Thursday, 7 April 2016

Olayinka Aileru

The Administration of Criminal Justice Act 2015 seeks to revolutionise the administration of criminal justice in Nigeria. One of the objectives of the Act, as contained in Section 1, is to ensure speedy trials, and the efficient management of the criminal justice system in the country. The ACJA recognises the defects in our criminal justice system, one of which is the frequent delays which characterised criminal trials. The delays are mostly due in part to the manner in which lawyers often explore the loopholes in the law to frustrate trials usually by filing of frivolous applications and objections in court. The average time a criminal trial proceeding takes prior to the enactment of the Act is four to six years. Also, how much a trial can be delayed depends on the caliber of the lawyers involved, the status of the accused person and the nature of the offence charged.

The most common delay tactic is raising of preliminary objections by challenging the jurisdiction of the trial court, or the validity of charge itself based on some perceived defects (sometimes imaginary and illusory). The trial court will be forced to give a ruling on the objection one way or the other. Upon the ruling of the trial court, an appeal will quickly be filed at the Court of Appeal. Also depending on how smart the lawyer is, this may take another two years. In the meantime a stay of execution would have been granted stopping the continuation of the original proceedings by the trial court. After the judgement of the Court of Appeal on the objection, a subsequent appeal may be lodged at the Supreme Court which may take another two years before it is heard.

All the while that these would be happening, the accused would have been granted bail. Some of the key witnesses might have died or travelled. The investigating police officer, the case officer or the trial judge himself might have been transferred or retired from service. By the time the Supreme Court finally decides that the trial court should hear the case on the merit, the public would have forgotten all about the case, the prosecution would no longer be interested as other high profile cases would have come up in the interval. Lethargy soon sets in and the case would die a natural death.

These and many more are some of the ills that the ACJA 2015 seeks to correct. Of particular importance and relevance in addressing this problem is Section 396 of the ACJA. Section 396 effectively deals with the incessant delays caused by the raising of preliminary objections. The section provides that all preliminary objections are to be raised after the taking of plea by the accused persons. Unlike the old practice, Section 396 (2) provides that argument on a preliminary objection are to be taken along with the substantive issues, and the ruling thereon to be taken at the time of delivering final judgement.

The ordinary effect of this is that unlike before when ruling on a preliminary objection will be delivered immediately, or soon after argument before the consideration of the main issues, such ruling will now be adjourned till after the hearing of the case on the merits, and at the conclusion of trial. This has the implication of speeding up the trial process, because any appeal on the preliminary objection will be taken together with whatever appealable issues that may come up from the substantive issues considered at trial. This will effectively curb the going back and forth which characterised trial proceedings under the old dispensation. Another beauty of Section 396(2) is that the provision is mandatory on a trial court. The operative word is “shall” which imposes an obligation, and not a discretion.

The view is shared in some legal circles that the provision of Section 396(2) of the ACJA infringes on the 1999 Constitution particularly Section 294(1). Section 294(1) of the Constitution provides that every court established by the Constitution shall deliver its judgement within 90 days of final addresses and conclusion of evidence. According to the critics of Section 396 of the ACJA, when a trial court adjourns ruling on a preliminary objection till after the conclusion of the substantive issues, there is the possibility of not delivering the ruling within the 90 days window prescribed by the Constitution, as there is no guarantee that the entire trial proceedings will be concluded within 90 days.

While conceding that the possibility of the trial proceedings extending beyond 90 days is very real, it is submitted that the dangers of breaching the Constitution is at best fictional and illusory. In the first instance it is submitted that the provisions of Section 294(1) of the Constitution only applies to final judgements, and not to preliminary rulings in the course of a trial proceedings. Even if it conceded that Section 294(1) of the Constitution can be given a very wide interpretation to encompass interlocutory rulings, whatever effect that a long adjournment on a preliminary ruling may have on the Constitutional “90 days Rule” is obviated by the Constitution itself in Section 294(5).

Section 294 (5) provides that the decision of a court shall not be set aside on the ground of non-compliance with the 90 days rule prescribed by Section 294(1), unless it is shown that the failure to deliver the judgement within the 90 days occasioned a miscarriage of justice to the party complaining against the non-compliance. The Supreme Court in the case of Akoma v Osenwokwu (2014) 11 NWLR (Pt 1419) held that it is not enough for the party complaining to merely allege miscarriage of justice on appeal, he must show sufficient evidence of the acts of injustice suffered by him by the non-compliance with Section 294(1).  Thus, as long as no injustice is done to an accused person, it will be in order for a trial court to adjourn ruling on a preliminary objection till the time of delivery of final judgement after the conclusion of trial.

Apart from Section 396 of the ACJA, another revolutionary provision is Section 306 which abolished the practice of stay of trial proceedings pending the hearing of appeals on a preliminary point. As stated earlier, ruling on preliminary points or objections are to be taken at the time of delivery of judgement. However, it often happens that some judges who are still fixated on the old procedure deliver ruling on the preliminary objection before proceeding with the trial. This will in effect create an opportunity for appeal. The implication of Section 306 is that the appellate courts no longer have the power to order stay of proceedings at the trial court, pending the hearing of the interlocutory appeal. What this means in essence is that the trial court will be in order to continue with the trial proceedings notwithstanding the appeal filed.

The trial of the Senate President, Dr. Bukola Saraki, at the Code of Conduct Tribunal has offered the best opportunity for the judicial consideration of some of the innovative provisions of the ACJA. Sadly however, the appellate courts, for reasons best known to them, have been reluctant to give full effect to the provisions of the ACJA. Despite the provisions of Section 306 of the ACJA, the Supreme Court granted a stay of proceedings at the CCT pending the hearing of the appeal in which the Senate President challenged the jurisdiction of the CCT. With due respect to the learned justices of the Supreme Court, the decision granting stay of proceedings in the case has no basis under the Administration of Criminal Justice Act. One important point to bear in mind is that the exercise of appellate jurisdiction, including the powers of an appellate court, are statutory in nature, as there is no inherent right of appeal, or power to hear appeal. Thus the exercise of appellate power must always be in accordance with the provisions of the law.

The provision of Section 306 of the ACJA is a novel statutory provision which was enacted to address the mischief of using appeals to stall criminal trials in Nigeria. The provision in essence sought to remove the discretionary powers of Nigerian courts to grant stay of proceedings pending appeals in criminal trials. The inherent danger in the order granted by the Supreme Court is the fact that lower courts in Nigeria will feel bound by the decision based on the principle of stare decisis. This in essence will have the implication of rendering nugatory the efforts of the National Assembly in enacting Section 306 of the ACJA. It is thus hoped that the Supreme Court will in the not too distant future have another opportunity of giving proper effect to the provisions of Section 306 of the ACJA.

Aileru Olayinka is a legal practitioner, he writes from Lagos.

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