Abdulrasheed Ibrahim, LL.M, Notary Public
I have argued severally in the past that I do not agree that a Justice of the Court of Appeal who descends to the lower court to perform any special judicial duty has degraded or belittled himself/herself. On question as to how a judge like Hon. Justice M. B. Idris will sign the judgement he goes to the the lower court i.e Federal High Court to conclude, if he signs as a judge of the Federal High Court, he cannot be said to have lied in my opinion because whenever he is sitting to conclude the matter he left behind, he is working in that court on special duty and in the capacity of a judge of that court pursuant to Section 396 (7) of ACJA 2015 and the Fiat/ Permission given to him by the PCJ which he must even indicate in that judgment . The argument that PCA lacked the power to give fiat to do that in view of the power of the Chief Judge of Federal High Court to control the affairs of the court was of no moment as we may ask that: who assigned the case to Hon. Justice M.B. Idris when he was at the Federal High Court. The PCA’s Fiat/Permission given to him was just only to go and conclude his part heard matter within a reasonable time and not to take up new matter in the Federal High Court. I have been asking those lawyers citing some sections of the constitution which they say Section 396 (7) of ACJA goes aginst that: Can Hon. Justice M.B. Idris alone exercise the power of the Court of Appeal without sitting with other two justice of the court to form a courm?
On the holden in the judgment under review that: “the law remains that a judge, who has been elevated to the Court of Appeal, cannot go back to the High Court, put on a second cap, and continue sitting as a High Court Judge”. Let us consider this hard fact in the history of Legal Profession in Nigeria. In 1983, Hon. Justice Abdullahi Umar was elevated to the Court of Appeal from the then Kaduna State High Court and was a Justice of that court until 1987 when Katsina State was created. He left the Court of Appeal to serve as the first Chief Judge of the new State. He later returned to the Court of Appeal to retain his seniority and eventually retired as the 4th President of the Court of Appeal .For Hon. Justice Umar to have left Court of Appeal briefly and later returned, could it be said that the learned retired jurist once wear a second cap or degraded himself? Can Chief Mike Ozekhome (SAN)’s school of thought debunk this hard historical fact? For those who have read Mr. Falana’s position of this issue, can those judges who at one time or the other given fiats/permissions to go and perform some special judicial duties within and outside the country be said to have worn second caps? Can anyone blame the likes of Professor Itsey Sagay (SAN) for expressing his view below on the new Supreme Court’s decision under review?
“I think this judgment is a great disservice to this country.It’s a great setback because it drags us back into iniquity of cases that have no end without any good reason at all…We found, in many cases, judges who had spent five to seven years on a case, they were promoted and then could not continue with it .A new judge would start and the case would begin all over again. It was killing our judicial system. That’s why the National Assembly passed that law under the ACJA…I’ m not aware that the constitution specifically outlaws it…”
In the present circumstance, who do we blame? Do we blame, the legislature or the executive or the judiciary or the legal profession or even the entire Nigerian people? Can we say Mr. Abiodun Owonikoko (SAN) in his opinion titled, “N7.1 bn: Supreme Court Lawfully Quashed Kalu’s Conviction” actually answer these questions? :
“We always knew that the judgment of the trial court was technically flawed (not on the merit though) hence the order for trial de novo (afresh) …It easy to predict that it might not survive on appeal based on the snag of the judge coming back from the Court of Appeal to deliver judgment on a criminal trial that he did not conclude before his elevation….Administration of Criminal Justice (ACJA) gave a judicial officer that leeway, but that ,it requires a constitutional amendment to valiadate it.Unfortunately we did not have such amendment at the material time and sadly, till date…The lynch mob mentality of conviction by whatever means misled EFCC to continue with the trial after Idris JCA had been appointed a Justice of the Court of Appeal…..”
Honestly, I cannot buy into the above view expressed by the learned silk. It was the Lagos State that started what has come to be known today as the Administration of Criminal Justice Law to hasten the speedy dispensation of justice in criminal matter, it was borrowed at the Federal level for adoption with some changes here and there. Today many states in the Federation are adopting the law as theirs. I am yet to get a satisfactory answer to the question that has been bothering my mind that: what are the specific things the National Assembly supposes to do on that law but has refused to do? Even the Supreme Court in its judgment under review did not answer the question as the institution only attacked the Section 396 (7) of ACJA. I am yet to see anything wrong with the said section in issue. When the Court of Appeal delivered its judgment on the case under review, I wrote the article titled: ADMINISTRATION OF CRIMINAL JUSTICE WINNING THE ARGUMENT, with the full confidence that the Court of Appeal had done the right thing by upholding the validity and constitutionality of the Section 396 (7) of ACJA. I had the strong belief then that I saw no reason why the Supreme Court would up turn the Judgment. But when the apex court’s decision came unanimously setting aside the Court of Appeal’s decision, it was very big surprise for me particularly when none of the Justices on the panel dissented.I am of the view that although a dissenting judgment is not a decision of an appellate court, but I would have written a dissenting judgment, if I were a Justice of the Supreme Court and sat on that panel.
Before ending this critique, there is one point I want to raise here which I do not care if some people call it propagadan. Those that frontal attack the Section 396 (7) of ACJA in the court of law did it for the purpose of shielding or delaying or frustrating the trial of their clients being called upon to render their account and stewardship while holding the public office in trust. That, I must confess is one of the attributes of smart lawyers defending their clients. But in the course of doing that, must the clear wordings of a law be twisted to achieve that? They need to be congratulated for their success in doing that. A case that had lasted for 12 years, must now go back for re-trial before another judge ,even despite the fact that one of the defendants had asserted that it would work untold hardship on them. Who knows if the case will come to an end in another 12 years? Only time will answer this question! With this development, are we developing our judicial system or making mimickery of the English Common Law that we have borrowed as rightly observed above by a former Chief Justice of Nigeria. One of the things I like in the Supreme Court’s decision under review is its interpretation of the word DISPENSATION as used in the the Section 396 (7) of ACJA : According to the Learned Jurist, Hon. Justice Eko that read the leading judgment:
“‘Dispensation’, according to both Oxford Advanced Learner’s Dictionary and Black’s Law 9th Ed., is a permission to do something that is not usually done , allowed, legal or lawful.Therefore, the question is ; on what constitutional authority does either the National Assembly or the President of the Court of Appeal stand to grant this ‘dispensation’ to the Honourable Justice M.B. Idris ,JCA to continue to act as a Judge of the Federal High Court after he had ceased to be a judge of the Federal High Court upon his elevation to the Court of Appeal?”
With utmost due respect to our Supreme Court, I believe from what we have discussed so far above, we have been able to answer the question posed the learned jurist above.When I was reading the judgment under review and got to portion of the interpretation i.e “a permission to do something that is not usually done…”, honestly what actually came to my mind was the view of that great Eminent English jurist, Lord Denning in the case of Parker Vs. Parker (1953) 2 ALL E.R. 121 where he said :
“What is the argument on the other side? Only this, that no case has been found in which it has been done before .That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere .The law will stand still while the rest of the world goes on and that will be bad for both.”
Now with our latest Supreme Court’s decision under review, are we getting anywhere? With the the case involving Mr. Orji Uzor Kalu litigated upon for 12 years but on the order of the apex court now going back to the trial court to start afresh. As far as our judicial system is concerned, has the rest of the world not gone and left us behind? To borrow from the words of Chief Mike Ozekhome (SAN), how will Posterity judge us and our judicial system? To me, this Supreme Court’s decision under review does not call for a celebration or jubiliation or even victory song or prayer, rather it calls for a deep reflection on the part of every rational member of the legal profession whether at the Bar or on the Bench. According to Hon. Justice Belgore about 13 years ago: “we have faced more circumstances that ought to compel our rethink”. Is our rethink not long over due? What is your view and where do you stand?
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