by Femi Falana
On May 13, 2015, President Goodluck Jonathan signed the Administration of Criminal Justice Bill into law.
Both chambers of the national assembly had passed the bill to modernise our criminal justice system. In particular, the law has abolished stay of proceedings and interlocutory appeals by merging all preliminary objections with the substantive case in any criminal case instituted in a federal court in the country.
The revolutionary intervention of the law was occasioned by the unending trial of politically exposed persons in corruption cases.
In fact, the last straw that broke the camel’s back was the case of Mohammed Abacha v FRN, which had been stalled for 12 years on account of the preliminary objections raised and argued from the high court to the apex court by the defense counsel, Mr. J. B. Daudu SAN.
At the end of the “Israelite’s journey,” the Supreme Court ordered that the trial be commenced de novo at the federal capital territory high court. Having been completely frustrated in the circumstance, the federal government was compelled to discontinue Mr. Abacha’s corruption charge involving the theft of N664 billion under the pretext that the case would be “amicably” resolved!
Before then, the Lagos State government had been forced to abolish stay of proceedings in criminal trials following the prosecution of Major Hamza Al-Mustapha over the murder of Mrs. Kudirat Abiola.
The trial had lasted 13 years on account of several preliminary objections and interlocutory appeals that were pursued from the High Court to the Supreme Court. Contrary to the misleading view of many senior lawyers that the abolition of stay of proceedings in criminal trials is illegal it has been judicially decided that statutes that oust the jurisdiction of courts to stay proceedings are constitutionally valid. In FRN v Nwude (2006) 2 EFCCLR 149 at 161 it was held by Justice Oyewole J. (as he then was) that section 40 of the Economic and Financial Crimes Act, 2004 which abolished stay of proceedings is not an infraction of the powers of the court.
According to his lordship,”inherent powers of the court only come into play in the absence of express statutory provisions and the court then fills in the gap by invoking its inherent powers to do justice in a given case….the intention of the legislature in this instance is to remove impediments in the way of the administration of justice.” Similarly, in Ajiboye v FRN (2013) 17 WRN 127 at 145 the Court of Appeal (per Justice Ogbuniya JCA) struck out the application for stay of proceedings on the ground that it was incompetent “in the face of the sacrosanct prescription of section 40 of the Act which clearly ousted the jurisdiction of the court over it.”
It is trite in law that jurisdiction oxygenates all proceedings in our courts. Accordingly, the exercise of judicial powers by any court without jurisdiction is bound to end in a nullity, regardless of the industry invested in it. With the enactment of the AJCA, the suspension of criminal cases by all accused persons has been effectively stopped in Nigeria.
Therefore, any judge who orders a stay of proceedings in any criminal trial does so illegally and is liable to be sanctioned by the National Judicial Council. It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizarre manner.
Given the ouster clause contained in section 306 of the AJCA, the Code of Conduct Tribunal ought not to have delivered its ruling in respect of the preliminary objections filed by Dr. Saraki. The ruling should have been read together with the judgment after the conclusion of the trial. It was the premature ruling of the Tribunal which led to the filing of an interlocutory appeal in the matter.
Instead of declining jurisdiction to entertain the interlocutory appeal that has been abolished by the AJCA, the Court of Appeal ordered a suspension of the trial at the Code of Conduct Tribunal to await its decision. Although the Court of Appeal eventually dismissed the appeal the trial of the substantive case at the Code of Conduct Tribunal has been further halted by the Supreme Court which has granted another stay of proceedings pending the hearing of the interlocutory appeal filed before it by the accused person.
However, it is sad to note that in granting the order of stay of proceedings in the case the apex court ignored the provisions of sections 306 and 396 of the Administration of Criminal Justice Act, 2015. It was not a case of oversight or lack of knowledge of the existence of the AJCA on the part of the Court, but a deliberate judicial decision to turn back the hand of the clock in the ongoing battle against corruption and impunity in the land. Curiously, some senior lawyers have endorsed the blatant violation of the law in the matter.
I am disturbed that a progressive lawyer like Emeka Ngige SAN was reported to have justified the illegality of the order of stay of proceedings. No doubt, the prosecution and the defence counsel who are Senior Advocates of Nigeria cannot be exonerated in the mockery of the criminal justice system.
By arguing preliminary objections that have been merged with the substantive case the senior counsel involved in the diversionary legal rigmarole overlooked the relevant provisions of the AJCA. Similarly, the members of the Code of Conduct Tribunal and the Justices of the Appeal Court did not advert their minds to the combined effect of sections 306 and 396 of the AJCA.
In any case, one had expected the learned Justices of the Supreme Court to correct the litany of legal errors committed at the lower courts. But the errors were endorsed as the apex court decided to halt the trial without any legal justification whatsoever.
The counsel to the federal government, Mr. Rotimi Jacobs SAN was even boxed to a corner by the Court to the extent that he had to undertake not to proceed with the trial at the Code of Conduct Tribunal pending the determination of the interlocutory appeal!
As a creation of the law, the Supreme Court is bound by the law. So are the Justices of the Court. In Joseph Amashoma v The State (2011) 14 NWLR (pt 1268) 530, the Honourable Justice John Fabiyi held that “The appellant’s counsel should be reminded of the doctrine of Separation of Powers as enshrined in the 1999 Constitution. The Legislature is to enact law while it is the duty of the Judiciary to interpret the law as enacted….There is no escape route.”
In the instant case, there was no escape route. Yet, the Supreme Court discountenanced the tenet of separation of powers by the deliberate refusal to limit itself to the interpretation of the relevant provisions of the AJCA.
As the inherent powers of a Court cannot be invoked to supersede the extant provisions of a valid and subsisting legislation the Supreme Court ought to be challenged to justify the purported annulment of the clear and unambiguous provisions of the AJCA.
With profound respect to the revered members of the panel of the Court the order of stay of proceedings granted by them last week flies in the face of section 306 of the Administration of Criminal Justice Act, 2015 which provides that “An application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.”
Indeed, ex abundanti cautela, section 396 thereof further provides that all preliminary objections “shall be considered along with the substantive issues and a ruling shall thereon be made at the time of the delivery of judgment.”
Apart from abolishing stay of proceedings the AJCA has effectively banned interlocutory appeals in criminal trials.
Therefore, the controversial ruling of the Supreme Court should not be allowed to stand because of its far-reaching implications and negative impact on the administration of criminal justice in the country.
Since the ruling is binding on all other courts in line with the hallowed principle of stare decisis the Supreme Court should take advantage of the substantive appeal in the Saraki’s case to review its position with a view to confirming the abolition of stay of proceedings by section 306 of the AJCA. This clarification should be made, as soon as possible, in line with the letter and spirit of the AJCA.
Otherwise, every accused person will continue to file interlocutory appeals and proceed to ask for a stay of proceedings pending the determination of such appeals. The application will have to be granted as the hands of either the trial court or the Court of Appeal would have been tied by the erroneous decision of the Supreme Court in the case of Saraki v FRN.
The apex court is advised to distance itself from the antics of the influential agents of impunity in the legal profession who have resolved to frustrate the trial of corruption cases by filing cumbrous motions and frivolous preliminary objections designed to shield members of the ruling class from prosecution. Our judges should realize that the inglorious era of engaging in dilatory tactics in criminal trials by defence counsel has been consigned to the dustbin of history.
Femi Falana is a human rights activist and Senior Advocate of Nigeria (SAN).
The opinions expressed in this article are solely those of the author.