Mike Ozekhome (SAN)
Introduction
It is no longer news that many Judges who have been elevated to the Court of Appeal from the various High Courts and Federal High Courts across Nigeria are still continuing with the hearing of matters that were part heard before their elevation. What is perhaps not known to most Nigerians is that such Judges were actually, on the 22nd of June, 2018, elevated to the Court of Appeal from the said lower courts.
In insisting on trying such part heard matters at all cost, come sun, come rain, the judges are perhaps relying on section 396(7) of the Administration of Criminal Justice Act (ACJA), which came into effect on the 15th of May, 2015. The section which was passed, perhaps in good faith, to prevent prolonged cases being heard de novo, provides as follows:
“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 criminal 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”.
The Issue For Determination
The question that begs for answer is whether, a Judge, having been elevated to the Court of Appeal, can still sit to try cases at the High Court or Federal High Court, relying on section 396(7) of the ACJA. Our humble answer is in the negative. For starters, section 397(7) ACJA appears to be a frontal attack and violation of sections 238(2), 240, 250(2) and 253 of the Constitution of the Federal Republic of Nigeria, 1999, as altered and decided cases on the subject matter. To that effect, the section is null and void by virtue of section 1(1) and section 1(3) of the said 1999 Constitution, which provides as follows:
(1) The Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) ………………..
(3) If any other law is inconsistent with the provisions of the Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”.
See the cases of AG ABIA STATE VS AG FED. (2002) 6 NWLR (PT. 763) 204 and ABACHA VS FAWEHINMI (2000) 4 SC (PT. 11), PAGE 1.
By virtue of section 6 of the 1999 Constitution, as altered, the judicial powers of the federation are vested in the courts of law as established by the Constitution. By section 6(5) thereof, the Court of Appeal is created as one of the superior courts of record. The jurisdiction of the Court of Appeal is as provided for in sections 238 – 240; with section 248 giving the president of the Court of Appeal powers to make rules regulating the court’s practice and procedure.
The Original And Appellate Jurisdiction Of The Court Of Appeal
By virtue of sections 239 and 240 of the Constitution, the original and appellate jurisdiction of the Court of Appeal to which these Judges have been elevated since June, 22, 2018, do not extend to the hearing or trial viva voce, of criminal matters pending before the High Court or Federal High Court. Section 239 deals with its original jurisdiction, and it provides as follows:
“Subject to the provisions of this Constitution, the Court of appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether –
Any person has been validity elected to the office of President of Vice President under this Constitution; of the term of office of the president or Vice- President has ceased; or
The office of president or Vice-President has become vacant”.
Section 240 of the Constitution of the Federal Republic of Nigeria, 1999, as altered, on the other hand, which deals with the appellate jurisdiction of the Court of Appeal, provides as follows:
“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be described by an Act of the National Assembly”.
***It is incomprehensible why trial judge would insist on continuing with part heard matters six whole months after their colleagues with whom they were sworn in and with whom they took oath of office as Justices of the Court of Appeal should still descend to the lower Bench and belittle themselves by answering the title “Judge of the High Court” or “Judge of the Federal High Court”, when their appropriate title has since changed to “Justices of the Court of Appeal”, since 22nd June, 2018, when they vacated their High Court or Federal High Court seats upon elevation to the Court of Appeal.***
The Federal High Court that still harbours some these promoted Judges has sections 251 and 252 dealing with its jurisdiction; whilst sections 249-254 deal with appointment of its judicial officers. By virtue of section 253 of the Constitution, “the Federal High Court shall be duly constituted if it consists of at least one Judge of that Court”. This means that no Justice of the Court of Appeal shall climb down from his exalted position to assume duties as one of the Judges of the Federal High Court, for the purpose of trying a charge.
The Court of Appeal, on the other hand, has section 239(2) guiding its composition. It provides that the Court of Appeal shall be duly constituted if it consists of at least three justices of the Court of Appeal”. This means, for example, that no Justice of the Court of Appeal shall exercise the judicial powers donated to a judge of the Federal High Court as envisaged in sections 251 & 252 of the Constitution, he not being a Judge of the said court as provided for in section 253 of the Constitution. The original and appellate jurisdiction of the Court of Appeal as provided for in sections 239 and 240 of the Constitution, respectively, do not extend to the hearing of criminal matters at the High Court or Federal High Court, in its original jurisdiction.
How Do We Address Such Judges?
By the way, how would we address such elevated Judges still trying charges before the lower court? Are we going to begin to address such an elevated Judge as “My lord, Justice of the Court of Appeal, but sitting here as Judge of the High Court/Federal High Court to try this charge”?; Or as “My Lord, Judge of the High Court/Federal High Court since elevated to the Court of Appeal, but donated to the High Court/Federal High Court to continue the trial of this Charge”? How will an elevated judge who tries a matter at the lower court from which he has been elevated sign his judgment? If he signs as “Justice of the Court of Appeal”, the entire Judgment is liable to be set aside for being illegal, unconstitutional and amounting to a complete nullity. If he signs as “Judge of the High Court”, or “Judge of the Federal High Court”, he lies and is liable to the offence of perjury, having taken the judicial Oath of office as Justice of the Court of Appeal” as prescribed in the 7th Schedule to the Constitution. See the cases of TERYTEX NIG. LTD v. NPA (1988)LPELR-20265(CA), A-G, EKITI V. C.O.P. EKITI STATE (2018) LPELR-4421(CA).
I humbly submit that by the judicial Oath of office as contained in the 7th Schedule to the Constitution, which the elevated judges have sworn to, he vows to perform his duties faithfully and in accordance with the provisions of the Constitution. It is our respectful submission that from the 22nd day of June, 2018, when various Judges of the High Court and Federal High Court were sworn in as Justices of the Court of Appeal, in accordance with the judicial oath as prescribed in the 7th Schedule to the 1999 Constitution, they automatically ceased to be Judges of the High Court or Federal High Court. Afortiori, they also ceased to have jurisdiction to continue to try matters which they ad hitherto handled before their elevation. The judges having been elevated as Justices of the Court of Appeal in line with the provisions of section 238(2) of the Constitution, they cannot, under any guise, continue to sit as judges of the High Court or Federal High Court. They lack competency and jurisdiction to try such matters.
By virtue of section 239 of the Constitution, the Court of Appeal, both in its original and appellate jurisdiction, has powers to hear and determine cases if it is composed of not less than three Justices of the Court of Appeal. This means that no such Justice can exercise the judicial powers of the High Court/Federal High Court, in the same way that no Judge of the High Court/Federal High Court shall exercise judicial powers specifically reserved for the Court of Appeal. To underscore the enhanced and upgraded status of a judicial officer elevated to the Court of Appeal, he is usually referred to as “Justice of the Court of Appeal” (like his counterpart, “Justice of the Supreme Court”); whereas his counterpart at the lower Bench from which he has vacated is still simply referred to as “Judge of the High Court/ Federal High Court”. This is why section 3(2) of the Court of Appeal Act provides, most unambiguously, that:
“The President shall rank equal to a Justice of the Supreme Court and the other Justices of the Court of Appeal rank next to the Justices of the Supreme Court and equal to the Chief Judge of the Federal High Court”.
This shows that Justices of the Court of Appeal are superior to the judges of the High Court/Federal High Court. They can upturn their judgments. The hierarchical structure of Nigerian superior courts identified in section 6 of the Constitution is inviolate and immutable. It is to enable justice travel on its legs from the High Court/Federal High Court, to the Court of Appeal, and then to the Supreme Court. Indeed, the Court of Appeal does not hear and determine criminal cases by calling witnesses viva voce, or writing lone Judgments. This is amplified by sections 15, 18, 19 and 26 of the Court of Appeal Act.
It is humbly submitted that once a judicial officer has been elevated to a higher court, he immediately and automatically shreds the toga of his original status as a Judge of the lower Bench. He ceases equality with these former peers who were not so elevated. He becomes a new creature. He dorns the garment of 2 Corinthians 5:17.
END
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