By: Chief Mike Ozekhome, SAN

Some people talk politics. Others dwell on sentiments, fiction and propaganda. Most humbly, I talk law, based on facts. Cold, hard facts. History guides me. Posterity is the judge. Events always vindicate me. This has been the trajectory of my life. Almighty God, I thank you.

The Supreme Court of Nigeria has just vindicated my two year struggle that provisions of the Administration of Criminal Justice System (ACJA) are inferior to the overriding powers of the Constitution, the grund norm and font et origo of our democratic dispensation.

A full seven man panel of the apex court presided over by Justice Amina Augie, in a lead judgment delivered by Justice Ejembi Eko, nullified and set aside the unfair and unjust conviction of Chief Orji Uzor Kalu. Kalu had been sentenced to 12 years imprisonment by the Hon. Justice Mohammed Idris; a judgement that was upheld by the Court of Appeal. The Supreme Court has now reaffirmed that a Justice of the Court of Appeal cannot operate as a judge of the Federal High Court. It therefore ordered a fresh trial by another Judge.

BRIEF BACKGROUND FACTS

On 25th September, 2018, I filed a motion before Justice Mohammed Idris, on behalf of Orji Uzor Kalu, prayerfully requesting the erudite Justice (Judge?) to recuse and disqualify himself from further trying Kalu, as he (Justice Idris), had been elevated to the Court of Appeal on 22nd June, 2018. The following day, 26th September, 2018, I argued the motion in proceedings that lasted for about 4 hours.

The pith of my argument was that Justice Idris, having been elevated to the Court of Appeal, was no longer qualified to sit as a Judge of the Federal High Court, and was thus disqualified from trying Kalu. I contended that section 396 (7) of the ACJA which permits a High Court Judge elevated to the Court of Appeal to continue with and conclude a part heard matter was in gross conflict with the provisions of sections 1(1), 1(3), 238(2), 239, 240, 250(2) and 253 of the 1999 Constitution, and therefore liable to be struck down. I cited, inter alia, the earlier Supreme Court case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 S.C 32. I therefore urged the court to remit the case file back to the Chief Judge of the Federal High Court, for reassignment to another Judge.

The learned trial Judge in a very brief ruling held that though my argument was “compelling and the issues raised recondite and paramount”, he would still go ahead and hear the case since the same issue had earlier been raised (albeit orally) and he had overruled same.

He concluded that since his earlier ruling on the matter was already being challenged at the Court of Appeal, he would go on with the trial. He therefore adjourned the matter to the following day, 27th September, 2018, for hearing. On that 27th September, however, the court adjourned the “matter sine die, considering all the factors surrounding the case, fiat and the motion argued yesterday”.

READ ALSO: It’s wrong to play politics with Coronavirus, Minister warns Nigerians

The case was therefore put in abeyance for a while, till the fiat earlier issued to the trial judge was again renewed. He thus continued with the trial and convicted Kalu, a judgment that has just been finally set aside by the apex court.

However, because of the serious constitutional issues involved in the matter, I did not rest on my oars. On 29th November, 2018 and 5th December, 2018, I took on the issues headlong in a two part series in my “HARD FACTS” Wednesday weekly column in the Sun Newspaper, titled, “The Constitutional validity or otherwise of an elevated Judge continuing with part heard matters at the lower court”.

I also wrote a four part serialization in my weekly column in the Lawyer pages of Thisday newspaper, “TALKLING CONSTITUTIONAL DEMOCRACY”, on the 4th, 11th, 18th and 25th of December, 2018.

I DID NOT HANDLE THE CASE ON APPEAL

For the records, I was not the Counsel who argued the appeals at the Court of Appeal and Supreme Court, which had arisen from the trial judge’s earlier refusal to recuse himself based on an oral application. This was before my argument on 26th September, 2018, based on my fresh formal motion filed 25th September, 2018. I genuinely believe that justice has been finally served.

Below is my earlier complete write-up on the legal position which has just been vindicated and upheld by the Supreme Court. (See Thisday (Lawyer pages) of 4th, 11th, 18th and 25th December, 2018). Kindly read on.

THE CONSTITUTIONAL VALIDITY OR OTHERWISE OF AN ELEVATED JUDGE CONTINUING WITH PART HARD MATTERS AT THE LOWER COURT

INTRODUCTION
It is no longer news that many Judges who have been elevated to the Court of Appeal from the various High Courts and Federal High Courts across Nigeria are still continuing with the hearing of matters that were part heard before their elevation. What is perhaps not known to most Nigerians is that such Judges were actually, on the 22nd of June, 2018, elevated to the Court of Appeal from the said lower courts.

In insisting on trying such part heard matters at all cost, come sun, come rain, the judges are perhaps relying on section 396(7) of the Administration of Criminal Justice Act (ACJA), which came into effect on the 15th of May, 2015.

The section which was passed, perhaps in good faith, to prevent prolonged cases being heard de novo, provides as follows:
“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 purposes of concluding any part-heard criminal matter, pending before him at the time of his elevation and shall be concluded within reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal”.

THE ISSUE FOR DETERMINATION
The question that begs for answer is whether, a Judge, having been elevated to the Court of Appeal, can still sit to try cases at the High Court or Federal High Court, relying on section 396(7) of the ACJA. Our humble answer is in the negative. For starters, section 397(7) ACJA appears to be a frontal attack and violation of sections 238(2), 240, 250(2) and 253 of the Constitution of the Federal Republic of Nigeria, 1999, as altered and decided cases on the subject matter.

To that effect, the section is null and void by virtue of section 1(1) and section 1(3) of the said 1999 Constitution, which provide as follows:
(1) The Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) ………………..
(3) If any other law is inconsistent with the provisions of the Constitution, this Constitution shall prevail and that other law shall to the extent of the inconsistency be void”.

See the cases of AG ABIA STATE VS AG FED. (2002) 6 NWLR (PT. 763) 204 and ABACHA VS FAWEHINMI (2000) 4 SC (PT. 11), PAGE 1.
By virtue of section 6 of the 1999 Constitution, as altered, the judicial powers of the federation are vested in the courts of law as established by the Constitution.

By section 6(5) thereof, the Court of Appeal is created as one of the superior courts of record. The jurisdiction of the Court of Appeal is as provided for in sections 238 – 240; with section 248 giving the president of the Court of Appeal powers to make rules regulating the court’s practice and procedure.
THE ORIGINAL AND APPELLATE JURISDICTION OF THE COURT OF APPEAL

By virtue of sections 239 and 240 of the Constitution, the original and appellate jurisdiction of the Court of Appeal to which these Judges have been elevated since June, 22, 2018, do not extend to the hearing or trial viva voce, of criminal matters pending before the High Court or Federal High Court. Section 239 deals with its original jurisdiction, and it provides as follows:

“Subject to the provisions of this Constitution, the Court of appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether –
Any person has been validity elected to the office of President of Vice President under this Constitution; of the term of office of the president or Vice- President has ceased; or
The office of president or Vice-President has become vacant”.

Section 240 of the Constitution of the Federal Republic of Nigeria, 1999, as altered, on the other hand, which deals with the appellate jurisdiction of the Court of Appeal, provides as follows:

“Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be described by an Act of the National Assembly”.

It is incomprehensible why trial judge would insist on continuing with part heard matters six whole months after their colleagues with whom they were sworn in and with whom they took oath of office as Justices of the Court of Appeal should still descend to the lower Bench and belittle themselves by answering the title “Judge of the High Court” or “Judge of the Federal High Court”, when their appropriate title has since changed to “Justices of the Court of Appeal”, since 22nd June, 2018, when they vacated their High Court or Federal High Court seats upon elevation to the Court of Appeal.

The Federal High Court that still harbours some these promoted Judges has sections 251 and 252 dealing with its jurisdiction; whilst sections 249-254 deal with appointment of its judicial officers. By virtue of section 253 of the Constitution, “the Federal High Court shall be duly constituted if it consists of at least one Judge of that Court”. This means that no Justice of the Court of Appeal shall climb down from his exalted position to assume duties as one of the Judges of the Federal High Court, for the purpose of trying a charge.

The Court of Appeal, on the other hand, has section 239(2) guiding its composition. It provides that the Court of Appeal shall be duly constituted if it consists of at least three justices of the Court of Appeal”. This means, for example, that no Justice of the Court of Appeal shall exercise the judicial powers donated to a judge of the Federal High Court as envisaged in sections 251 & 252 of the Constitution, he not being a Judge of the said court as provided for in section 253 of the Constitution.

The original and appellate jurisdiction of the Court of Appeal as provided for in sections 239 and 240 of the Constitution, respectively, do not extend to the hearing of criminal matters at the High Court or Federal High Court, in its original jurisdiction.

HOW DO WE ADDRESS SUCH JUDGES?
By the way, how would we address such elevated Judges still trying charges before the lower court? Are we going to begin to address such an elevated Judge as “My lord, Justice of the Court of Appeal, but sitting here as Judge of the High Court/Federal High Court to try this charge”?; Or as “My Lord, Judge of the High Court/Federal High Court since elevated to the Court of Appeal, but donated to the High Court/Federal High Court to continue the trial of this Charge”?

How will an elevated judge who tries a matter at the lower court from which he has been elevated sign his judgment? If he signs as “Justice of the Court of Appeal”, the entire Judgment is liable to be set aside for being illegal, unconstitutional and amounting to a complete nullity. If he signs as “Judge of the High Court”, or “Judge of the Federal High Court”, he lies and is liable to the offence of perjury, having taken the judicial Oath of office as Justice of the Court of Appeal” as prescribed in the 7th Schedule to the Constitution. See the cases of TERYTEX NIG. LTD v. NPA (1988)LPELR-20265(CA), A-G, EKITI V. C.O.P. EKITI STATE (2018) LPELR-4421(CA).

I humbly submit that by the judicial Oath of office as contained in the 7th Schedule to the Constitution, which the elevated judex has sworn to, he vows to perform his duties faithfully and in accordance with the provisions of the Constitution.

It is our respectful submission that from the 22nd day of June, 2018, when various Judges of the High Court and Federal High Court were sworn in as Justices of the Court of Appeal, in accordance with the judicial oath as prescribed in the 7th Schedule to the 1999 Constitution, they automatically ceased to be Judges of the High Court or Federal High Court. Afortiori, they also ceased to have jurisdiction to continue to try matters which they ad hitherto handled before their elevation. The judges having been elevated as Justices of the Court of Appeal in line with the provisions of section 238(2) of the Constitution, they cannot, under any guise, continue to sit as judges of the High Court or Federal High Court. They lack competency and jurisdiction to try such matters.

By virtue of section 239 of the Constitution, the Court of Appeal, both in its original and appellate jurisdiction, has powers to hear and determine cases if it is composed of not less than three Justices of the Court of Appeal. This means that no such Justice can exercise the judicial powers of the High Court/Federal High Court, in the same way that no Judge of the High Court/Federal High Court shall exercise judicial powers specifically reserved for the Court of Appeal.

To underscore the enhanced and upgraded status of a judicial officer elevated to the Court of Appeal, he is usually referred to as “Justice of the Court of Appeal” (like his counterpart, “Justice of the Supreme Court”); whereas his counterpart at the lower Bench from which he has vacated is still simply referred to as “Judge of the High Court/ Federal High Court”. This is why section 3(2) of the Court of Appeal Act provides, most unambiguously, that:
“The President shall rank equal to a Justice of the Supreme Court and the other Justices of the Court of Appeal rank next to the Justices of the Supreme Court and equal to the Chief Judge of the Federal High Court”.

This shows that Justices of the Court of Appeal are superior to the judges of the High Court/Federal High Court. They can upturn their judgments. The hierarchical structure of Nigerian superior courts identified in section 6 of the Constitution is inviolate and immutable. It is to enable justice travel on its legs from the High Court/Federal High Court, to the Court of Appeal, and then to the Supreme Court. Indeed, the Court of Appeal does not hear and determine criminal cases by calling witnesses viva voce, or writing lone Judgments. This is amplified by sections 15, 18, 19 and 26 of the Court of Appeal Act.

It is humbly submitted that once a judicial officer has been elevated to a higher court, he immediately and automatically shreds the toga of his original status as a Judge of the lower Bench. He ceases equality with this former peers who were not so elevated. He becomes a new creature. He dorns the garment of 2 Corinthians 5:17.

“The old things have passed away, behold, the new has come into being if then any be in Christ, he is a new creature: old things are passed away, behold all things are become new”. The hallowed chambers and court precincts of his former court become forbidden zones of operation, having subscribed to the oath of office of his new position.

Aside the 7th Schedule to the Constitution, section 290(1) thereof prohibits a person appointed to judicial office from performing the duties of his office until he has first declared his assets and liabilities as prescribed by the Constitution. He must also subsequently take and subscribe to the Oath of allegiance and the judicial Oath. The said judicial oath can be found in the 7th Schedule as follows:

“I, …… do solemnly swear/affirm that I will be faithful and bear true allegiance to the Federal Republic of Nigeria; that as Chief Justice of Nigeria/Justice of the Supreme Court/President/Justice of the Court of Appeal/Chief Judge/Judge of the Federal High Court/Chief Judge/Judge of the High Court of the Federal Capital Territory, Abuja/Chief Judge of …… State/Judge of the High Court of …… State/Grand Kadi/Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja/ Grand Kadi/Kadi of the Sharia Court of Appeal of …. State/President/Judge of the Customary Court of Appeal of the Federal Capital Territory, Abuja/President/Judge of the Customary Court of Appeal of ……… State.

I will discharge my duties, and perform my functions honestly, to the best of my ability and faithfully in accordance with the Constitution of the Federal Republic of Nigeria and the law, that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria.
So help me God”.

It amounts to a grave contradiction in terms for any judicial officer who has subscribed to the judicial Oath as Justice of the Court of Appeal to literally have a free fall and descend to the lower court to hear uncompleted, but pending cases. Such an act is not only illegal and unlawful, it is unconstitutional, null and void. LIn the case of CHUKWUMA V. NWONYE (2009) LPELR 4997 (CA), the intermediate court stamped imprimature as follows:
“Oath is defined as “a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will be bound to a promise.”

The implication or legal effect therefore of an oath is to subject the person who took an oath to penalties for perjury in the event that the testimony turns out to be false.” Per ARIWOOLA, J.C.A (Pp. 12-13, paras. A-B)”.
​
IMPORTANCE OF JURISDICTION
For the avoidance of doubt, jurisdiction is the spinal cord and live wire of any court proceedings. Where the court lacks jurisdiction, the entire trial however, beautifully conduct, evaporates into shambles, becomes a total nullity and is consigned to the vehicle of judicial oblivion.

In the case of NDIC V. CBN & ANOR (2002) LPELR-2000(SC), the apex court held as follows:
“Jurisdiction is the very basis on which any tribunal tries a case; it is the lifeline of all trials. A trial without jurisdiction is a nullity…. This importance of jurisdiction is the reason why it can be raised at any stage of a case, be it at the trial, on appeal to Court of Appeal or to this court; a fortiori the court can suo motu raise it.

It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the court may not have jurisdiction, it can be raised even viva voce as in this case. It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity.” Per UWAIFO, J.S.C. (Pp.16-17, paras. G-B)”.
Similarly, in the case of AKERE & ORS. V. THE GOVERNOR OF OYO STATE & ORS. (2012) LPELR-7806(SC), apex court further buttressed on this issue as follows:

“The over-riding importance of jurisdiction cannot be overstated. It is the life blood of any litigation before a Court properly so-called. It is so fundamental that when a Court has no jurisdiction, any action taken by that Court will be a nullity notwithstanding the fact that the proceeding was well conducted. See Osakue v. Federal College of Education Asaba & Anor (2010) 5 SCM 185, 201-202. See also Madukolu v. Nkemdilim (1962) 1 ANLR (Pt. 4) 587 for the principles which define the jurisdiction or competence of a Court to entertain a particular matter.” PER NGWUTA, J.S.C. (Pp.23-24, Paras. G-C)”.

In the causa celebre on jurisdictional issues, MADUKOLU V. NKEMDILIM 2 SCNLR 341, (1962) 1 ANLR (Pt. 4) 587, the apex court laid down the following conductions which must be wholly present before a court can be deemed to here jurisdiction:
(a) it is properly constituted with respect to the number and qualification of its members;
(b) the subject matter of the action is within its jurisdiction;
(c) the action is initiated by due process of law and (d) any condition precedent to the exercise of its jurisdiction has been fulfilled.’

What the ACJA in section 396(7) has audaciously, but vaingloriously attempted to do is, rather than blow muted trumpet and defer to a superior law, ie, the Constitution, the fons est origo, the grund norm and the “Kabiyesi”, “Eze” and “Emir” of our laws, it seeks to torpedo the Constitution itself. Such a law as the ACJA must suffer a merciless strike down under section 1(3) of the said Constitution.

The ACJA has no powers to grant dual citizenship to a judicial officer as both Judge of the High Court/Federal High Court and Justice of the Court of Appeal.
It is akin to the bat that claims to be a mammal (of the order of Chiroptera), because it has teeth, ears, mammary glands, produces milk to feed its young and with forelimbs like all animals do. It simultaneously claims to be a bird because it can fly like all birds.

The sore question that begs for an answer is whether a Judge of the High Court or Federal High Court lawfully and legally elevated to the Court of Appeal can still maintain dual status and exercise dual judicial powers over cases in both the Court of Appeal (as a Justice) and the High Court or Federal High Court (as a Judge). This cannot be so.

It is humbly submitted that any elevated judge having lost the toga of being a Judge of the High Court or Federal High Court, the proper thing for him to do is for such Justice of the Court of Appeal to recuse himself, send the case file back to the Chief of the High Court or Federal High Court, to be reassigned to another judge of the said High Court or Federal High Court, in line with section 253 of the Constitution, which provides for the constitution of the Federal High Court. Such a Judge must, like Pontius Pilate, wash his hands off the case, to prevent being accused of undue and special interest in such a matter.

The mere suspicion by a litigant that he is being “tried” at the trial court by a Justice of the Court of Appeal who lacks judicial competency to do so is sufficient for such a judge to recuse himself. Afterall, justice is rooted in confidence.
In MBAS MOTEL LTD. V. WEMA BANK PLC. (2013) LPELR-20736 (CA), the Court of Appeal held as follows:

“We must never lose sight of the fact that justice is rooted in public confidence and it is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins.” Per ABIRU, J.C.A. (P. 26, Paras. E-G)”.

In JWAN v. ECOBANK & ANOR (2018) LPELR-45631(CA), the Court of Appeal held as follows:
“Before concluding this appeal, this Court considers it pertinent to reiterate that it is essential to understand that the aim of any administration of justice system must be to bring about justice in the polity. Justice is the first virtue of social institutions, as truth is of systems of thought. Justice is rooted in the confidence that the public repose in the administration of justice system and it behooves the Courts, therefore, to ensure that they do not do anything to erode the root of justice.

It is matters like the present one that leaves the entire judicial system open to ridicule and the risk of becoming irrelevant to the aspirations of the people. Uwaifo, JCA (as he then was) made this point succinctly in State v. Akpabio (1993) 4 NWLR (Pt. 286) 204 at 220 thus: “I think we have come a long way in this country to ought to find no necessity to sound a warning that our sense of approach to justice in our Courts should not be seen to be in any way underhand, such as is employed as if to take the society for a ride.

The dispensation of justice is not left to the whims and caprices of any Judge, founded on shabby reasoning and perfunctory performance. It is not too much to expect the judiciary to set the pace in the quest for excellence in the discharge of public duty. It should be a sort of modulator of varying forces of change in a socio-political environment towards positive and beneficial ends.

That is the sense in which law is expected to be the catalyst of societal values, attitudes and development. Much of the living aspect of the law depends on the alertness of Judges. But if the judiciary takes a back seat through unsatisfactory input by Judges even of superior Courts, it will sooner become a lame duck and irrelevant in the reckoning of the astute and even the common man.” Per ABIRU, J.C.A. (Pp. 30-32, Paras. F-C).

CAN PARTIES VOLUNTARILY CONFER JURISDICTION ON A COURT?

I have had the benefit of hearing the argument of some counsel or appellate Justices still hearing such part heard matters across Nigeria after their elevation. It is to the effect that Counsel who are participating in such proceedings actually wrote and requested that such Justices should continue with the hearing of such cases.

That argument flies in the face, and assaults trite principles of law. For the avoidance of doubt, parties cannot by consent or agreement confer jurisdiction on a court where such is not in existence. I humbly refer to the case of ONNA TRADITIONAL RULERS COUNCIL & ORS V. UMOREN & ORS (2018) LPELR 44301(CA), where the Court of appeal held as follows:

“It is trite that where jurisdiction is absent, parties cannot by waiver or consent confer jurisdiction on the Court”. Per OYEWOLE, J.CA. (P. 15, para E).

As held in the case of Prof. Steve Torkuma Ugba & Ors v. Gabriel Torwua Suswam & 4ors (No. 2) (2012) 6 SC (PT.II) 56, “jurisdiction of courts is granted by statute or Constitution but not by courts. In which case, no court shall have jurisdiction to go beyond the provisions of the enabling law. Otherwise, will be ultra vires”.

Jurisdiction is either granted by the Constitution itself, or by an enabling statute. It is not assumed or presumed. It is not gratuitously donated by any of the parties to a dispute. This is why in the case of JOSIAH AYODELE ADETAYO & 2ORS V. KUNLE ADEMOLA & 2ORS (2010) 3-5 SC 89, the Supreme Court emphatically declared that:
“It must be borne in mind always and this is settled that all the courts in this country, derive their powers and jurisdiction in particular, by either statute or Constitution which is the supreme, organic, fundamental law and the grund-norm of this country”. Per Ogbuagu, JSC. (P. 27, paras. F-G).

The importance of jurisdiction being the lifeline of all trials is why it can be raised at any stage of a case, be it at the trial, on appeal to the Court of appeal, or to the Supreme Court. The court, afortion, can suo motu raise it. It can even be raised viva voce (per Uwaifo, JSC, in NDIC v CBN (2002) LPELR 2000 (SC). See also Akere & Ors v The Governor of Oyo State (2012) LPELR, 7806 (SC); Anozie v. Emerenini & Anor (2018) LPELR – 43888 (CA), Chukwuma v. Nwonye (2009) LPELR 4997 (CA).
In the case of ONONYE V. ODITA (2008) 10 NWLR (Pt. 1096)487, the Court of Appeal held follows:

“That the issue of jurisdiction is fundamental is a matter of trite law and where jurisdiction of a court is challenged, that issue must immediately be determined by the court before it embarks on any trial or determination of the action before it. Unless a court is cloaked with jurisdiction, its proceedings are rendered a complete nullity, no matter how well the case was determined. See Madukolu v. Nkemdilim (1962) 1 All NLR 587; Anya v. Iyayi (1993) 7 NWLR (Pt.305) p.290; Iwuagolu v. Azuka (2007) 5 NWLR (Pt.1028) P. 628; Governor of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) P. 592; Okoya v. Santilli (1990) 2 NWLR (Pt.131) p.17”.

PRECEDENTS ON THE UNCONSTITUTIONALITY OF ELEVATED JUDGES STILL HANDLING THEIR MATTERS AT THE LOWER BENCH
In the causa cerebre of OGBUANYINYA & 5 ORS. V. OBI OKUDO & 3ORS (1979) 9SC.32, a similar situation reared its head before the apex court.

In 1977, Hon. Justice Nnaemeka-Agu, a judge of the Anambra State High Court was the trial judge in a land matter. On the 13th day of June, 1977, the learned trial Judge listened to the addresses of Counsel on both sides and adjourned judgment on the 17th day of June, 1977. Two days previous to the 17th June, 1977, Hon, Justice Nnaemeka-Agu was appointed a Justice of the then Federal Court of Appeal. The argument of the appellant was that as at the 17th of June, 1977, when the learned trial judge delivered his judgment, he had ceased to be a judge of the High court of Anambra State.

In July, 1979, the apex court unanimously upheld the argument that the judgment delivered by Hon. Justice Nnaemeka-Agu on 17th June, 1977, was illegal, null and void. The judgment was consequently set aside and the case remitted back to the trial court for trial de novo.

Held the apex court:

“The case was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka-Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka-Agu, J. (as he then was then was) delivered judgment, which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal.”

The case of ALHAJI AHMED GARBA BICHI &ORS V. ALHAJI IBRAHIM SHEKARAU & ORS, (2009) LPELR-3874 (CA), where the Court of Appeal held that once a Judge is elevated to the intermediate court, and takes the oath, such a Judge cannot continue to sit as a Judge of the lower court, is also apposite.

It is humbly submitted, as stated earlier, that any elevated judge having lost the oga of being a Judge of the High Court or Federal High Court, the proper thing for him is for such Justice of the Court of Appeal to recuse himself, send the case file back to the Chief Judge of the High Court or Federal High Court, to be reassigned to another Judge of the said High Court or Federal High Court, in line with section 253 of the Constitution which provides for the composition of the Federal High Court.

THE DOCTRINE OF COVERING THE FIELD
The doctrine of covering the field surely applies here. The Constitution, having taken care of the hierarchy of courts, the ACJA cannot make incursions into the same area. This doctrine as espoused by the Supreme Court in the case of LAGOS STATE v. EKO HOTELS LTD & ANOR (2017) LPELR-43713(SC), states as follows:

“A convenient place to commence the resolution of this issue is to examine the application of the doctrine of “covering the field” as it relates to the powers of the National Assembly and State Houses of Assembly to make laws. In A.G. OGUN STATE & ORS. VS. A.G. FEDERATION (1982) NSCC (Vol.13) 1 @ 35 lines 18 – 30, His Lordship, Kayode Eso, JSC stated thus: “I take the view that when one considers this doctrine, the phrase “covering it the field” means precisely what it says.

Where a matter legislated upon is in the concurrent list and the Federal Government has enacted a legislation in respect thereof, where the legislation enacted by the State is inconsistent with the legislation of the Federal Government it is indeed void and of no effect for inconsistency.

Where, however, the legislation enacted by the State is the same as the one enacted by the Federal Government, where the two legislations are in pari materia I respectfully take the view that the State Legislation is in abeyance and becomes inoperative for the period.

The Federal Legislation is in force. I will not say it is void. If for any reason the Federal Legislation is repealed, it is my humble view that the; State legislation, which is in abeyance, is revived and becomes operative until there is another Federal Legislation that covers the field”.

This position was given judicial imprimatur by the apex court in INEC VS. MUSA (2003) 3 NWLR (Part 806) 72, where the court in striking down INEC’S guidelines for registration of political parties which contradicted the clear provisions of the Constitution, laid down three guidelines for testing the validity of provisions of an Act of the Legislature (NASS).

They are:
(1) The legislative powers of the legislature cannot be exercised inconsistent with the Constitution where it is so exercised, it is invalid to the extent of such inconsistency.

(2) Where the Constitution has enacted exhaustively in respect of any such situation, conduct or subject, a body that claims to legislate in addition to what the Constitution has omitted must show that it has derived the legislative accordingly to do so from the Constitution.

(3) Where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State house of Assembly can alter those conditions in any way, different or indirectly, unless the Constitution itself as an attitude of the supremacy expressly so authorises.

Since there cannot be two Emirs, Ezes, or Obas in one Palace at the same time, the ACJA cannot be accommodated in the same hallowed pantheon of legitimacy and supremacy of laws as the Constitution.
CONCLUSION

It is clear to me that any judgment delivered by a Justice of the Court of Appeal acting as a Judge of the High Court/Federal High Court is unconstitutional, illegal, null and void. Same is subject to being set aside on appeal. For, when an act is void, it is void ab initio-and for all purposes.

See, UAC V. MCFOY (1962) AC 152, AKPENE V. CENTRAL BANK (1977)1 S.C. 47 at 59.

The best route open to judicial officers is for all elevated Judges to immediately and honourably recuse themselves from further trial of criminal cases before lower courts. To continue such trials is to have such judgments set aside on appeal, and cases ordered to start de novo.

That would be inimical to the interest of the defendant, as he would have been subjected to double jeopardy. Such a litigant could successfully plead autre fois acquit or autre fois convict. See the cases of STATE V. DUKE (2002) LPELR – 6163 (CA); SUNDAY V. STATE (2017) LPELR – 42140 (CA).

This is one instance where the state (prosecution), is respectfully urged to make haste slowly, by disbanding such appellate panels of Justices masquerading as trial Judges, and allowing all such cases to start de novo. True, justice delayed is justice denied. However, more significantly, justice hurried is justice crushed.

(See THE CHAIRMAN NATIONAL POPULATION COMMISSION V. THE CHAIRMAN, IKERE LOCAL GOVERNMENT & ORS, (2001) 7 S.C. (pt.iii) 90 @ 97-8, 100, TRADE BANK PLC V. UDEGBUNAM & ANOR (2004) ALL FWLR (PT.200) 1576 @1590 C.A.).

I so humbly submit.”