By Abubakar D. Sani, Esq.

INTRODUCTION

The relief which greeted the enactment by the National Assembly of the Administration of Criminal Justice Act 2015 has been tempered only by its limited scope in terms of courts: it is only enforceable in Federal courts as listed in the Constitution. However, I believe that a more fundamental concern is that, to the extent the law purports to regulate the practice and procedure of those courts in criminal trials, it might be unconstitutional. This is because, as I shall presently show, the National Assembly is incompetent, under the Constitution, to enact such adjectival criminal legislation, because the same Constitution has specifically conferred that power on the heads of the aforesaid Federal Courts. But, first, an . . .

OVERVIEW

The National Assembly derives its authority to enact adjectival statutes from Item 68 of the Exclusive Legislative List of the Constitution read along with Paragraph 2(b) of Part III of the 2nd Schedule thereto. Whilst the first empowers the Assembly to make laws on anything that is incidental or supplemental to any of the 67-odd substantive subject matters in the Exclusive Legislative List, the second defines such incidental or supplementary matters to include “the practice and procedure of courts of law”. What, then, is practice and procedure?

Meaning of Practice and Procedure

According to the online source https://legal-dictionary.thefreedictionary.com, “Rules of practice (are) certain orders made by the courts for the purpose of regulating the practice of members of the bar and others.” Another source, https://www.lexico.com defines ‘Practice’ simpliciter as, inter alia, as “an established method of legal procedure”, and, “the customary habitual or expected procedure or way of doing something”. As to the difference between ‘practice’ and ‘procedure’ it appears that it depends on the particular variant of either term employed in any given case.

As nouns, the online source http://wikidiff.com states that ‘practice’ means, inter alia, “the form, manner, and order of conducting and carrying on suits and prosecutions through their various stages, according to the principles of law and the rules laid down by the courts”. The same source describes the noun variant of ‘procedure’ as, inter alia, “the steps taken in an action or other legal proceeding”. It is obvious that it is the noun variant (as opposed to the verb form) of both terms that are applicable in the context in which they are used in the Constitution. Unfortunately, neither term is defined in the Constitution (or even the Interpretation Act). Accordingly, their ordinary grammatical meanings referenced above will have to suffice.

Judicial Power over Practice and Procedure

The 1999 Constitution has specifically conferred the power to enact rules of practice and procedure on the heads of both Federal and State courts. Examples of such provisions include the following:

Section 236 (the Supreme Court; by the Chief Justice of Nigeria, subject to an Act of the National Assembly); Section 248 (the Court of Appeal; by the President of that Court, subject to an Act of the National Assembly); Section 254 (the Federal High Court; by the Chief Judge of that court, subject to an Act of the National Assembly); Section 254F (the National Industrial Court; by the President of that court, subject to an Act of the National Assembly); Section 259 (the High Court of the Federal Capital Territory; by the Chief Judge of that Court, subject to an Act of the National Assembly); Section 264 (the Sharia Court of Appeal of the Federal Capital Territory; by the Grand Kadi of that Court, subject to an Act of the National Assembly); Section 269 (the Customary Court of Appeal of the Federal Capital Territory; made by the President of that court, subject to an Act of the National Assembly); Sections 274, 279 and 284 (the High Courts, Sharia and Customary Courts of Appeal of a State; by the Chief Judge, Grand Kadi and President of those courts, respectively, subject to laws made by the State Houses of Assembly).

Is ACJA Valid?

This is the crucial question. Before answering that question, however, we have to understand the purport of the Act. There is no better place to find this than in Section 1(1) of the law, which declares that its “purpose 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”. For good measure, the Act specifically repeals (in Section 493) certain pre-existing statutes which deal with practice and procedure in criminal matters, prosecutions and their aftermath. These include the Criminal Procedure Act, the Criminal Procedure (Northern States) Act and the Administration of Justice Commission Act. The former, in particular, i.e., the CPA was applicable in the Federal High Court and the National Industrial Court prior to the enactment of ACJA. See Section 254F(2) of the Constitution.

To the poser as to the validity or otherwise of ACJA, I believe that the answer is somewhat nuanced, lest we be guilty of over-generalization. Suffice it to say that, in my view, those provisions of the Act which deal with the practice and procedure as defined above ought to have been enacted by the heads of the relevant federal courts, and not directly by the National Assembly – as is the case. My belief is anchored on the trite principle of law that special things derogate from general things – expressed in Latin as ‘specialibus generalia derogant’. As applied in legislative and constitutional interpretation, this means that: “where a special provision is made to govern a particular subject matter, it is excluded from the operation of any general provision”: ATTORNEY-GENERAL OF THE FEDERATION vs. ABUBAKAR (2007) All FWLR pt. 375 pg. 405 @ 524, SC: GOVERNMENT OF KADUNA STATE vs. KAGOMA (1982) 6 S.C.87 @ 107.

In the specific context of the powers of the National Assembly to regulate practice and procedure of courts of law, while I concede that these appear to be conferred by a combined reading of Item 68 of the Exclusive Legislative List and Paragraph 2(a) of Part III of the 2nd Schedule to the Constitution, I, however, hasten to add that these are general provisions which deal with any matter that is incidental or supplementary to any of the 67 substantive items in the Exclusive Legislative List. In other words, they lack any life of their own, but are only activated by the enactment of a law on any of the 67 preceding substantive items on the Exclusive List.

By contrast, the Constitution specifically confers on the heads of the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the Sharia Court Appeal, of the FCT the Customary Court of Appeal of the FCT and the High Court of the FCT, the power and the right of enact rules of practice and procedure applicable in both civil and criminal trials in those courts. It believe the only logical inference from this is that the makers of the Constitution intended to confer that function exclusively on the heads of those courts.

I submit that to construe those provisions otherwise would be to suggest that the Constitution conferred that right on the heads of the aforesaid courts with one hand, and took it away with the other, i.e, Item 68 and Paragraph 2(a) of Part III of its 2nd Schedule as aforesaid. It is trite law that no law or Constitution-maker will be pressured to have done that: OSADEBAY vs. ATT-GEN. of BENDEL STATE (1991) 1 NWLR pt. 169 pg. 525 S.C.; ATT-GEN. of THE FED. vs ABUBAKAR, supra, @ pg 472; S.C.

CONCLUSION

Beyond the provisions of ACJA which deal with the role of the Police in the administration of criminal justice, the vast majority of its prescriptions pertain to the courts. To the extent that the National Assembly has stepped in to usurp the functions which the Constitution specifically conferred on the heads of those courts in terms of adjectival law, I believe a plausible case can be made for invalidating the affected provisions.

If and when such a challenge is made, the dictum of the Court of Appeal in AMASIKE vs. REGISTRAR-GENERAL OF THE CORPORATE AFFAIRS COMMISSION (2005) LCN/1769, might prove apposite. In that case, the Court opined that: “where a person, body or authority claims to have acted pursuant to a power granted under a statute, such a person, body or authority must justify the act, if challenged, by showing that the statute applied in the circumstances, and that he or if was empowered to act under it.” In the case of ACJA, that body or authority would be the National Assembly vis-à-vis the Constitution.

Abubakar D. Sani, Esq. 5th February, 2022