ACJA 2015: Elevation of a High Court Judge, Trial De Novo and the Rule in Ogbunyiya v. Okudo

One other innovation under the Administration of Criminal Justice Act, and which perhaps calls for review is the issue created under Section 396 (7), which seeks to prevent trial de novo in criminal cases upon the elevation of a High Court Judge to the Court of Appeal. The issue of having to recommence criminal proceedings once a presiding judge handling the case gets promoted has been highlighted as one of the main reasons for delay in criminal trials. In trying to nip the issue in the bud, Section 396 of the ACJA, 2015 has come to the rescue, albeit locking its horns with some settled positions of the law. In this post, I examine the provision of the section in line with the decision in Ogbunyiya v. Okudo and suggests for a review of the provision.




For clarity purposes, Section 396 (7) provides:

"(7) Notwithstanding the provision of any other law to the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any part heard criminal matte pending before him at the time of his elevation and shall conclude the same within a reasonable time:
Provided that this subsection shall not prevent him from assuming duty as a justice of the Court of Appeal."

The above provision in simple terms seeks to prevent trial de novo upon the elevation of a High Court Judge to the Court of Appeal and allows the same judge to conclude the criminal cases pending before him prior to the elevation. As laudable as it would seem, this position of the ACJA 2015 goes contrary to settled positions of the law.

First, the rule in Ogbunyiya v. Okudo (2001) FWLR (Pt. 72) 1987, a judgment delivered in 1979, is that once a High Court Judge is elevated to the Court of Appeal, he ceases to become a High Court Judge and any actions carried out by the judge in his capacity as a High Court judge after such elevation comes to nullity. The Supreme Court per Idigbe, JSC stated the position in the following words:

"From the foregoing observations, we are satisfied that (1) it was the intention of the Supreme Military Council as expressed in Exhibit SC(1) that (1) the appointment of Nnaemeka-Agu J. as a Judge of the Federal Court of Appeal should, and did, take effect from the 15thJune, 1977, and, (2) on that date (15thJune, 1977) he ceased to be a judge of the High Court of Anambra State, and (3) when, therefore, on the 17th day of June, 1977, he gave the judgment now on appeal, he did so without jurisdiction. Accordingly, the Court of Appeal erred in law in rejecting the contention of the appellants that the judgment in these proceedings is null and void."

The provision of section 396 (7) has therefore locked horns with this settled position of the law, more particularly when one construes the effects of the provision of Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which clearly separates the judicial powers of the Federation (Federal Courts, including the Court of Appeal) and judicial powers of the state (State Courts, including the High Court). It is argued that having been elevated to the Court of Appeal, the said High Court Judge cannot continue to sit as a High Court Judge, owing to the standard laid down under the constitution. Doing so will therefore make the judge assume a dual capacity which is not envisaged under the constitution. At best, before the provisions of Section 396 (7) of the ACJA, 2015 can be of help, a necessary amendment to the constitution will be required to allow a single judge to hold a dual capacity, a situation which is not advised as doing so will have far reaching consequences. It is therefore suggested that the provision of Section 396 under the ACJA, 2015 be reviewed towards a more constitution friendly position, or be done away with in totality.

One other argument against the provision of Section 396 (7) is that it threatens the basis of separation of powers under the constitution. It is well settled that issues concerning the judiciary as far as assigning of cases to judges, giving directives upon cases and the whole administration of judicial functions and powers are within the confines of the Judiciary alone. By legislating on the procedure to take upon elevation of a High Court Judge to the Court of Appeal, the ACJA is in a way encroaching upon the judicial powers.

Agreed, it is the duty of the legislature to make laws and correct wrongs in the society using the instrument of laws. This position however will be seen in the circumstance to be far reaching and more of a bid to intervene in affairs of the judiciary. A High Court Judge who has been elevated to the Court of Appeal would be acting in that dual capacity not envisaged under the constitution if this position of Section  396 (7) is allowed to remain. As more states follow the trend in adopting the ACJA, it is advised that these provisions be scrutinized to avoid the uncertainties it belies, more importantly as it has to do with criminal procedure.