A DISSECTION OF SECTION 396(7) OF ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015: ATTEMPTING A NOBLE END THROUGH AN UNCONSTITUTIONAL PASSAGE. (2)

BY: JOHNMARY CHUKWUKASI JIDEOBI, Esq.*

This Pandora box of the doctrine of covering the field was reopened again in the celebrated case of INEC v. Musa (supra). In that case, the plaintiffs were associations seeking registration as political parties. They applied to the Independent National Electoral Commission for registration as a political party. Sections 221 and 222 of the Constitution expressly spell out the conditions to be fulfilled before a group is registered as a political party. This notwithstanding, the INEC, on the 17th day of May, 2002, released guidelines for the registration of political parties. The INEC purportedly acted under the powers conferred on it by various provisions of the Electoral Act, 2001. Being of the view that some guidelines (impugned guidelines) were inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, relating to the registration of political parties and that they should not be made to comply with the guidelines, the Plaintiffs commenced the proceedings by Originating Summons whereby they sought, among other things, declarations of invalidity of those impugned guidelines and also Sections 74(2) (g) and (b), 74 (6), 77(6), 78(2) (b) and 79 (2) (c) of the Electoral Act, 2001.

The parties fought the matter all the way to the Supreme Court. At the Supreme Court, a full panel of seven Justices presided over by the then Chief Justice of Nigeria (Uwais, C.J.N) was constituted to thrash out the salient Constitutional issues that came up for the resolution of that Court. After putting the salient issues in the Appeal in proper perspective, My Lord Justice Ayoola, J.S.C. who wrote the Leading Judgment (in which the other six Justices concurred) contributed this effulgent passage which we shall most humbly repeat as follows;

“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 avoid.”

I take it as my starting point some interrelated propositions which flow from the acknowledged supremacy of the Constitution and by which the validity of the impugned provisions will be tested. First, all powers, legislative, executive, judicial, must ultimately be traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised, it is invalid to the extent of such inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those conditions in any way, directly or indirectly, unless, of course the Constitution itself as an attribute of its supremacy expressly so authorised.

The legislative power of the National Assembly consists of the power to make laws for the peace and order of the Federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part 1 of the second schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the concurrent legislative list set out in the first column of part 11 of the second schedule to the Constitution to the extent prescribed in the second column; with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
Although the Constitution does not state that an Act of the National Assembly cannot duplicate the provision of the Constitution, by judicial interpretation, verging on policy, the consequence of such duplication has been variously described as “inoperative”, “in abeyance”, “suspended”. (See A-G Ogun State v. A-G Federation (1982) NSCC 1 at pp 11, 27-29, 35.)

Howsoever it is described, where the Constitution has covered the field as to the law governing any conduct, the provisions of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have “covered the field” where it has expressly reserved to the National Assembly or any other legislative body the power to expand or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislative in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, Section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted.”

On the authority of the foregoing exhaustive reasoning, we therefore hold the unwavering view that the National Assembly lacks the competence to modify the Constitutional provision relating to the ‘constitution’ of the High Court by way of an Act such as Section 396(7) of ACJA, 2015, the subject matter of our consideration.

The other side of the coin which must necessarily be examined for the purpose of turning the full circle, is the implication of a Court of Appeal Justice sitting in the High Court to perform the functions of the office of a High Court Judge. This now reopens the unending thorny issue of jurisdiction. There is no gainsaying the fact that tons of textbooks and barrels of judicial ink have flowed in expounding the concept of jurisdiction especially in Nigerian jurisprudence. One of the ground rules eventuating from such numerous and unending academic enterprise is that jurisdiction is compartmentalized into the following;

- Territorial jurisdiction
- Subject-matter jurisdiction; and
- Compositional jurisdiction

In the very old and often-cited case of Madukolu v. Nkemdilim (1962) NSCC Volume 2, 374 at pages 379-380, the Federal Supreme Court, per Bairamian, F.J., delimited the contours of a court’s jurisdiction in this now venerable passage;

“Before discussing those portions of the record, I shall make observations on jurisdiction and the competence of a court. Put briefly, a Court competent when-
(a) It is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or another; and
(b) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
(c) The case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of its jurisdiction.”
Not too long ago, a full panel of the Supreme Court had cause to reiterate the determinants of a court’s jurisdiction in the case of Elelu-Habeeb v. AGF (2012) 13 N.W.L.R. (Pt. 1318)S.C. 423 at pages 472-473 wherein the case of Madukolom v. Nkemdilim (supra) was referred to and followed.

It is now crystal clear from the above that if Section 396(7) of the ACJA, 2015 is allowed to stand, that is if a Court of Appeal Justice is allowed to sit in the High Court as a High Court Judge, such a court would be robbed of jurisdiction (for improper constitution) and caught in the intricate web of the first arm of the theory of determinants of jurisdiction, postulated in the case of Madukolom v. Nkemdilim (supra), which is that the Court must be properly constituted as regards members and qualifications of members of the bench, and no member is disqualified for any reason.

It goes without saying therefore, that since the Constitution has clearly stated that a High Court can only be properly constituted when at least one Judge of that court is sitting, contrariwise, the High Court cannot be said to be properly constituted if it is composed of a Court of Appeal Justice who is clearly outside the widest contemplation of the Constitution and its framers as it is a settled canon of interpretation that the express mention of one thing equals the express exclusion of the other ‘expressio unus et exclussio alterius’.

When and if therefore such an Appeal Court Justice sits in the High Court (be it the High Court of the Federal Capital Territory or the Federal High Court), such a court possesses no competence and requisite jurisdiction.

This now raises the question of the consequences of the judgment flowing from a Court/Judge acting without jurisdiction. A dispassionate consideration of the case of Ogbuinyinya & Ors v. Okudo & Ors (1979) 12 NSCC 77 will efficiently answer this fundamental question. The summary of the facts of the case is that the Respondents (people of Aboh Village Ogidi) in 1958, filed their claims for title to land at Aboh in Ogidi, damages for trespass thereon and injunction in the High Court of Onitsha in the former Eastern Nigeria (a part of which is now Anambra State). After a chequered history in the wake of the Nigerian Civil War and the creation of States, the suit was eventually heard by Nnaemeka-Agu, J. who after listening to the address of Counsel on both sides on the 13th day of June, 1977, adjourned the matter to 17th June, 1977, when he duly delivered judgment. Sometime prior to the delivery of this judgment, Nnaemeka-Agu J. was appointed a Judge of the Federal Court of Appeal with effect from the 15th day of June, 1977.

This means that the appointment of Nnaemeka-Agu J. as a Judge of the Federal Court of Appeal was made effective from the 15th day of June, 1977, that is two days prior to the delivery of the judgment from which the appellants have appealed. The contention of the appellants before the Supreme Court, as they did in the Court of Appeal, was that that the judgment of the High Court of Anambra State in Suit no: 0/71/58 is null and void the same having been delivered by the Learned Judge when he had no jurisdiction to do so. After a systematic analysis of the gamut of robust arguments submitted before the Court, Idigbe, J.S.C. (as he then was and now of blessed memory), who wrote the Leading judgment for the Supreme Court, upheld this contention of the appellants consequent upon which he entered an order allowing the appeal and further ordered that the matter be remitted to the High Court of Anambra State for de novo trial.

This now dovetails into the consequences of parties shutting their eyes to the issue of the jurisdiction (especially compositional jurisdiction) of the court before whom they approach for the ventilation of their grievances for adjudication. Just recently in 2012, jurisdiction was very aptly defined by the Nigerian Supreme Court, per Rhodes-Vivour, J.S.C., as “the heart and soul” of a suit in the case of Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) S.C. 55 at page 83 where it is stated thus;

“The issue of jurisdiction is fundamental in any suit. It is the heart and soul of a suit. It is a court’s authority or power to hear an issue and/or the suit. Once a court lacks the jurisdiction to hear a suit and it goes ahead to hear the suit as if it had jurisdiction, no matter how well the suit was decided the proceedings and judgment would amount to a nullity. See Bronik Motors Ltd & Ors v. Wema Bank Ltd. (1983) 1 SCNLR P. 296; Okoya v. Santilli (1990) 2 NWLR (Pt. 131) p. 172; A-G. Federation v. Sode (1990) 1 NWLR (Pt. 128) p. 500; Osafile v. Odi (No1. 1) (1990) 3 NWLR (Pt. 137) p. 130

Jurisdiction to hear a suit is a threshold matter. Once raised, it must be heard first and decided quickly. It is so important that it can be raised at any time in the trial court, on appeal, suo motu, provided parties are heard, and in this court for the first time. See Usman Dan Fodio University v. Kraus Thompson Organisation (Nig.) Ltd. (2001) 15 N.W.L.R. (Pt. 736) p. 305; Oloriedo v. Oyebi (1984) 1 SCNLR P. 390; Ezomo v. Oyakhire (1985) 2 SC P. 260; (1985) 1 NWLR (Pt. 2) 195.
In Madukolum v. Nkemdilim (1962) vol. 2 NSCC P. 374; (1962) 2 SCNCLR 341, this Court made some observations on jurisdiction and competence of a Court to hear a case. They are good guides in determining jurisdiction.”

To be continued..........................

Na so....