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Can a High Court sit with assessors?


Justice Walter Onnoghen

This question is prompted by certain provisions of the Child Rights Act 2003, which require a High Court to sit with assessors when hearing matters involving children. I believe that to the extent that the 1999 Constitution provides that a High Court shall be duly constituted if it consists of at least a judge of that court, those provisions of the Act are anomalous, if not out rightly inconsistent with the Constitution.

Jurisdiction Generally
Jurisdiction means the authority which a court has to decide matters that are litigated before it or to take cognizance of matters presented in a formal way for its decision: MOBIL OIL vs. LASEPA (2003) 104 LRCN @240 @ 262 per Ayoola, JSC. Jurisdiction is conferred on a court by statute or the Constitution and its limits are likewise imposed by the statute, charter or commission under which the court is constituted; it may be extended or restricted by similar means: S.P.D.C. vs. ISAIAH (2001) FWLR pt. 56 pg. 608

It is trite law that a court is competent to hear a matter when: 1. It is properly constituted as regards the number and qualification of the members of the bench and no member is disqualified for one reason or another; ii. The subject matter of the case is within its jurisdiction and there is no feature in the case, which prevents the court from exercising jurisdiction; and iii.The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction
See MADUKOLU vs. NKEMDILIM (1962) 2 SCNLR. I believe the first part of the above formulation is applicable to the subject matter of this piece

The Child Rights Act
The National Assembly enacted this statute in 2003. As its title suggests, its purpose is the protection of the rights of the child, which the Act defines as any person under the age of eighteen (18) years – See Section 277 of the Act. As part of its safeguards for the rights of children, the Act creates a special court – “the Family Court” – for each State of the Federation and the Federal Capital Territory, Abuja. The Family Court consists of two levels, the court as a Magistrate Court and as a Division of the High Court: See Sections 149 & 150 of the Act.

Jurisdiction of Courts Under the Child Rights Act
By virtue of Sections 151 and 162 of the Act, the court shall have “exclusive and unlimited” jurisdiction to hear and determine:-

a.Any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim in respect of a child is in issue; and

b.Any criminal proceedings involving or relating to any penalty, forfeiture, punishment, or other liability in respect of an offence committed by a child, against a child or against the interest of a child.

This includes divorce and custody of the child: Section 152(4). Section 152(1) & (2) of the Act provides that the Family Court at the High Court level shall consist of judges of the High Court of the State/the FCT as well as assessors who shall be officers not below the rank of Chief Child Development Officers; all of whom shall be appointed by the Chief Judge of the State/High Court of the FCT.

Section 152(3) of the Act is most apposite for our purposes, and it provides thus: “The court at the High Court level shall be duly constituted if it consists of: –
a.A judge and
b.Two assessors, one of whom has attributes of dealing with children and matters relating to children preferably in the area of child psychology education”.

By contrast, Sections 257(1), 272(1), 258 and 273 of the 1999 Constitution provide as follows, respectively: –
That, subject to Section 251 and any other provisions of the Constitution, the High Court of the FCT (or of a State) shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duly, liability, privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty forfeiture, punishment or other liability in respect of any offence committed by any person – Sections 257(1) & 272(1); ii. That the High Court of the Federal Capital Territory (or of a State) shall be duly constituted if it consists of at least one judge of that court – Sections 258 & 273

I submit that the question is whether these provisions of the Act and the Constitution are mutually exclusive or are they complementary? In other words, are the provisions of the Act which prescribe the jurisdiction of the High Court in actions involving children consistent with those of the Constitution which deal with the court’s normal (i.e., non-family) jurisdiction? To answer this question, it is essential to understand the legal concept of “Inconsistency” in the context of statutory/constitutional interpretation. In this regard, see HON. MIN. OF JUSTICE & ATT-GEN OF FED vs ATT-GEN OF LAGOS (2013) All FWLR pt. 704 pg. 1, where the Supreme Court defined it as “a situation where two or more laws, enactments and/or rules are mutually repugnant or contradictory, contrary, the one to the other, so that both cannot stand and the acceptance or establishment of the one implies the abrogation or abandonment of the other. It is thus a situation where two or more enactments cannot function together simultaneously”.

Accordingly, in my view, the question is whether, having regard to the said constitutional provisions, any proceedings in which the High Court sat as a Family Court, i.e., along with two assessors, is valid? This is almost certainly a novel point, because the only precedents on it are not direct, but rather tangential, as they arose from cases in which judges of High Court sat in the court’s appellate jurisdiction along with one or more persons who were not High Court judges (Sharia judges or Khadis). In all of those cases, the Supreme Court and the Court of Appeal invalidated the proceedings of the Court for that reason, i.e., that the court lacked jurisdiction because the composition of its members was unconstitutional by virtue of the participation of a non-judge of the High Court in the proceedings. See OLORIEGBE vs. OMOTESHO (1993) NWLR pt. 270 pg. 386 @ 402D & 409H and ADO v DIJE (1984) NCLR 5 pg. 260 @ 277 & 281

In both cases, the apex court and the Court of Appeal construed Section 238 of the 1979 Constitution (which are in pari materia with Sections 258 and 273 of the 1999 Constitution), with the court holding in the latter case that: “Although Section 238 enables more than one judge of the High Court to sit and hear appeals in the High Court, it does not enable any judge of any other court, or any other person to sit as a member of the High court . . . the express provisions of Section 238 do not contemplate any person other than a judge of the High Court sitting in that court. “
One More Thing . . .

Section 254C(1)(i)&(5) of the 1999 Constitution confers exclusive jurisdiction on the National Industrial Court in respect of civil and criminal causes and matters “connected with or related to child labour, child abuse and child trafficking”. This is contrary to Section 162(1) of the Child Rights Act, which purports to confer exclusive jurisdiction on the Family Court in such matters.

The same applies to Section 222 of the Act, which empowers the Family Court to detain any child who attempts to commit such capital offences as treason, murder or robbery. Sections 251(2), 257(1) and 272 of the Constitution empower only the Federal High Court, State High Courts and the High Court of the FCT to try these offences

The recognition that judges are not omniscient obviously informed the provisions of the Child Rights Act which require High Court judges to sit with assessors while hearing cases involving children – given the peculiar needs of children. Accordingly, those provisions are clearly salutary. However, to the extent that a High Court judge may not validly sit with a non-judge of that court, a strong case can be made for a constitutional amendment to empower them to sit with assessors while hearing cases involving children.

This would not be unprecedented, as a similar provision already exists in respect of the National Industrial Court under Section 254E(3) of the Constitution which empowers that court to “call in the aid of one or more assessors specially qualified to try and hear the matter wholly or party with the assistance of such assessors”
• Sani is an Abuja based lawyer

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