Udeogu vs Nigeria: A reminder on judicial reform through the legislative and executive arms

BY FAROUK OBISANYA

On 8 May, 2020, the Supreme of Court of Nigeria unanimously set aside the judgment convicting Ude Udeogu  of criminal charges and ordered that the case be reassigned to another judge of the Federal High Court for a fresh trial.  The decision was reached based on the unconstitutionality of Section 396(7) of the Administration of Criminal Justice Act (ACJA) which allowed for an High Court who has been elevated to the Court of Appeal to conclude any part-heard criminal matter pending before him at the time of his elevation and shall conclude same within a reasonable time, notwithstanding the provision of any other law to the contrary. In reaching the decision, the Supreme Court opined that the law, without amending the necessary extant constitutional provisions insubordinate the Constitution of the Federal Republic of Nigeria, 1999 viz Section 1(3) and Section 253.    

This decision irked a part of the public, citing sentiments and indicting the judiciary of corruption, thus stating that such a case is more often  decided in favour of the affluent at the expense of public interest.  The legal profession space did not go to sleep either. It was embroiled with arguments for and against, albeit given prior to the availability of the judgement to the general public. It was another debate time on technical justice and substantial justice. Of course, “technical is gone. The current vogue is substantial justice”. Dada v Dosumu (2006) 18 NWLR (Pt. 1010) 134. However, “substantial justice can only be attained not by bending the law by applying it as it is; not as it ought to be”. First Bank of Nigeria Plc & Ors v Alhaji Salamanu Maiwada & Ors (2013) 5 NWLR (Pt 1348) 444 SC. Also, the judgement was reviewed through various of judicial decision-making and canons of interpretation.

Whilst judgments cannot be protected from genuine scrutiny, it is important to understand that the primary function of the judiciary is to interpret laws and apply same to cases. Sir Thomas Taylor, Chief Justice of Manitoba once remarked: “I am not here to dispense justice. I am here to dispose of this case according to the law. Whether this is or is not justice is a question for the legislature to determine”. This quote above echoes that a judge cannot go outside the bounds of a legislation to determine justice, and it subtly identifies the role of the legislature in reaching a court decision. In essence, a Court may embark on judicial activism, but not swerve off the confines of extant law in raising its voice.

It is clear that the germane question for determination was whether the Judge of the Federal High Court could still sit on a matter after his elevation to the appellate court and oath-taking. Clearly therefore, the jurisdiction of the court was challenged. From a cursory look at Section 396(7) of the ACJA, one would conclude that a jurisprudential blunder did not arise. However, a painstaking critique of that law would agitate the mind and draw same to the Constitution – the foundational law where other laws derived their powers – where Section 1(3) states that “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”.

Assuming without conceding that the decision was reached per incuriam in Udeogu v FRN, bearing in mind socio-economic factors, and other theories of judicial decision-making, the begging question then is: how should the Supreme Court interpret the relevant extant laws? Should the Supreme Court have upheld Section 396(7) of the ACJA at the expense or bury the Constitution? Was the error committed at the trial court an irregularity or a fundamental defect? Was there a miscarriage of justice? The law is not swayed by sentiments.

If the purpose of the ACJA “is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim” – Section 1(1), it should be recalled that Section 1(1) of the CFRN stipulates that “the Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal republic of Nigeria”.

Section 396(7) of the ACJA is novel, and same reflects one of the resolutions of the National Conference in 2014 in Item 4(e) paragraph 6.9.2. at page 661, where it was proposed that “judges elevated to the higher bench should conclude their cases if evidence have been concluded to prevent such matters starting de novo except in cases of death or retirement of such a Judge”. Similarly, the objective was to ensure speedy dispensation of justice and prevent the triumph of legal technicalities over substantive justice. This proposal was expected to be made via necessary constitutional amendments. Was there a constitutional amendment to reflect it? The question points to the brilliant idea in the ACJA without a thorough review of the Constitution.  The firm principle on jurisdiction has been established in plethora cases. Udeogun v FRN does not pass the litmus test and same did not provide a challenge where the judicial precedents on jurisdiction could be reviewed.

It is noteworthy that no country advances without constant and adequate reforms. Unfortunately, the country’s legislature and executive arms makes it difficult for the judiciary to innovate in adjudication, rather battling with age long issues of law in the current times.

Against the backdrop of ceaseless demands by Nigerians for a national dialogue to discuss issues or problems that inhibit national progress or challenge national cohesion, there was a National Conference in 2014 chaired by Justice Idris L. Kutigi. The Conference was expected to proffer appropriate solutions that will strengthen national unity and consolidate democratic governance in Nigeria. Various challenges were identified and recommendations were made, highlighting reforms across sectors. Issues thronging the judiciary were looked into at the National Conference, with salient recommendations made.

With specific reference to the recommendations captured under the Law, Judiciary, Human Rights and Legal Reform by the National Conference in its 2014 Final Conference Report, it was resolved amongst others that: the Offices of the Attorney General of the Federation/State should be separated from that of the Minister/Commissioner of Justice; the concept of Plea Bargain should be abolished; the justiciability of socio-economic rights under the Fundamental Objectives and Directive Principles in Chapter 2 of the Constitution should be guaranteed and accorded the same rights as that of Human Rights; there should be established, the State Court of Appeal for each State to serve as the terminal Court for States on State matters except in cases of weighty Constitutional issues, civil liberties and matters of overriding public interest with the leave of the Supreme Court; the Court of Appeal should revert to Federal Court of Appeal to hear appeals from Federal Courts and Tribunals and general Court Marshals and shall be terminal Courts except in cases of weighty Constitutional matters, civil liberties and matters of overriding public interest with the leave of the Supreme Court.

Interestingly, the National Conference captured ways to expedite justice in Nigeria and access justice. The Conference resolved that: there should be unified Rules of Courts covering both civil and criminal procedures, so that their applications do not vary from Court to Court or State to State. This recommendation shall not be applicable in the Sharia and Customary legal systems; a new Section providing for the Chief Justice of Nigeria to set up a National Council on both Civil and Criminal Procedures should be inserted in the Constitution, to adopt and constantly update the comprehensive and unified Rules of Courts to cover the entire system; the adoption of the recommendations of Justice Uwais’ Electoral Reforms Committee that no candidate in an Election shall be sworn in or allowed to take over a position or Office after an election until all the election petition matters involving him or her are concluded, unless there is still 120 days to oath taking and matters before the Tribunal should be finished within 90 days; private prosecution should be enhanced; small Claim Courts should be established in the States; juvenile Courts should be established to take care of matters concerning children and minors; all preliminary objections and interlocutory matters should be taken together with the substantive matters; preliminary objections in Criminal and Civil trials should be taken together by the trial Court except where the Court thinks otherwise; the practice of seeking leave of Court in cases of mixed law and facts or facts alone, should be abolished; all cases from inferior Courts should terminate at the State Court of Appeal except in cases where issues of Constitutional significance, civil liberty and matters of public interest are involved; pre-action Notice should be abolished; Public Officers Protection Act should be repealed; and the requirement of locus standi in Public Interest Litigation should be abolished.

Indisputably, we cannot diminish the efforts of the judiciary through landmark judgments. For instance, the Supreme Court in Centre for Oil Pollution Watch v. NNPC (2019) 5 NWLR (Pt.1666) 518 expanded the scope of locus standi on environmental matters and held that Attorney-General is not only the proper person that is empowered to enforce the performance of a public duty or institute public interest litigation  Sadly, there is little the Judiciary can do. Since the conclusion of the Conference, neither the executive nor the legislature deemed it important to bring life to the Final Conference Report. Alterations have been made to the Constitution, but not to the extent of inserting new or amending existing provisions that aids access to justice. Unluckily for the Judiciary, the arm is not allowed and cannot swiftly bring these resolutions into action, thus giving itself a redefined look, and perhaps, renew the hope of a citizen that the court is the last hope of a common.

It is submitted that if current realities persist, the judiciary will record more criticisms in the days ahead. This comes with implications and will indirectly impact the economy of the country.

Obisanya is a lawyer at Rouk & Co. He can be reached at [email protected]