Femi Falana
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.
Abacha v FRN
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.
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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.”
Ajiboye v FRN
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.
The tribunal ruling
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 Bukola 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.
Read full text on Vanguard.
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