed by an Act of the National Assembly.

In turning the full circle, the Constitution goes ahead to state the manner in which the Federal High Court shall be composed. To this end, Section 253 of the Constitution, in the clearest of terms, states thus;

253 The Federal High Court shall be duly constituted if it consists of at least one Judge of that court.
In the same tone and tenor, the same Constitution by Section 255 (1) & (2) makes clear and ample provision for the establishment of the High Court of the Federal Capital Territory as follows;
255(1) There shall be a High Court of the Federal Capital Territory, Abuja.
(2) The High Court of the Federal Capital Territory, Abuja shall consist of –
(a) a Chief Judge of the High Court of the Federal Capital Territory, Abuja; and
(b) such number of Judges of the High Court as may be prescribed by an Act of the National Assembly.
To equally turn the full circle, section 258 of the Constitution lays down the manner in which the High Court of the Federal Capital Territory shall be constituted and it is in this plain language;

258 The High Court of the Federal Capital Territory, Abuja shall be duly constituted if it consists of at least one Judge of that court.
Having set down the relevant provisions establishing both the Federal High Court and the High Court of the Federal Capital Territory, we shall now attempt to interpret those provisions with a view to arriving at the demonstration of how Section 396(7) of ACJA is in gross violation of the said Constitutional provisions rendering same void and otiose to the extent of its inconsistency with the Constitution under the sacred doctrine of Constitutional supremacy ordained by section 1 (1) of the Constitution itself.

INTERPRETATION

A community and dispassionate reading of the following cases;
- A-G Bendel State v. A-G Federation & Ors (1982) 3 NCLR 1; (1981) 9 S.C. (Reprint) 1 at 78-79
- Global Excellence Communication Ltd. v. Duke (2007) 16 N.W.L.R. (Pt. 1059) S.C. 22 at pages 41-42 would amply reveal that the principles guiding the courts in interpreting or construing the provisions of our Constitution would include the following;
(a) Effect should be given to every word
(b) A construction nullifying a specific clause will not be given to the Constitution unless absolutely required by the context.
(c) A Constitutional power cannot be used by way of condition to attain unconstitutional result.
(d) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.
(e) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be dissevered from the rest of the Constitution.
(f) While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to meaning.
(g) A Constitutional provision should not be construed so as to defeat its evident purpose.
(h) Under a Constitution conferring specific powers, a particular power must be granted or it cannot be exercised.
(i) Delegation by the National Assembly of its essential Legislative function is precluded by the Constitution 58(4) and section 4(1)
(j) Words are the common signs that mankind make use of to declare their intention one to another and when the words of a man expresses his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation. 
(k) The principle upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.
(l) Words of the Constitution are therefore not to be read with stultifying narrowness.
The above principles underpinning Constitutional interpretation in Nigerian jurisprudence were restated and reaffirmed in the fairy recent case of Elelu-Habeeb v. AGF (2012) 13 N.W.L.R. (Pt. 1318).

Flowing from the above, it is apt to posit that the language of the Constitution in establishing both the Federal High Court and the High Court of the Federal Capital Territory is plain and unambiguous and therefore shall be accorded its natural dictionary meaning. No doubt, the National Assembly possesses the amplitude and latitude of powers to make laws for the good governance of the Nigerian Federation as sanctioned by Section 4 of the Constitution. However, the point is simple and it is this: the National Assembly lacks the vires to alter any Constitutional provision with a view to achieving any end (no matter how noble and beneficial it might be to the society) by merely enacting an Act which at all times ranks lower than and derives its power, validity and strength from the Constitution. When therefore the National Assembly exceeds its Constitutional powers, the Court will have a duty to intervene if rightly approached.

THE DOCTRINE OF COVERING THE FIELD

The gist of the “doctrine of covering the field” is to the effect that a State House of Assembly shall not make a law that challenges an Act of the National Assembly where the later has evinced and demonstrated a sufficient intention of taking care of the subject matter of such legislation(s). The case of Ex-Parte McLean (1930) 43 CLR 472 at 473 bears this out. This doctrine of covering the field was propounded in Australia by that famous Judge, Dixon J. in the well-known case of The State of Victoria & Ors v. Commonwealth of Australia & Ors (1937) 58 CLR 618 at 630. 
It has been said that this ancient doctrine, which is now of venerable antiquity, is well entrenched in our Constitution and has equally received overwhelming endorsements of the Nigerian Supreme Court as borne out by these authorities;
- Lakanmi v. Attorney-General Western State (1971) 1 UILR 201 at 209
- A-G Ogun of State v. A-G of the Federation (1982) 13 NSCC 1
- A-G of Abia State & 35 Ors v. A-G of the Federation (2002) 3 S.C. 106
- INEC v. Musa (2003) 1 S.C. (Pt. 1) 106.

The doctrine of covering the field has equally been expansively held to apply to instances where an Act of the National Assembly either conflicts with constitutional provisions or even replicates same as confirmed by the Supreme court, per Uwais, C.J.N. (Rtd.), where it was stated thus;
“I agree that the doctrine of covering the field can conveniently be extended to apply to a situation where the Constitution has covered the field vis-à-vis a federal or state legislation, such legislation is not void simpliciter but will not be operative in view of the provisions of the Constitution. However if the legislation is inconsistent with the provisions of the Constitution, then, the legislation is void to the extent of the inconsistency vide Section 1 subsection (3) of the Constitution.”
Going further and as a consequence, His Lordship brought down the sledgehammer of that powerful doctrine and shattered some repugnant provisions of the then Electoral Act, 2001 in this unmistakable language;
“Applying the aforesaid position, I have no difficulty in holding that the provisions of section 25 subsections (2) (b), (e), (g), (h), (m), (n), (o), (p) of the Electoral Act are either void for being inconsistent with the provisions of the Constitution or inoperative for repeating what the Constitution has provided.”

The consecrated principle of law emerging from the womb of the above authorities point unequivocally to the confirmation of the long settled postulation that the National Assembly can never alter, enlarge or modify any part or provision of the Constitution where the Constitution itself has evinced a clear intention of governing a particular conduct or field of subject matter. In such circumstance, the only passage open to the National Legislature is to amend the Constitution itself since an Act of the National Assembly cannot achieve such a mission.
While it is agreed that the National Assembly has the powers to make laws, such as the ACJA, 2015, the rider must however be emphasised and it is to the effect that in the exercise of the enormous powers bestowed on it by Section 4 of the Constitution, the National Assembly can never and it is indeed incompetent to enact an Act, such as Section 396(7) of ACJA, 2015, purporting to modify, alter, increase, add, subtract from or even repeat a provision of the Constitution in any field where the Constitution itself has evinced the intention of covering such as the establishment and composition of both the Federal High Court and the High Court of the Federal Capital Territory, Abuja. See A-G of Abia State & 35 Ors v. A-G of the Federation (supra); INEC v. Musa (supra).

To be continued tomorrow.


source: http://www.nairaland.com/3552499/breaking-lawyer-makes-nonsense-administration
BREAKING: LAWYER MAKES A NONSENSE OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT BREAKING: LAWYER MAKES A NONSENSE OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT Reviewed by David Brunt on Tuesday, January 03, 2017 Rating: 5

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