Abdulrasheed Ibrahim, LL.M, Notary Public
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 ?
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