Aside the 7th Schedule to the Constitution, section 290(1) thereof prohibits a person appointed to judicial office from performing the duties of his office until he has first declared his assets and liabilities as prescribed by the Constitution. He must also subsequently take and subscribe to the Oath of allegiance and the judicial Oath. The said judicial oath can be found in the 7th Schedule as follows:
“I, …… do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court of Appeal/Chief Judge/Judge of the Federal High Court/Chief Judge/Judge of the High Court of the Federal Capital Territory, Abuja/Chief Judge of …… State/Judge of the High Court of …… State/Grand Kadi/Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of the Sharia Court of Appeal of …. State/President/Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja/President/Judge of the Customary Court of Appeal of ……… State. I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law, that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria.
So help me God”.
It amounts to a grave contradiction in terms for any judicial officer who has subscribed to the judicial Oath as Justice of the Court of Appeal to literally have a free fall and descend to the lower court to hear uncompleted, but pending cases. Such an act is not only illegal and unlawful, it is unconstitutional, null and void.
In the case of CHUKWUMA V. NWONYE (2009) LPELR 4997 (CA), the intermediate court stamped imprimatur as follows:
“Oath is defined as “a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise.” The implication or legal effect therefore of an oath is to subject the person who took an oath to penalties for perjury in the event that the testimony turns out to be false.” Per ARIWOOLA, J.C.A (Pp. 12-13, paras. A-B)”.
Importance Of Jurisdiction
For the avoidance of doubt, jurisdiction is the spinal cord and live wire of any court proceedings. Where the court lacks jurisdiction, the entire trial however, beautifully conduct, evaporates into shambles, becomes a total nullity and is consigned to the vehicle of judicial oblivion.
In the case of NDIC V. CBN & ANOR (2002) LPELR-2000(SC), the apex court held as follows:
“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity…. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this court; a fortiori the court can suo motu raise it. It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.” Per UWAIFO, J.S.C. (Pp.16-17, paras. G-B)”.
Similarly, in the case of AKERE & ORS. V. THE GOVERNOR OF OYO STATE & ORS. (2012) LPELR-7806(SC), apex court further buttressed on this issue as follows:
“The over-riding importance of jurisdiction cannot be overstated. It is the life blood of any litigation before a Court properly so-called. It is so fundamental that when a Court has no jurisdiction, any action taken by that Court will be a nullity notwithstanding the fact that the proceeding was well conducted. See Osakue v. Federal College of Education Asaba & Anor (2010) 5 SCM 185, 201-202. See also Madukolu v. Nkemdilim (1962) 1 ANLR (Pt. 4) 587 for the principles which define the jurisdiction or competence of a Court to entertain a particular matter.” PER NGWUTA, J.S.C. (Pp.23-24, Paras. G-C)”.
In the causa celebre on jurisdictional issues, MADUKOLU V. NKEMDILIM 2 SCNLR 341, (1962) 1 ANLR (Pt. 4) 587, the apex court laid down the following conductions which must be wholly present before a court can be deemed to here jurisdiction:
(a) it is properly constituted with respect to the number and qualification of its members;
(b) the subject matter of the action is within its jurisdiction;
(c) the action is initiated by due process of law and
(d) any condition precedent to the exercise of its jurisdiction has been fulfilled.’
What the ACJA in section 396(7) has audaciously, but vaingloriously attempted to do is, rather than blow muted trumpet and defer to a superior law, ie, the Constitution, the fons est origo, the grand norm and the “Kabiyesi”, “Eze” and “Emir” of our laws, it seeks to torpedo the Constitution itself. Such a law as the ACJA must suffer a merciless strike down under section 1(3) of the said Constitution. The ACJA has no powers to grant dual citizenship to a judicial officer as both Judge of the High Court/Federal High Court and Justice of the Court of Appeal.
It is akin to the bat that claims to be a mammal (of the order of Chiroptera), because it has teeth, ears, mammary glands, produces milk to feed its young and with forelimbs like all animals do. It simultaneously claims to be a bird because it can fly like all birds.
The sore question that begs for an answer is whether a Judge of the High Court or Federal High Court lawfully and legally elevated to the Court of Appeal can still maintain dual status and exercise dual judicial powers over cases in both the Court of Appeal (as a Justice) and the High Court or Federal High Court (as a Judge). This cannot be so.
It is humbly submitted that any elevated judge having lost the toga of being a Judge of the High Court or Federal High Court, the proper thing for him to do is for such Justice of the Court of Appeal to recuse himself, send the case file back to the Chief of the High Court or Federal High Court, to be reassigned to another judge of the said High Court or Federal High Court, in line with section 253 of the Constitution, which provides for the constitution of the Federal High Court. Such a Judge must, like Pontius Pilate, wash his hands off the case, to prevent being accused of undue and special interest in such a matter. The mere suspicion by a litigant that he is being “tried” at the trial court by a Justice of the Court of Appeal who lacks judicial competency to do so is sufficient for such a judge to recuse himself. After all, justice is rooted in confidence.
In MBAS MOTEL LTD. V. WEMA BANK PLC. (2013) LPELR-20736 (CA), the Court of Appeal held as follows:
“We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins.” Per ABIRU, J.C.A. (P. 26, Paras. E-G)”.
In JWAN v. ECOBANK & ANOR (2018) LPELR-45631(CA), the Court of Appeal held as follows:
“Before concluding this appeal, this Court considers it pertinent to reiterate that it is essential to understand that the aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. *Justice is rooted in the confidence that the public repose in the administration of justice system and it behooves the Courts, therefore, to ensure that they do not do anything to erode the root of justice*. It is matters like the present one that leaves the entire judicial system open to ridicule and the risk of becoming irrelevant to the aspirations of the people. Uwaifo, JCA (as he then was) made this point succinctly in State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 220 thus: “I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach to justice in our Courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride. The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends. That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the alertness of Judges. But if the judiciary takes a back seat through unsatisfactory input by Judges even of superior Courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man.” Per ABIRU, J.C.A. (Pp. 30-32, Paras. F-C).
Can Parties Voluntarily Confer Jurisdiction On A Court?
I have had the benefit of hearing the argument of some counsel or appellate Justices still hearing such part heard matters across Nigeria after their elevation. It is to the effect that Counsels who are participating in such proceedings actually wrote and requested that such Justices should continue with the hearing of such cases. That argument flies in the face, and assaults trite principles of law. For the avoidance of doubt, parties cannot by consent or agreement confer jurisdiction on a court where such is not in existence. I humbly refer to the case of ONNA TRADITIONAL RULERS COUNCIL & ORS V. UMOREN & ORS (2018) LPELR 44301(CA), where the Court of appeal held as follows:
“It is trite that where jurisdiction is absent, parties cannot by waiver or consent confer jurisdiction on the Court”. Per OYEWOLE, J.CA. (P. 15, para E).
As held in the case of Prof. Steve Torkuma Ugba & Ors v. Gabriel Torwua Suswam & 4ors (No. 2) (2012) 6 SC (PT.II) 56, “jurisdiction of courts is granted by statute or Constitution but not by courts. In which case, no court shall have jurisdiction to go beyond the provisions of the enabling law. Otherwise, will be ultra vires”.
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