Cases are unnecessarily prolonged and defendants suffer long detention as their matters are constantly reassigned following the promotion of judges handling them, ENIOLA AKINKOUTU writes
Promotions are usually received with enthusiasm and joy because of the prestige attached to the new office or the increase in remuneration. This is usually the case when a judge is elevated from the High Court to the Court of Appeal.
However, while such elevations are celebrated and marked with fanfare by fortunate judges and their families, such promotions usually have bad consequences for defendants languishing in prison who by Nigerian law are still presumed innocent until proven otherwise.
Perhaps no one will understand this better than Hassan Aminu, a 34-year-old welder who was arrested by the Special Anti-Robbery Squad during a police raid in Abuja on October 8, 2017.
After spending 17 months in SARS, Aminu was eventually arraigned before Justice V.M Venda of the FCT High Court and detained in Kuje prison pending trial. However, Justice Venda soon retired and the case marked CR/234/18, hard to start afresh. The case file returned to the Chief Judge of the FCT High Court who assigned it to Justice P.O Affen. However, Justice Affen was elevated to the Appeal Court and the matter will now have to start de novo a second time. Aminu has now been in detention for three years while his case has yet to start.
For Nnamdi Ukandu and two others that were arrested by SARS in Abuja on May 30, 2018, the story is not that different. After spending five months in SARS detention due to a holding charge issued by a magistrate, they were all arraigned before Justice Adebukola Banjoko on January 29, 2019. Two witnesses had given testimony before Justice Banjoko was elevated to the Court of Appeal in 2021. The case will now have to start all over again.
Similarly, in 2014, John Osinachi was arraigned before Justice A.M Talba of the FCT High Court, Gudu, for armed robbery. In the case marked FCT/HC/CR/96/14, two prosecution witnesses were called. The defence closed its case on December 12, 2017. Judgment was reserved for March 26, 2018. However, before Justice Talba could deliver his judgment, he was elevated to the Court of Appeal, forcing the matter to start afresh. The matter was later reassigned to Justice J Hassan of the FCT High Court, Jabi and has failed to make any significant progress while Osinachi has remained in detention for the last seven years. The court has now adjourned the matter till January 25, 2022 for ruling on an application to strike out the charge and discharge the defendants since the prosecution has continually failed to show up.
Thousands affected
Several human rights lawyers representing accused persons informed The PUNCH that thousands of criminal cases nationwide are forced to start de novo because of the elevation or retirement of judges.
In 2021, no fewer than 18 High Court judges were elevated to the Court of Appeal. The 18 judges are Mohammed Danjuma (Grand Kadi, Niger State), Muhammad Sirajo (Plateau State High Court), Abdul-Azeez Waziri (Adamawa State High Court), Yusuf Bashir (Taraba State High Court), Usman Musale (FCT High Court), Ibrahim Jauro (Yobe State High Court) and Abba Mohammed (FCT High Court).
Others include Bature Gafai (Federal High Court, Awka); Danlami Senchi (FCT High Court), Mohammed Abubakar (Sokoto State High Court), Hassan Sule (Zamfara State High Court), Kenneth Amadi (Imo State High Court), Peter Affen (FCT High Court), Sybil Gbagi (Lagos State High Court), Olasunbo Goodluck (FCT High Court), Adebukola Banjoko (FCT High Court) Olabode Adegbehingbe (Ondo State High Court), and Bola Ademola (Ondo State High Court).
The implication is that the criminal cases being handled by all these judges would have to start afresh.
“Let us take Lagos for example. There is no judge in Lagos that doesn’t have at least 300 pending cases. So, if 18 judges are being elevated, you should be talking about thousands of cases being affected,” says human rights lawyer, Mr. Femi Falana (SAN)
Supreme Court weakens ACJA
In the past, when judges were elevated to the Court of Appeal, they were given fiat to conclude their cases at the trial court especially if those cases had gone far and witnesses had been called. This was done in line with Section 396(7) of the Administration of Criminal Justice Act.
However, in the case of Ude Jones Udeogu v FRN & Ors (Orji Kalu’s Case) the Supreme Court on May 8, 2020 nullified the Section 396(7) of ACJA which purports to empower a judge of the High Court who has been appointed to the Court of Appeal to continue to hear part-heard criminal cases.
The apex court held that by virtue of Section 238 of the constitution, the appointment of a Justice of the Court of Appeal takes effect from the date of appointment, and not the date of their inauguration prescribed by Section 290 of the constitution as (amended). The effect of this is that from the date of appointment of a person as a justice of the Court of Appeal from the High Court, such person ceases to be a Judge of the High Court and becomes a Justice of the Appeal Court. The necessary legal implication flowing from this is that any further judicial act that is carried out by such a person sitting as a Judge of the High Court from the date of appointment to the Court Of Appeal is devoid of legality, without jurisdiction, and is null and void. The implication is that all cases being handled by any judge that has been elevated must start afresh regardless of the nature or level of the case.
Overcrowded prisons
With thousands of cases being made to start afresh, the number of persons awaiting trial in several correctional centres is expected to continue to increase, prisons authorities say.
According to data published on the website of the Nigerian Correctional Service on November 15, 2021, a total of 70, 746 inmates are presently in correctional centres across the state of the federation including the Federal Capital Territory.
This is asides the 3,906 inmates that escaped from correctional centres in different parts of the country. Of the total number of inmates, 51, 218 which represent 70 per cent are awaiting trial while 19,528 inmates have been convicted, representing 30 per cent. About 50, 188 of those awaiting trials are male and 1030 are female.
The Spokesman for the Nigerian Correctional Service, Francis Enobore, told The PUNCH that any delay in court cases caused by elevation or retirement of judges, adds to the high number of persons awaiting trial.
He said since Nigerian law presumes that all persons are innocent until proven otherwise, it would be unjust to perpetually detain inmates for years based on prolonged trials.
The NCoS spokesman added, “Any alteration in the course of justice would translate immediately to inmates overstaying in incarceration. Whether the obstruction comes by way of judges being elevated or retirement that affects the free flow of cases, automatically, the person that will be on the receiving end will be the accused who is on trial and that will automatically translate to congestion of inmates in our custody.
“When inmates are kept indefinitely for years, just imagine if that person is innocent? Will you just tell the person sorry? How does such a person get justice?
Enobore further argued that there was a nexus between the high number of persons awaiting trial and the incessant prison breaks in recent times.
“If you look at the areas where we have had unfortunate incidents of jailbreak, they are always centres that have inmates far beyond their capacity. Secondly, they are always centres that have a large number of awaiting trial persons. Correctional centres are meant primarily for convicted persons.
“There is a direct nexus between the spate of attacks and the high number of awaiting trial persons. In some of the correctional centres where we had attacks, they broke the cells of persons awaiting trial while the cells housing people who have been convicted remained untouched. This means the target of these attackers is to free those awaiting trial,” he added.
Judicial bureaucracies
The Founder, Legal Access Foundation International, Chidi Dimgba, who is currently handling the cases of several indigent prisoners pro bono, described the incessant restarting of cases due to the retirement or elevation of judges as frustrating.
Dimgba also said some of the delays were caused by bureaucratic bottlenecks.
He said even when judges are promoted and their cases are expected to start afresh, the case file is returned to the chief judge and it takes several months before it is reassigned to a new judge.
“When we have situations where judges are elevated and matters have to start again, it means we are only paying lip service to the policy of prison decongestion. If we are serious about decongestion, then we have to look at this issue of judges’ elevation. Also, when a judge has been elevated and his cases are abandoned, it takes quite a while for the chief judge to reassign such matters. From my own experience, it takes several months because of administrative bottlenecks. In the meantime, prisoners are left to languish in jail,” Dimgba said.
He further stated that cases being made to start afresh put a strain on public funds.
“It is disheartening not only for the prisoner but for the defence counsel. It is also expensive for the state because this is taxpayers’ money that is being wasted,” he added.
Constitutional amendment to the rescue?
Following the Supreme Court judgment, many lawyers are of the opinion that only an alteration to the constitution can remedy the situation.
Dimgba, who also shares this view, said the constitution needed to be amended urgently so for the sake of justice.
“There needs to be a change in our laws now. I have seen cases where people who have been standing trial for years, coming from prison to the court regularly. Suddenly, a judge is elevated and after years of trial, the person has to start all over again. It is demoralising,” he said.
Also in a chat with our correspondent, Falana said, “A constitutional amendment needs to be made to incorporate the provisions of the ACJA. This will go a long way in solving the current problem,” says Falana.
In May 2021, a bill seeking to allow judges to preside over two courts simultaneously scaled second reading at the House of Representatives but only narrowly. The Constitution of the Federal Republic of Nigeria (Fifth Alteration) Bill, 2020, which proposes that a judge of the High Court who has been elevated to a higher court should be allowed to conclude cases already before him or her at the lower court has now been forwarded to the constitutional review committee.
The legislation is titled ‘A Bill for an Act to Alter the Constitution of the Federal Republic of Nigeria, Cap. C23, Laws of the Federation of Nigeria, 2004, to Provide for Quick Justice Dispensation and Completion of Criminal Matters Heard By a Judge of a High Court Before his Elevation to the Court of Appeal.’
The Chairman of the House Committee on Judiciary, Mr Onofiok Luke, who sponsored the bill, said, “It is a common practice where judges of the High Court get elevated to the Court of Appeal whenever there is a vacancy. When judges get elevated, criminal cases presided by them before they were elevated get stalled and, in fact, start de novo (afresh).”
Luke lamented that the decision of the Supreme Court to nullify the provisions of the ACJA has thrown up myriads of problems and has “sailed us back to a harbour of delay in criminal adjudication which we thought we had left.”
He, therefore, sought the support of lawmakers in passing the bill and kicking off the process to amend the constitution. The matter has remained at the committee for the past seven months. The constitutional amendment process was put in abeyance in favour of pressing issues like the 2022 budget proposal and the Electoral Act amendment bill.
With elections fast approaching and politicking already taking centre stage in favour of legislative work, there are fears that the constitutional review process may suffer.
But Falana adds that the solution goes beyond a constitutional amendment. He maintained that certain changes could be made administratively. He said for instance, judges who have six months left to retire should not be assigned fresh cases.
The activist further said some judges should be made to handle exclusively criminal matters so their attention is not divided while those who remain in detention perpetually due to the promotion of judges should be granted bail.
He added, “A constitutional amendment should be made to incorporate aspects of the ACJA so that cases would not have to start afresh. Also judges who have six months left to retire should not be given new cases. Sadly, there are some judges who are almost due for retirement that are still being given cases.
“The implication is that some of these cases would be made to start afresh. Persons whose cases have been adjourned sine die because of the elevation of judges should be granted bail because it is not their fault. Judges handling criminal cases should be handling criminal cases exclusively.”
Also speaking with newsmen, human rights lawyer, Mr. Ebun-Olu Adegboruwa (SAN), argued that a law could also be passed to put time limits to criminal cases just as electoral cases are given a 180-day deadline.
He said, “It is desirable that we have criminal cases concluded within special time the way legislators have fixed 180 days for treating election related cases.”
The senior advocate said judges could be allowed to finish up their cases before the announcement of their promotions as this would help prevent such cases from starting afresh.
“Judges who are to be elevated could be told informally that they will be promoted soon so that they can have an accelerated hearing of their cases especially when they have gone far in criminal cases involving corruption and other high profile cases,” Adegboruwa said.
On the issue of constitutional amendment, Adegboruwa said it would not make much of a difference because it would be clumsy for a judge to sit in two different courts at the same time.
“If we amend the constitution to allow elevated judges hear cases they have been hearing before, it will make a mess of that elevation because the challenge will be that he cannot be sitting in two courts at the same time. If he has been elevated, he is already in the Court of Appeal and they cannot come down to continue to function as a judge of the High Court,” he said.
Mr. Rotimi Jacobs (SAN), who is also a prosecutor for the Economic and Financial Crimes Commission, said fixing the problem goes beyond constitutional amendment but attitude.
Jacobs said for instance, a judge who is retiring within a year or six months should not be assigned new cases because such cases would never be concluded and would be made to start all over.
He said, “This thing has more to do with attitude. You know a judge is retiring next year and yet the CJ will assign to the judge cases that cannot be completed in three years. Why should new cases be assigned to a judge that is retiring in six months?
“Why should a judge who is about to retire have about 60 cases that are part-heard? It is an aberration. It is not only law but attitude is also a major issue. The government could also introduce a policy that a judge must conclude all pending cases before he or she is elevated. All these pending cases will be reduced. We are not serious.”
Jacobs said cases starting de novo also have negative consequences on the prosecution. He noted that fatigue could easily set in, witnesses would refuse to show up and such cases never reach a logical conclusion.
In a chat with newsmen, the Spokesman for the Chief Justice of Nigeria, Ahuraka Isah, said he did not know how many cases would be affected by the elevation of judges. He, however, said there was nothing anyone could do because the law had to be obeyed.
He said the best way to address the challenges emanating from the elevation of judges would be through a constitutional amendment which is already being done.
“We cannot stop judges from being elevated. But the process for constitutional amendment has already begun,” he said.