Cases are unnecessarily prolonged and defendants suffer long detention as their matters are constantly reassigned following the promotion of judges handling them, ENIOLA AKINKOUTU writes
Promotions are usually received with enthusiasm and joy because of the prestige attached to the new office or the increase in remuneration. This is usually the case when a judge is elevated from the High Court to the Court of Appeal.
However, while such elevations are celebrated and marked with fanfare by fortunate judges and their families, such promotions usually have bad consequences for defendants languishing in prison who by Nigerian law are still presumed innocent until proven otherwise.
Perhaps no one will understand this better than Hassan Aminu, a 34-year-old welder who was arrested by the Special Anti-Robbery Squad during a police raid in Abuja on October 8, 2017.
After spending 17 months in SARS, Aminu was eventually arraigned before Justice V.M Venda of the FCT High Court and detained in Kuje prison pending trial. However, Justice Venda soon retired and the case marked CR/234/18, hard to start afresh. The case file returned to the Chief Judge of the FCT High Court who assigned it to Justice P.O Affen. However, Justice Affen was elevated to the Appeal Court and the matter will now have to start de novo a second time. Aminu has now been in detention for three years while his case has yet to start.
For Nnamdi Ukandu and two others that were arrested by SARS in Abuja on May 30, 2018, the story is not that different. After spending five months in SARS detention due to a holding charge issued by a magistrate, they were all arraigned before Justice Adebukola Banjoko on January 29, 2019. Two witnesses had given testimony before Justice Banjoko was elevated to the Court of Appeal in 2021. The case will now have to start all over again.
Similarly, in 2014, John Osinachi was arraigned before Justice A.M Talba of the FCT High Court, Gudu, for armed robbery. In the case marked FCT/HC/CR/96/14, two prosecution witnesses were called. The defence closed its case on December 12, 2017. Judgment was reserved for March 26, 2018. However, before Justice Talba could deliver his judgment, he was elevated to the Court of Appeal, forcing the matter to start afresh. The matter was later reassigned to Justice J Hassan of the FCT High Court, Jabi and has failed to make any significant progress while Osinachi has remained in detention for the last seven years. The court has now adjourned the matter till January 25, 2022 for ruling on an application to strike out the charge and discharge the defendants since the prosecution has continually failed to show up.
Thousands affected
Several human rights lawyers representing accused persons informed The PUNCH that thousands of criminal cases nationwide are forced to start de novo because of the elevation or retirement of judges.
In 2021, no fewer than 18 High Court judges were elevated to the Court of Appeal. The 18 judges are Mohammed Danjuma (Grand Kadi, Niger State), Muhammad Sirajo (Plateau State High Court), Abdul-Azeez Waziri (Adamawa State High Court), Yusuf Bashir (Taraba State High Court), Usman Musale (FCT High Court), Ibrahim Jauro (Yobe State High Court) and Abba Mohammed (FCT High Court).
Others include Bature Gafai (Federal High Court, Awka); Danlami Senchi (FCT High Court), Mohammed Abubakar (Sokoto State High Court), Hassan Sule (Zamfara State High Court), Kenneth Amadi (Imo State High Court), Peter Affen (FCT High Court), Sybil Gbagi (Lagos State High Court), Olasunbo Goodluck (FCT High Court), Adebukola Banjoko (FCT High Court) Olabode Adegbehingbe (Ondo State High Court), and Bola Ademola (Ondo State High Court).
The implication is that the criminal cases being handled by all these judges would have to start afresh.
“Let us take Lagos for example. There is no judge in Lagos that doesn’t have at least 300 pending cases. So, if 18 judges are being elevated, you should be talking about thousands of cases being affected,” says human rights lawyer, Mr. Femi Falana (SAN)
Supreme Court weakens ACJA
In the past, when judges were elevated to the Court of Appeal, they were given fiat to conclude their cases at the trial court especially if those cases had gone far and witnesses had been called. This was done in line with Section 396(7) of the Administration of Criminal Justice Act.
However, in the case of Ude Jones Udeogu v FRN & Ors (Orji Kalu’s Case) the Supreme Court on May 8, 2020 nullified the Section 396(7) of ACJA which purports to empower a judge of the High Court who has been appointed to the Court of Appeal to continue to hear part-heard criminal cases.
The apex court held that by virtue of Section 238 of the constitution, the appointment of a Justice of the Court of Appeal takes effect from the date of appointment, and not the date of their inauguration prescribed by Section 290 of the constitution as (amended). The effect of this is that from the date of appointment of a person as a justice of the Court of Appeal from the High Court, such person ceases to be a Judge of the High Court and becomes a Justice of the Appeal Court. The necessary legal implication flowing from this is that any further judicial act that is carried out by such a person sitting as a Judge of the High Court from the date of appointment to the Court Of Appeal is devoid of legality, without jurisdiction, and is null and void. The implication is that all cases being handled by any judge that has been elevated must start afresh regardless of the nature or level of the case.
Overcrowded prisons
With thousands of cases being made to start afresh, the number of persons awaiting trial in several correctional centres is expected to continue to increase, prisons authorities say.
According to data published on the website of the Nigerian Correctional Service on November 15, 2021, a total of 70, 746 inmates are presently in correctional centres across the state of the federation including the Federal Capital Territory.
This is asides the 3,906 inmates that escaped from correctional centres in different parts of the country. Of the total number of inmates, 51, 218 which represent 70 per cent are awaiting trial while 19,528 inmates have been convicted, representing 30 per cent. About 50, 188 of those awaiting trials are male and 1030 are female.
The Spokesman for the Nigerian Correctional Service, Francis Enobore, told The PUNCH that any delay in court cases caused by elevation or retirement of judges, adds to the high number of persons awaiting trial.
He said since Nigerian law presumes that all persons are innocent until proven otherwise, it would be unjust to perpetually detain inmates for years based on prolonged trials.
The NCoS spokesman added, “Any alteration in the course of justice would translate immediately to inmates overstaying in incarceration. Whether the obstruction comes by way of judges being elevated or retirement that affects the free flow of cases, automatically, the person that will be on the receiving end will be the accused who is on trial and that will automatically translate to congestion of inmates in our custody.
