By Benita Ayo

Overview

This is a commentary on the paper presented by a learned Senior Advocate of Nigeria, Asiwaju Adegboyega Awomolo where he examines the issue of the vacuum created when a judge who is conducting a criminal trial is elevated to the Court of Appeal, as well as the conflict between the provisions of the constitution and the Administration of Criminal Justice Act (ACJA) when this situation arises.

With the aid of decided cases, he concluded that in this instance, an elevated judicial officer cannot continue to hear the matter because from the point of elevation, he/she lacks the requisite jurisdiction to do so.

According to him, the only resolution to the issue, is for the matter to be commenced ‘de novo’ before another judge having the requisite jurisdiction to hear the matter.

The said Section  396 (7) ACJA 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 purpose of concluding any partly heard criminal matter pending before him at the time of his elevation, and shall conclude the same within a reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of a Court of Appeal.”

Now, Section 1 (1) and 1 (3) of the 1999 Constitution of the Federal Republic of Nigeria provides that;

“1(1)    This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federation Republic of Nigeria.”

For purposes of clarity, its Section 1(3) goes further to state:

“1(3)    If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and other law shall to the extent of the inconsistency be void.”

COMMENTS

The issues arising from the conflicts are;

• Jurisdiction of a Justice of the Court of Appeal to continue to sit over a matter at the State High Court
• The doctrine of the supremacy of the constitution (1999 as amended)
• Whether indeed, s. 396 (7) ACJA is inconsistent with the Constitution of the Federal Republic of Nigeria 1999 (As amended)
• JURISDICTION OF A JUSTICE OF THE COURT OF APPEAL TO CONTINUE TO SIT OVER A MATTER AT THE STATE HIGH COURT.

Generally speaking, Jurisdiction means the official power to make legal decisions and judgments. It is also the extent of the power to make legal decisions and judgments.

In FBN LTD v. ABRAHAM (2008) LPELR-1281 (SC), the Court defined jurisdiction thus, ‘What is the meaning of jurisdiction? By judicial authorities, jurisdiction is the authority by which a court has to decide matters that are laid before it for litigation or to take cognizance of matters presented in a formal way for its decision. Let it be said that the limits of this authority are, by practice, imposed by statute or law under which the court is constituted. It may be extended or restricted by similar means. If no restriction is imposed, the jurisdiction is said to be unlimited’.

Furthermore, the Supreme Court per OPUTA, JSC (Pp. 39-40, paras. C-A) has defined jurisdiction in the case of ONYEMA & ORS v. OPUTA & ANOR (1987) LPELR-2736 (SC) that; ‘It is thus necessary for the proper appreciation of the issues in this case to understand the concept and content of “jurisdiction”. Briefly stated jurisdiction as it applies to courts can mean one of two things:-

1. The abstract right of a court to exercise its powers in causes of a certain class, or

2. The right of a court or tribunal to exercise its powers with respect to a particular subject matter.

In one sense, the broader sense, jurisdiction refers to the legal authority, the legal capacity, to adjudicate at all; while in the narrower sense it refers to the power of the court over the particular subject matter in dispute, over the res or property in contest. This latter sense may be referred to, as territorial jurisdiction, or venue, or the area of authority – the geographical area beyond which the court’s power (or legal jurisdiction) is not to be extended.’

CLASSES/TYPES OF JURISDICTION

Jurisdiction may be any of the following;

• Territorial (This is the power or authority to preside over a particular location or venue e.g. the Federal High Court has jurisdiction over the entire territory of Nigeria but the State High Court only have jurisdiction over the state in which it is located)
• Subject matter (The authority to adjudicate over certain causes of action. An example is the jurisdiction of the Federal High Court to preside over Admiralty matters and Issues bordering on the interpretation of the provisions of CAMA)
• Exclusive (This is the right to hear a matter to the exclusion of other courts e.g, the Supreme Court have exclusive jurisdiction to hear matters between the Federation and the State)
• Concurrent (This is where the right to hear a matter is shared between more than one court)
• Original (This is right to hear a matter before any other court. e.g, the Court of Appeal has original jurisdiction to hear matters on whether the President or Vice-President has been validly elected, whether the term of the President has ceased or become vacant See s. 239(1) CFRN 199 (As amended).
• Appellate (This is the authority to hear appeals from lower courts e.g. is the Court of Appeal has the appellate jurisdiction over appeal from the Federal High Court, State High Court, National Industrial Court)
• Substantive (This pertains to matters which the court may specifically adjudicate upon as stipulated by statute)
• Procedural ( This pertains to the compliance of certain rules and principles of the court. this type of jurisdiction can be waived)

It is settled law that jurisdiction is the foundation of any court proceeding. Its importance is so fundamental to the matter that it can be raised at any time even up to the Supreme Court for the first time. A court cannot assume jurisdiction or confer itself with jurisdiction where it lacks same. In the case of CBN v. AUTO IMPORT EXPORT & ANOR (2012) LPELR-7858 (CA) the court held as follows;

“It has been stated, time without number, in a plethora of authorities, that jurisdiction is the threshold and livewire that determines the authority of a Court of law or tribunal to entertain a case before it. This is absolutely so, because it is only when a Court is imbued or conferred with the necessary jurisdiction by the Constitution and law that it will have the judicial power and authority to entertain, hear and adjudicate upon any cause or matter brought before it by parties. Conversely, the absence of such requisite jurisdiction would render any proceedings purportedly conducted by Court an exercise in futility, thus null, void and of no effect whatsoever, no matter how well conducted. ……………….

It is equally a well settled principle, that where a Court lacks jurisdiction to try a matter or case, it fundamentally lacks the vires to hear, and adjudicate upon any issue therein. Thus, due to the complex and fundamental nature thereof, the issue of jurisdiction can be raised at any stage and point in time of the proceedings, at the trial Court, the Court of Appeal, or even the apex Court itself. This trite principle has been settled in a plethora of authorities, including the locus classicus thereof, MADUKOLU VS. NKEMDILM (1952) NSCC 374; (1952) 2 SCNLR 341.”

In the instant situation the question which comes to mind is whether a Judge of the High Court presiding over a criminal trial has the requisite jurisdiction to continue the hearing of the matter after he has been elevated to the Court of Appeal as a Justice.

I will say no because subject to the principles of hierarchy of courts in Nigeria, the Court of Appeal do not share concurrent jurisdiction with the State High Court in respect of any matter.

The Court of Appeal only has Appellate Jurisdiction to hear appeals from the High Court to it whereas the State High Court has jurisdiction to hear civil and criminal actions.

As stated before now, jurisdiction cannot be conferred on a court nor can parties by agreement confer same on the court where the statute creating such courts like in this case, the constitution has not conferred such jurisdiction.

I will like to bring to our minds the provisions of the constitution conferring jurisdiction on the High Court and Court of Appeal accordingly.

Section 239 (1) of the constitution of the Federal Republic of Nigeria 1999 (As amended) conferred original jurisdiction of the Court of Appeal on the following matters and it expressly provides that;

(1) “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-

(a) any person has been validly elected to the office of President, Vice-President, Governor or Deputy Governor under this Constitution; or

(b) the term of office of the President, Vice-President, Governor or Deputy-Governor has ceased; or

(c) the office of President, Vice-President, Governor or Deputy has become vacant

(2) In the hearing and determination of an election petition under paragraph (a) of subsection (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal”.

Section 240 provides that;

S. 240 “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 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 the Federal Capital Territory, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.

Furthermore, the Court of Appeal is properly constituted where there are at least 3 Justices sitting. It does not have the requisite Jurisdiction to hear Criminal or Civil matters except on appeal from the State High Court.

On the other hand, section 270 of the constitution created the High Court of a State and section 272 (1) specifically confers the State High Court with its general jurisdiction where it provides that;

(1) “Subject to the provisions of section 251 and other provisions of this constitution, the High Court of a State shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any person.”

(2) The reference to civil or criminal proceedings in this section includes a reference to the proceedings which originate in the High Court of a State and those which are brought before the High Court to be dealt with by the court in the exercise of its appellate or supervisory jurisdiction.”

As it may be seen from the foregoing provisions, there is no where within the said sections as well as the ones stated above that a Justice of the Court of Appeal may continue with a matter he was previously hearing as a Judge of the State High Court. He simply lacks the jurisdiction to do so as the constitution never conferred it.

1. THE DOCTRINE OF THE SUPREMACY OF THE CONSTITUTION (1999 AS AMENDED)

This doctrine postulates that the constitution is the supreme law of the land and all other statutory enactment of the National Assembly where it is inconsistent with the provisions of the constitution shall to the extent of its inconsistency be null and void. (See s. 1 (3) 1999 CFRN (As amended))

This doctrine has been affirmed in the case of FBN PLC v. T.S.A. INDUSTRIES LTD (2010) LPELR-1283 (SC) where the court pronounced on the nature and effect of the supremacy of the constitution and held that;

“By virtue of the provision of Section 1(3) of the 1999 Constitution , the doctrine of supremacy of the Constitution demands that if any law is inconsistent with the provision of the 1999 Constitution, the Constitution shall prevail and the other law shall to the extent of the inconsistency be void. “

Also, in ABACHA & ORS. v. FAWEHINMI (2000) LPELR-14 (SC), the court stated that;

“The Constitution is the supreme law of the land; it is the grundnorm. Its supremacy has never been called to question in ordinary circumstances. For avoidance of doubt, the 1979 Constitution stated categorically in its Chapter 1,   Section 1(1) as follows:

“1(1)    This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federation Republic of Nigeria.”

For purposes of clarity, its Section 1(3) goes further to state:

“1(3)    If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and other law shall to the extent of the inconsistency be void.”

The nature of this doctrine is that there is no other law which is above the constitution of Nigerian. It is immaterial that such law was enacted by the National Assembly and assented to by the President. Such law, in as much as it is not in tune or in line with what has been provided for by the constitution shall to the extent of such inconsistency be void. Such law cannot stand and should not be regarded or enforced by the courts.

In the instant situation, the provision of the S. 396 (7) ACJA which 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 purpose of concluding any partly heard criminal matter pending before him at the time of his elevation, and shall conclude the same within a reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of a Court of Appeal.” is in my humble view completely at par/variance with the provisions of Section 1 (1)& (3) of the constitution and according to the doctrine of the Supremacy of the constitution is null and void.

Section 1 (3) of the CFRN 1999 (As Amended) provides that;

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”

Thus, in the instant case, it is unconstitutional for a Judge of the High Court elevated to a Justice of the Court of Appeal to continue to preside over a criminal matter in the High Court as he is no longer a Judge of the High Court no longer has jurisdiction over matters in such court.

Going further, the constitution has provided for the composition/constitution of a State High Court under S. 273 of the constitution where it provides that;

“For the purpose of exercising any jurisdiction conferred upon it under this constitution or any law, a High Court of a State shall be duly constituted if it consists of at least one Judge of that Court”

Going by the above provision, a Justice of the court of Appeal is not a judge of the State High Court and as such does not have the jurisdiction to preside over any matter whether partly heard by him or not in that court. Any decision of a court lacking the prerequisite jurisdiction constitutes a nullity and no one should submit to such jurisdiction and cannot agree to confer such jurisdiction where the statute creating such court has not created such jurisdiction.

1. WHETHER INDEED S. 396 (7) ACJA IS INCONSISTENT WITH THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED)

Section 396 (7) of the ACJA provides that;

“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 partly heard criminal matter pending before him at the time of his elevation, and shall conclude the same within a reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of a Court of Appeal.”

And Section 1 (1) and (3) of the Constitution says;

“1(1)    This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federation Republic of Nigeria.”

For purposes of clarity, its Section 1(3) goes further to state:

“1(3)    If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and other law shall to the extent of the inconsistency be void.”

The constitution has conferred different jurisdictions upon the High Court of a State and the Court of Appeal and they are no way similar. While the State High has jurisdiction to hear Civil and Criminal matters, the Court of Appeal has amongst others the jurisdiction to hear appeals from the State High Court, Federal High Court, National industrial Court and so on.

The composition of a State High Court according to the constitution is at least a Judge of the Court and I have stated earlier on that a Justice of the Court of Appeal is not a Judge of the State High Court at least not stated so by the Constitutional provisions creating the Court of Appeal.

Thus, it is not proper for a Justice of the Court of Appeal to continue with a matter which he was handling prior to his elevation as a Justice of the Court of Appeal. Jurisdiction, where it is non-existent, cannot be conferred on oneself nor can parties agree to it.

In the instant case, in light of the provisions of S. 1 (1) & (3) of the constitution, the provisions of S. 396 (7) ACJA is inconsistent with the constitution and is to the extent of its inconsistency null and void.

CONCLUSION

In conclusion, having found that S. 396 (7) ACJA is inconsistent with the constitution, the said section should be expunged completely form the Act. It is my advise that where a Judge of a State High Court has been elevated to a higher office, any criminal matter that is being handled by him should be transferred to another trial Judge with concurrent jurisdiction as the former Judge prior to elevation and be allowed to commence de novo.

I completely agree with the submissions of the learned Senior Advocate that where a Judge has been elevated from the High Court to the Court of Appeal, any partly heard criminal matter by him should be allowed to commence de novo before another Judge with the requisite jurisdiction to hear same.

Benita Ayois a legal practitioner based in Lagos, Nigeria.