Administration of Criminal Justice Act does not contradict the constitution, says Shasore
Former attorney general and commissioner for justice, Lagos State, Mr. Olasupo Shasore (SAN) is the senior partner at Africa Law Practice (ALP) Nigeria. He is a member of an alliance of law firms across Africa. Former member, Body of Benchers of Nigeria and chairman, Law Reform Commission Lagos State. He shares his opinion on myriads of legal topics as well as the latest Supreme Court judgment in respect of Orji Uzor Kalu and others, in this interview with JOSEPH ONYEKWERE and SUNDAY AIKULOLA.
The Supreme Court in the case of senator Orji Uzor Kalu and others has set aside the conviction by declaring section 396(7) of the Administration of Criminal Justice Act (ACJA) unconstitutional. What do you think about the decision?
I am not aware that the court declared the provision of the ACJA unconstitutional. It may well be in any event it appears, the chosen interpretation that commentators are ascribing. But whatever the actual wording of the decision is, it still bears the need for extensive commentary. The central issue in the case “UDEOGU v FRN” or “The Orji Kalu case” is whether a judge elevated to the Court of Appeal while for all intents is no longer of the High Court, can conduct or return to proceedings to dispose of such part heard matters. In fact, the Supreme Court framed it as “on what constitutional authority does either the National Assembly or the President of the Court of Appeal stand to grant this ‘dispensation’ to the Honourable, M. B. Idris, JCA to continue to act as a Judge of the Federal High Court after he had ceased to be a judge of the Federal High Court upon his elevation to the Court of Appeal?” The question as framed was to say that the power of a judge comes from the constitution. If that was the case, there would have been no need to consider all the statutes that operated to affect the exercise of that power and there indeed would be no use in having the various laws of the courts in the country. As I understand it, the Supreme Court relied on the ‘effect’ of its decision in OGBUNYINYA & ORS v. OKUDO & ORS where the judgment of Nnameka-Agu JCA, who had been elevated to the Supreme Court at the time he read the judgment at the Court of Appeal, was set aside.
In Orji Kalu’s case, Justice Mohammed Idris was elevated to the court of appeal and while there, the President of the Court of Appeal issued a fiat to him pursuant to Section 369 (7) of the ACJA 2015 to continue the trial of former Governor Orji Uzor Kalu, following the written request of Orji Kalu’s counsel – this point is not often reported. Section 396 (7) of the ACJA says: ‘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 matter 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’. This provision of the law was passed by the National Assembly exercising the sovereign authority of the Nigerian people to ensure that the machinery of justice is not stalled. It is in character of statutes enacted so that expediency is not sacrificed for technicalities, that the purpose of the law being justice is not deprived of its ultimate goal of the pursuit of the truth. Section 253 of the same constitution states that “The Federal High Court shall be duly constituted if it consists of at least one judge of that court”. Even after just browsing the full text of the judgment, it naturally appears the would be contest between these provisions was considered. The Supreme Court has taken the view that the power under Section 397 (7) of the ACJA is already provided for in the Federal High Court Act, therefore: “The President of the Court of Appeal is not empowered to share that statutory function with the Chief Judge of the Federal High Court”
This flies in the face of ACJA itself that says notwithstanding any other law. Does it presuppose that the constitution is stuck in time?
In order to shut out ACJA entirely the court came to the view that ACJA contradicts the constitution! Meaning that once the constitution had declared that a court is constituted by a judge of that court, it meant that no law could empower a judge or any other appointee to serve as a judge of that court or to serve as if he was a judge of that court. This is a device called ‘legal fiction’, which we are – all lawyers – well accustomed to. But to achieve the knock out of ACJA – the constitution has to be stuck in time; the constitution cannot broach or imagine any amplification for any reason whatsoever, the constitution will have to work to serve the law alone and not the purpose of society. I think not. This cannot, ought not, and is not the case. On the contrary, the Constitution is actually always looking forward. I can only come to the conclusion that such a living organic ‘grail’ such as the constitution requires interpretation as advised by the court in Agbakoba v. SSS  6 NWLR (Part 351) 475 per Ayoola JCA (as he then was) “the Constitution is an organic document which must be treated as speaking from time to time”. This is consistent with the policy of the Supreme Court in AG Ondo State v AG Federation where the court confirmed the need for a purposive interpretation of the constitution.
Both approaches would lead anyone interested in stable and predictable judicial landscape where the rule of law is consistent, to apply the constitution as being able to see section 396 of ACJA as permitting the Judex to act as a judge of the Federal High Court for a specified purpose and allow both the constitution and the law to achieve their purpose and not the purpose of technical outcomes that offend the common man’s sense of justice. As a society, we simply cannot afford the perception that literal approaches to law and justice create in the hearts and minds of the people. As far back as 1970s and 1980s many common law countries, Nigeria included, have steered the compass of justice from technicalities to substantive justice. And of immense importance, shifted the interpretation approach from literal to purposive. In UK, distinguished minds such as Lord Diplock drew a clear distinction between the “literal approach” and the “purposive approach” and adopted the latter in Kammins v. Zenith Investments Ltd . The House of Lords, of that day (Wilberforce, Diplock, Reid, Dilhourne) subscribed to the view that: “Faced with glaring injustice, the judges are, it is said, impotent, incapable and sterile. Not so with us in this court. The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the “purposive approach” …. In all cases now in the interpretation of statutes we adopt such a construction as will “promote the general legislative purpose” underlying the provision. It is no longer necessary for the judges to wring their hands and say: “there is nothing we can do about it”.
Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what Parliament would have done. Commentary on this Orji Kalu case gives one the opportunity to comment on the larger broader purpose of the justice sector supporting the needs and expectations of society. The positions referred to above are equally expressive of Nigerian jurisprudence and its great minds. Idigbe JSC said in Adesanya v President (1981): ‘Accordingly, where the question is whether the constitution has used an expression in the wider or narrower sense, the court should always lean where the justice of the case so demands to the broader interpretation unless there is something in the context or in the rest of the constitution to indicate that the narrower interpretation will best carry out its objects and purpose’ You ask, do the words ‘judge of that court’ in section 253 of the constitution necessarily exclude the possibility of accommodating ACJA where it speaks of: ‘…dispensation to continue to sit as a High Court Judge only for the purpose..’ Does any approach that is not purposive; that does not conciliate these provisions carry out the purpose of both the Act and the Constitution? Which is that as long as the judge has the power, he is a judge and that does not cease, all possibility to do justice; because the exercise of the power comes from a statute and not the constitution? Eso JSC in his text “Constitution: Interpretation and Application” admonished: “To the courts, it is substantial justice that is sought in the constitution and not technical justice which, when microscopically examined, concludes with no justice”.
This is because the constitution is actually the mechanism under which laws like ACJA are made. The ‘constitution is not a mere law that declares what the law is.’ It is also important to remember that commentary from the Orji Kalu’s decision cites OGBUNYINYA & ORS v. OKUDO & ORS (1979-1981) 12 NSCC as judicial precedent that the court in Orji Kalu follows. The Okudo court was called upon to consider section 128 of the 1963 constitution. It is good to note that Section 290 of the 1999 constitution is not much different from Section 254 of the 1979 constitution. The Orji Kalu Court would have had to find that section 253 of the 1999 constitution I have referred to above notwithstanding the oath of judicial office taken to perform functions of a justice of the court of appeal pursuant to section 290 of the 1999 constitution, barred Justice Idris from acting as a judge of the Federal High Court. I have already observed that Okudo as binding authority could not have been judicial precedent worthy to rely on to arrive at that conclusion. This is for no other reason than the important fact that Section 396 of the ACJA was not before the Okudo court in 1995. However, today the President of the Court of Appeal has (at least before the Orji Kalu decision) the power to give fiat, which would involve the oath and authority to serve in a capacity no different from serving on a Tribunal. This is a distinguishing factor that makes the application of OGBUNYINYA & ORS v. OKUDO & ORS to Orji Kalu case untenable. This was the approach that the court through Ayoola JCA (as then) adopted in Castro Nigeria Ltd v Sadiq Motors (unreported of 26 April 1995), where the court considered similar situation of an elevated judge, but was of the opinion that had the statutes applicable differed, the results would have been different. The Orji Kalu’s case could have benefited from that approach.
In this Orji Kalu case, I haven’t heard an allegation of a miscarriage of justice but merely the technical matter of the colour of the trimmings on the judges silk robes. I have seen commentary framing the view that the judge lacked jurisdiction. Jurisdiction and its application in Nigerian jurisprudence is a most wicked contrivance that has been used to wreck havoc all over the pages of our law reports. It is inconceivable that the reading of S. 396 can be said to result in the court not having jurisdiction when the very purpose of the section was to restore the judge to that office. Again lawyers who have built careers on studious use of preliminary objections to frustrate cases do not know the difference between judicial power and jurisdiction. I do not see that the ends of justice have been served by this Orji Kalu decision. I note the prosecution will in all likelihood start all over again on the same facts, but now with the attendant costs and hardship. This too could have been avoided.
Due to the outbreak of the COVID-19 pandemic, Lagos State Judiciary has issued Practice Direction using technology for remote case hearings. How would you describe this development and what impact will it have on justice administration?
I think it will have a salutary effect. Reforming the justice delivery service in Nigeria should be a priority for any stakeholder or Nigerian. We are challenged in so many ways that the machinery of justice cannot afford to cease even in this present crises. I wholeheartedly welcome the Practice Directions proposed by the Honorable the Chief Judge of Lagos State, Mr. Justice Kazeem Alogba. Hopefully, it will occupy its rightful place where not just urgency but circumstances warrant the use of virtual hearings and open the door for other innovative use of technology in the justice sector. I am an active member of Justice Reform Project, an independent group of stakeholders committed to seeing reform in this sector and we are actively pursuing other ways of making the service of justice more responsive to the needs of the country.
In what ways would the emergence of COVID-19 redefine the law practice in Nigeria, going forward?
I have long held that the profession has been in need of change. Amongst the leading professions, I hazard a guess that we have been the least responsive to change. Vested interests and the obsession with tradition have long stood in our way. The insistence on seniority at the alter of merit, entitlement in place of competence, family ties promoted above industry and excellence have been abysmal of recent. So, as the saying goes ‘never waste a good crises’. This is the opportunity for the profession to get the paradigm shift. Law and justice are services not physical locations. Law firms will learn that bigger is not necessarily better, cost and client will drive success and technology will be the enabler. It’s an opportune crossroad.
As a member of the Justice Reform Project, also known as G-20 SANs, what really are the goals of the JRP and what has the group been doing in furtherance of its objectives?
First of all, Justice Reform Project (JRP) is a registered not for profit public-spirited organization of a cross-section of Nigerians. It is not “G20 SANs” or any other nickname. We are constituted with passion around the simple idea that our society cannot progress unless institutions, which administer justice operate with transparency, integrity and efficiency exemplified across the board as well as their obligation to serve the public. Its membership reflects the diversity of the Nigerian nation and the nuanced character of stakeholder interests. JRP’s mission is to activate actors and stakeholders (including the public and other users as well as the legal profession itself) within the system of justice to transform the culture, values, ethics and quality of justice delivery in Nigeria. We believe certain factors frustrate ethical, efficient and effective justice delivery: an entrenched and pervasive culture of mediocrity; a lack of attention to the justice sector.
Back in July 2019, JRP hosted a well-attended public event. “A Public Discourse on Justice Delivery in Nigeria” in Abuja. The event announced JRP’s plans to the general public, and provided a platform for subsequent discussions with major stakeholders. In addition, the JRP has, on its own and in collaboration with partner organisations, recently organized two virtual events. The first was the JRP workshop, which discussed the Administration of Civil Justice Model Law and the Remote Hearings in Courts, which held on April 16, 2020, and the second and most recent was the Ogun State Civil Justice Virtual Workshop which was organised in collaboration with the Ogun State Ministry of Justice and CRID- LawNet, which held on April 22, 2020. JRP has established partnerships for justice sector reform with Integrity Organisation Gte, the United Nations Office on Drugs and Crime (UNODC) and the Chartered Institute of Bankers Nigeria Gte, amongst others.
You mentioned remote hearings. It is understood that remote hearings will face objections considering section 36 (6) of the constitution and the need for proceedings to be held in public. Proceedings held through virtual technology are not open to the public as of right and therefore it’s not a public hearing. What is the way out?
You are right. Section 36(3) of the constitution provides that proceedings ‘shall be held in public’. And there is nothing in the nature of virtual proceedings that militates against this. The public does have a right to attend virtual hearings, once they are advertised on the cause lists the way the physical hearings are. The public can enter in numbers, using the comparative objections of hearings in chambers and in open courtrooms as being in public as of right and not to the public. The Supreme Court adopted and restated its pronouncement in Oviasu v. Oviasu (1973) NSCC as it relates to public nature of a hearing venue in cases in chambers. But more importantly, in Oyeyipo v. Oyinoye (1987) LPELR-2883 (SC), the Supreme Court noted that even a trial in chambers does not necessarily imply a secret trial and it may be public if members of the public are not excluded from the trial. The court per Obaseki JSC stated as follows: “When the Court sits in chambers, all that it means is that the judges of the court are transacting the business of the court in chambers instead of open court (see Hartmont v. Foster (1881) 8 QBD 82, 84). It does not mean that the court is not sitting in public.
A court can sit in open court and yet decide to exclude members of the public other than the parties or their legal representatives from the hearing in exercise of its statutory powers. See proviso to section 33(13) of the Constitution of the Federal Republic of Nigeria 1979. A Judge may sit in chambers without excluding members of the public. It is therefore not unconstitutional to sit in chambers.” The often cited 2016 case of Alimi v Koshebinu, the Supreme Court has not derogate from this even if it frowned on judgments delivered in chamber. The test is access and attending ability of the public, which is guaranteed in virtual hearings. It would therefore appear from the above judicial authorities that the ‘public” nature of court proceedings is determined by unfettered access to the proceedings. In other words, what is paramount is not the venue of the proceedings but ability of members of the public to have “unrestricted” access to it. This is one occasion where we should not be hesitant about learning, borrowing and sharing experiences with other jurisdictions. At the recent Lagos State Summit, I made reference to some UK standards.
I referred to the judgment of the court in UK in the unreported case of NATIONAL BANK OF KAZAKHSTAN V BANK OF NEW YORK MELLON, where the court declined to adjourn a trial fixed for the following week which could not, because of the measures required to address the pandemic, be held in the traditional face to face manner. The court took that approach in the light of the guidance as to remote hearings given by the Lord Chief Justice on March 19, 2020. That “the courts exist to resolve disputes” and that they should strive to continue to do so even when that involves doing so by way of remote hearings. Teare J’s decision was made the day before the publication of the “Civil Justice in England and Wales protocol regarding remote hearings” which made provision for remote hearings and which began with the words “the current pandemic necessitates the use of remote hearings wherever possible”. In April 2020 this year, principles are emerging as to what the court should consider in ordering a remote hearing where a face to face hearing cannot take place. i) Regard must be made to the importance of the continued administration of justice. Justice delayed is justice denied even when the delay results from a response to the currently prevailing circumstances. ii) There is to be a recognition of the extent to which disputes can in fact be resolved fairly by way of remote hearings. iii) The courts must be prepared to hold remote hearings in circumstances where such a move would have been inconceivable only a matter of weeks ago. iv) There is to be rigorous examination of the possibility of a remote hearing and of the ways in which such a hearing could be achieved consistent with justice before the court should accept that a just determination cannot be achieved in such a hearing. v) Inevitably the question of whether there can be a fair resolution is possible by way of a remote hearing will be case-specific. A multiplicity of factors will come into play and the issue of whether and if so to what extent live evidence and cross-examination will be necessary is likely to be important in many cases. There will be cases where the court cannot be satisfied that a fair resolution can be achieved by way of a remote. In short the wheels of justice must not stop as long as the principles of “without prejudicing safety or risking injustice as a result.”
What should be the focus of commercial law practice at a time like this?
At our practice in the ALP, our focus is on corporate, commercial law and related litigation and dispute resolution. But we believe that for Nigeria and Africa to continue on its path of progression, a seamless delivery of professional services in the continuing globalization certain skill sets are required. They are rooted in commercial law. If this global crisis has shown nothing at all, it has established the reversal in the thinking that neo-nationalism and protectionist borders can either bring growth or protect us from crisis. This pandemic was globalised like our economies and so retreating from continental or regional arrangements is not the path to the future. We are active resource contributors to African Continental Free Trade Agreement (ACFTA). As the future of Africa and the trade in goods and services, our firm and our associate firms in Africa are built on this – the post crisis will show that a focus on commercial law is the right priority.
While in office as the Attorney General and Commissioner for Justice in Lagos, your administration made a new administration of criminal justice law. Can you say this has led to the success of criminal justice in the state?
I must congratulate my learned and distinguished friend, the Attorney General and Commissioner for Justice in Lagos, Mr. Moyosore Onigbanjo SAN for the excellent tireless job he is executing in office along with his colleagues. We can see the giant strides being made. I think the tools you refer to were mere building blocks we placed on foundations of our erudite predecessors. The Administration of Criminal Justice Law has fathered several emulations but significantly the area of law reform has stimulated many developments. We now have correction and custodial centres instead of prisons which opens the door for states to take part directly in the treatment of offenders by operating sentencing dispositions instead of leaving that stage for the federal government, while having to bear the consequences of improper rehabilitation. At least, to energise the magistracy to occupy its rightful place in the criminal justice system. It has entitled states to possess more of the components of the value chain in the criminal justice process.
The administration of justice and the justice sector reforms are recurring subject matters at most legal seminars, conferences, symposia and fora. What is the most daunting challenge we have with administering justice in Nigeria?
Nigeria has some of the best statutes in the world, some of the most deeply researched and thought-out rules, and like you said, papers are delivered frequently on the subject. So, while some of these may require slight reforms to suit present day realities, I do not think that the real problem is with our rules, because we do not lack legislation. What we lack is competence, capacity and character in the operators of the rules and the justice sector. A critical look at vital segments of the sector will reveal these lapses. “What is the character and competence of the police? What is the competence, character and capacity of the judges appointed? What is the competence, character and capacity of the prosecutors? And what is the value system they are driving towards? These are the operators of the justice sector that I speak of. At this point, what we need is a new compass that would give us a directional change; driving policies in the justice sector today. In the 80s’ Nigeria had a selection of the best legal minds at the Supreme Court. In that era, the tone was set for ‘substantive justice’ as opposed to ‘technical justice.’ That, for me, was a policy statement coming from the bench, stating that the court was no longer interested in technical justice. What this meant was that there was no technicality that could stop them from serving justice. This was a directional change. It is from such directional changes that judgments can then take their leads. And you can apply these directional changes to an array of disputes. Then you would have judges who would be ready to push ‘technicalities’ aside and focus on the substance of the cases before them. This is the kind of value system we need to bring back by realigning our compass.
Is there a significant difference between the judgments in that era and those of these times?
Sad to say, but there’s a huge difference and some of it has been man-made by a lack of capacity. Now you would find an ill thought-out judgment, which scarcely deals with the real issues because of the lack of capacity, while some of the issues may either be constitution-driven or as a result of the rules in question. Let’s take the issue of ‘jurisdiction’ for instance. You hear the constant argument in court, which states “My Lord this court lacks jurisdiction,” and the judges latches on to it and that’s it. The case makes no headway for the next 25 years just because of ‘jurisdiction.’ This is rules-driven. Why do we have so many subject-matter courts? I have never supported the exclusivity of jurisdictions in courts, because it’s an invitation to avoid the merits of a dispute. In fact, it’s an easy invitation for a dispute before the dispute.
Do you think the use of technology has brought any significance to the process of administering justice in Nigeria?
The resistance the judicial system has had towards the use of technology is ‘control.’ Automating systems is an act of transparency. When you automate systems, you remove the human element from the justice sector. It lets in a breath of fresh air and takes away the opportunity for corruption. That’s why during our time, we introduced verbatim reporting in our courts.
A legal colossus and former Minister of Justice, Chief Richard Akinjide SAN just passed on. What lessons do you think Nigerian leaders can learn from him?
I was privileged to have spent sometimes at R. O Akinjide & Co and I can easily attest to his insatiable appetite for the law and its public good to society. He represented the very best in us when it comes to ability and dedication to the craft of legal advocacy and mastery of the language of the bar. I stand with many members of the inner and outer bar in sharing the family grief and pride in his service to the law. The lessons are legion – examples of dedication and industry. Though I don’t share his political views, I proudly share with his attachment and devotion to a number of attributes and tools of the profession such as ethics, literature, law reporting and international law. Akinjide belonged to that school of ethics at the bar that insists that legal profession is ideally not open to all manner of persons because in the words of the Supreme Court of Nigeria “Legal practice is a very serious business that is to be undertaken by serious minded practitioners, particularly as both the legally trained minds and those not so trained always learn from our examples. We therefore owe the legal profession the duty to maintain the very high standards required in the practice of the profession. Ethics demands from a lawyer that his client must have absolute confidence in him.” He loved the essential tool of quality advocacy literature. In his book ‘Advocacy, Ethics and the Bar’, he counsels that every advocate should read two of Shakespeare’s Plays “The Merchant of Venice” and “Julius Ceaser”.
Both are inspiring and intriguing works of art. I have read them and found them to be inspiring. I believe chief said: “Broadly, there are three lessons to be learnt from Shylock vs Antonio. First, a good advocate should not take light hints from the Bench. Shylock did not observe that norm in the belief that his case was cast-iron. He lost. Second, statues should not be interpreted or applied in a way that takes leave of common sense. Interpretation must be fair and equitable and be seen to meet the ends of justice. “Third, if counsel is offered a fair settlement in a case, he should recommend acceptance to his client and not reject it on the ground that his client’s case is good and would probably get more after a full trial.” Chief Akinjide was a founding editor of Nigerian Monthly Law Reports. This earlier iteration was one of my motivations for founding the Commercial Law Reports of Nigeria (CLRN) published by Acolex Publishing Limited.
A preface I wrote on behalf of the editiorial board in January 2005, had the following: “In establishing the Commercial Law Reports of Nigeria (CLRN), the obvious objective is to meet an obligation to deliver to the legal public a contribution for posterity and the furtherance of legal expertise. The more insidious prompting is to focus on a core area of practice that has otherwise not been fully reported. Trademarks and intellectual property, contracts and other commercial obligations, shipping and maritime disputes; company law and corporate governance; revenue law and tax appeals; employment law; arbitration and banking matters all come within our contemplation. The categories remain open. It is for this reason and others that a monthly periodical is conceived. CLRN has selected only judicial decisions in commercial law to provide a ready-made tool of assistance for the practitioner, judge, scholar, researcher and author in their forage into the state of the law in Nigeria. There is no gainsaying that the business community will appreciate the development as CLRN attempts to bridge the knowledge gap and guide their advisors on the state of the law of obligations in Nigeria”.