Is Section 396(7) of the Administration of Justice Act 2015 Truly Inconsistent with

the Nigerian Constitution or Was the Supreme Court Wrong?

Professor ’Gbenga Bamodu

gbenga@phillipsonslaw.com

A. Background
In its recent judgment in Ude Jones Udeogu v Federal Republic of Nigeria (unreported
Appeal No SC. 662C/2019; delivered May 9, 2020), the Nigerian Supreme Court
declared section 396(7) of the Administration of Criminal Justice Act 2015 (‘ACJA’) to be
inconsistent with provisions of the Nigerian Constitution of 1999. Specifically, the
Supreme Court held that section 396(7) of the ACJA is inconsistent with section 290 of
the 1999 Constitution and that it is thus void to the extent of that inconsistency.
The background factual context is that during the criminal trial of former governor Orji
Uzo Kalu and another person in the Federal High Court on corruption charges, the
presiding judge was promoted to the Court of Appeal. Nevertheless, pursuant to a ‘fiat’
issued by the President of the Court of Appeal, purportedly in light of section 396(7) of
the ACJA, the judge concluded the trial which resulted in the conviction of the appellant
and the former governor.
The Supreme Court held that the purported grant of dispensation under section 396(7)
of the ACJA, to a judge who had been promoted to the Court of Appeal, to conclude an
extant trial in the Federal High Court was inconsistent with section 290(1) of the 1999
Constitution in light, inter alia, of section 253 of the Constitution. In light of its conclusion
on the constitutionality of section 396(7) ACJA the Supreme Court quashed the
conviction of the Appellant and ordered a fresh trial; it is not clear that the conviction of
the co-accused governor was actually quashed.
It is the contention in this essay that, at the very least, section 396(7) of the ACJA is
capable of legitimate and juridically sound interpretation in a manner consistent with
both sections 253 and 290 of the 1999 Constitution. At the worst, the Supreme Court’s
approach to the interpretation of the relevant constitutional and statutory provisions is,
arguably, erroneous – a suggestion that is never made lightly.

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B. Section 396(7) of the ACJA
It is necessary to set out the provisions of section 396(7) of the ACJA in full:
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.
Section 396(7) ACJA, by its own terms, gives ‘dispensation’ to the promoted judge ‘to
continue to sit as a High Court judge’ albeit only for a particular purpose which is to
conclude a pending part-heard criminal matter. This provision applies to the Federal
High Court as much as to other High Courts in Nigeria. It is important to stress some
elements of section 396 ACJA in light of the central argument of this essay.

i. ‘Dispensation’ is Given by the Act Itself – No Need for a ‘Fiat’

Section 396(7) says that the elevated judge ‘shall have dispensation ….’ In line with
standard principles of interpretation, that provision does not by itself require any further
formality to confer the dispensation on the elevated judge. Many provisions of even the
Nigerian Constitution establishing various bodies provide ‘there shall be [insert body]’. A
pertinent example is section 249(1) of the 1999 Constitution which provides: ‘There
shall be a Federal High Court’.
It is contended that by the terms of section 396(7) of the ACJA itself, the ‘fiat’
purportedly given by the President of the Court of Appeal to the elevated judge in the
instant case, although an admirable administrative exercise, was not a legal necessity
or requirement. The Supreme Court implicitly itself accepted the distinction between the
‘statutory dispensation’ and the ‘administrative Fiat/permission’ just as the court did well
to overlook, essentially, the predication of the fiat/permission on the ‘Criminal Justice
Act 2015’.

ii. The Elevated Judge Remained a Judge of the High Court – But Only for A Special
Purpose
The Supreme Court’s decision hangs heavily on a conclusion that the elevated judge
had ceased to be a judge of the Federal High Court. For this, the Supreme Court relied
on cases decided before the enactment of the ACJA; in particular, Ogbunyiya v Okudo

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(1979) NSCC 77 and Our Line Ltd v SCC Nigeria Ltd & Ors (2009) 17 NWLR (Pt 1170)
383. The Court dismissed the argument of the Respondent’s counsel that the law had
changed since those cases. It is suggested, as explained further shortly, that the Court
was perhaps hasty in dismissing the counsel’s argument, particularly simply on the
basis that a cross appeal was not filed in light of the acceptance of those earlier
judgments by the lower court.
Once again, in fairness to the Supreme Court, it did pursue an investigation into the
point whether the law had changed since the enactment of the ACJA but was
persuaded by the argument that the purported change would amount to a non-
permissible constitutional amendment. This is a point where serious issues arise for
challenging the interpretive approach adopted by the Supreme Court.
After acknowledging the establishment of the Federal High Court under section 249 of
the 1999 Constitution, the Supreme Court pointed out that under section 250 of the
Constitution a judge of the Federal High Court is appointed on recommendation of the
President to the National Judicial Council. On the other hand, there was no issue that
the elevated judge in the instant case had been duly appointed to the Federal High
Court. The real issue therefore turned on whether upon elevation to the Court of Appeal,
the judge had ceased to be a judge of the High Court. Critically, the real issue should
have turned on whether the elevated judge had ceased to be a judge of the High Court
for all purposes and time which, it is contended, could have led the court to a deeper
consideration of the provisions of section 396(7) of the ACJA and, possibly, to a
different conclusion.
The Supreme Court simply proceeded on the basis that since it had held previously in
Ogbunyiya v Okudo and Our Line v SCC, that a High Court judge elevated to the Court
of Appeal ceased to be a judge of the High Court, section 396(7) ACJA could not be
read together with constitutional provisions to extend the tenure of the judge as a High
Court judge. The problem is that this is not what section 396(7) does, when read
properly together with the relevant constitutional provisions. Rather, what section 396(7)
does when read properly with relevant constitutional provisions is to give a special
dispensation (interpreted by the court as doing something not otherwise permitted) for a
specific trial.
A very strong anchor of the Supreme Court’s reasoning is its approach to the
interpretation of section 253 of the Constitution and it is acknowledged that the provision
poses the biggest challenge to the contention of this paper. Section 253 of the 1999
Constitution provides that: “the Federal High Court shall be duly constituted if it consists
of at least one Judge of that Court.’ This anchor of the reasoning is buttressed by
section 249(2) of the Constitution which provides that the Federal High Court shall
consist of the Chief Judge and such number of judges as may be statutorily prescribed.
Critically, however, these provisions would only debar an elevated judge if they truly

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mean that he has ceased to be a judge of the Federal High Court – for all purposes.
These constitutional provisions themselves do not by their own terms lend support to a
conclusion that an elevated Federal High Court judge cannot sit as a judge of the
Federal High Court for a special purpose and with legally provided dispensation. This
was indeed the approach taken by the Court of Appeal but which the Supreme Court
rejected.
In light of the particular terms of the provisions of section 253 of the 1999 constitution,
perhaps the truly key question which needed to be examined more carefully is whether
a judge of the Federal High Court who has been elevated to the Court of Appeal can yet
be regarded as a judge of the Federal High Court in any circumstances at any time at
all. It is submitted that section 253 permits of such an interpretation. At the time of
elevation, the judge was evidently qualified and was indeed a judge of the lower court;
he does not cease to be qualified by being elevated. This prompts a necessity for the
inverse question whether he is disqualified; well, there is no constitutional provision
which clearly or expressly disqualifies him – let alone disqualifies him for all purposes.
The Supreme Court relied only on its own previous decisions for holding him
disqualified. And here, lies the reason why the Supreme Court needed to have paid
greater attention to the argument that the law had changed. It is contended that the
Supreme Court should have exercised greater caution and showed greater sensitivity
that the lawmaker in enacting section 396(7) of the ACJA must have been aware of the
court’s previous decision.
It is not unknown in Nigerian jurisprudence that the legislature sometimes makes an
enactment with the intention of modifying or moderating judicial jurisprudence as the
history of the seminal Lakanmi case teaches us; sometimes it is even legitimate and
justifiable. The issue of inordinate delay in Nigerian courts due to various factors
including, topically, elevation of judges is well known. It is quite obvious that the
enactment of section 396(7) ACJA is an attempt to deal with at least one source of such
delays. A very welcome effort that actually brings Nigerian jurisprudence on the point in
line with jurisprudence and practice in other respected common law jurisdictions. In fact
in England: ‘The judges of the Court of Appeal are the Heads of Division (the Lord Chief
Justice of England and Wales, the Master of the Rolls, the President of the Queen’s
Bench Division, the President of the Family Division and the Chancellor of the High
Court) and the Lords Justices of Appeal ….’ https://www.judiciary.uk/about-the-
judiciary/who-are-the-judiciary/judicial-roles/judges/coa-judges/
The fact that the Nigerian constitutional provisions do not by their terms, at least not
expressly, debar an elevated judge from sitting in his prior court upon elevation coupled
with a statutory provision that expressly allows him to do so for a special purpose by
dispensation demanded greater scrutiny. The admirable purpose of section 396(7)
ACJA and the reality of inordinate delay in the Nigerian judicial system also demanded

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greater scrutiny and an absolute conviction and clearer demonstration of inconsistency.
In essence, barring a hard-line interpretation of section 253 of the 1999 Constitution, the
Supreme Court’s decision simply boils down to saying previous judicial authority had
held that an elevated judge ceases to be a judge of his prior court. If section 253 is read
in accordance with its own terms and construed as simply meaning that a judge of the
Federal High Court is a judge duly appointed to that court, which may be permanently or
specially, the supposed inconsistency of section 396(7) disappears. And the Supreme
Court would not even need to overrule itself.

iii. The Relevance of Section 290 of the 1999 Constitution

Ultimately, the specific constitutional provision that the Supreme Court held section
396(7) ACJA to be inconsistent with is section 290 of the 1999 Constitution. The
element of the provision relied on by the Supreme Court is the provision that a person
appointed to any judicial office shall not perform the functions of the office until he has
taken the Oath of Allegiance and the Judicial Oath; the section also now includes
requirements relating to declaration of assets. The court held that it had interpreted the
previous equivalent of this provision (s. 254 of the 1979 Constitution) to mean that a
person elevated to a higher court ceases to be a judge of the court from which he was
elevated.
On the other hand, according to its own terms and discernible intendment, section 290
of the Constitution would have been more relevant in the context of whether the
elevated judge could start performing his functions as a judge of the Court of Appeal. It
could also be relevant in the context of a question whether the judge had previously met
the preconditions for the exercise of his functions as a judge of the Federal High Court.
Neither of this was in issue in this case and the stridently hostile attitude displayed in
the latter part of the judgment towards section 396(7) of the ACJA as being intended to
usurp section 290 of the Constitution is, it is respectfully submitted, unwarranted.
It is both telling and mildly perplexing at the same time that section 290 is the specific
provision that section 396(7) ACJA was held to be inconsistent with; simply, a provision
that the Supreme Court had interpreted in a particular way – before a statutory, or at
least a purported statutory, change to the law. A stronger case could have been made
that section 396(7) ACJA is inconsistent with section 253 of the Constitution but the
argument in this paper has shown that the two provisions are not necessarily
inconsistent. In fact, it is suggested that section 396(7) ACJA can not only be
interpreted in a manner consistent with but indeed also complementary to section 253 of
the Constitution while, strictly, it is unaffected by the separate issue of preconditions for
the performance of the role of the position to which a judge has been appointed. It is
difficult to escape a conclusion that a nebulous application of precedent seems to have
got in the way of greater and more careful constitutional and statutory analyses.

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Professor ’Gbenga Bamodu is a partner in the Lagos law firm Phillipsons Legal
Practitioners.