By Chief Mike Ozekhome, SAN, OFR
I have read and watched, with incredulity, the needless hoopla and rocuss generated by the Supreme Court’s ruling staying further proceedings in the Saraki trial before the CCT. Some Lawyers who disagreed with the ruling, have, surprisingly in very scathing language, denigrated and tongue lashed the apex court, almost in the manner a headmaster would, of a kindergarten’s puerile behavior.
That should not be so. Sure, we can disagree with decisions of the Supreme Court, even criticize them. But the language must be moderate, temperate and decorous. But, to describe a decision by the Supreme Court as illegal, brazen and bizarre, is, to me, descending into the realm of uninformed mob hysteria unbefitting of learned members of the noble profession. Such a stance may unwittingly intimidate or browbeat the apex court into submission; and were this to happen, then it’s good bye to the independence and sanctity with which the apex court is held.
What has irked these critics is that the Supreme Court committed “illegality” in a bizarre manner (never heard of a court, let alone the Supreme Court, committing illegality!). It may err in its judgment or ruling, but certainly cannot be accused of illegality.
Surely, as Justice Cardoso once postulated, the prophesy of what the courts will do and nothing more pretentious, is what is meant by law. Thus, law when enacted, remains law on paper, inanimate and bony, until it is animated with the luminous flesh of interpretation. That is why it remains solely within the realm of courts to interpret the law (section 6, 1999 Constitution, as altered).
Section 306 of the Administration of Criminal Justice Act (ACJA), 2015, provides laconically thus: “an application for a stay of proceedings in respect of a criminal matter before the court shall not be granted”. The lucidity and clarity of this prosaically worded provision is too obvious to admit of any ambiguity or hair splitting.
It must be noted that the trial of Saraki, which is currently before the CCT, is not before the Supreme Court of Nigeria. What is before the apex court is an appeal from the decision of the Court of Appeal pertaining to jurisdiction of the CCT alone. From the plain wording of section 306, the ACJA does not apply to the Supreme Court of Nigeria, or any other appellate court for that matter, but to the CCT”.
The Law remains that an accused’s right of appeal is a constitutional right, which cannot be abated, compromised, whittled down, or nimbled at. While section 233 (2) (a) of the 1999 Constitution provides that an appeal shall lie from the decisions of the Court of Appeal to Supreme Court as of right where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings before the Court of Appeal, section 241 (1) (a) provides for similar provisions in respect of appeal from the Federal High Court, National Industrial Court, High Court of a State, High Court of the FCT, Abuja, Sharia Court of Appeal, etc. an appeal under the Constitution could therefore be interlocutory or substantive.
The Supreme Court in the case of Eyesan v. Sanusi (1984) LPELR-1185 (SC), warned that the “right of appeal to the Court of Appeal is a constitutional right exercisable by a party in a civil case. See section 222(a) and (b) of the 1979 Constitution. The right exercisable against another person who has complaints touching his civil rights and obligations against another person, government under section 236 (1) of the 1979 Constitution. Once the exercise of this right of action has commenced, the exercise is not completed until the action is finally and completely determined by the court of 1st instance or the appeal court.”
The right of appeal which was preserved by the Supreme Court in the stay of proceedings in the Saraki case is thus sourced directly from the Nigerian Constitution, not from the ACJA, a mere inferior Statute. It is common knowledge that the Constitution is the supreme Law, and is superior to any other legislation. And where the provisions of any other law are inconsistent with the provisions of the Constitution, such law will be void to the extent of such inconsistency”. (section 1(3) of the 1999 Constitution). See the Supreme Court cases of The State v. Femi Oladotun (2011) LPELR 3226 (SC). N.E.M.G.I.A. v. J.O. Uchay (2011) LPELR-1961 (SC).
Ex abundante cautela, section 4(8) of the 1999 Constitution (as altered), specifically provides that “the National Assembly or a House of Assembly shall not enact any Law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law”. To the extent that section 306 of the ACJA purports to oust the jurisdiction of the court from entertaining interlocutory appeals, such as stay of proceedings, it is to that extent void.
The powers of the Supreme Court to decide a case to finality therefore cannot be abrogated or ousted by any legislation subordinate to the Constitution. The Supreme Court is not in the habit of making orders in vain and it possesses undoubted powers to correct itself whenever it errs and Counsel approach it for a review.
Once the Legislature has passed Laws, the function of interpreting such Laws falls within the realm of the courts. Even the High Court or Federal High Court is pre-eminently qualified to strike down the provisions of the ACJA for being inconsistent with section 6(6) and 36 of the 1999 Constitution, the latter of which guarantees fair hearing.
A Law that takes away a litigant’s right of appeal for whatever reason, and at whatever stage is a bad and anachronistic law that must be struck down. Such a law is dead on arrival. To wait till a person’s rights have been determined before he appeals at the end of the case is an invitation to anarchy and self immolation. God forbid a replication of Bello vs. A.G, Oyo state (1986) 5 NWLR (pt 828) 1.
The Supreme Court is not final because it is infallible. Rather, it is infallible because it is final.
In ADIGUN & ORS. V. THE GOVERNOR OF OSUN STATE & ORS. (1995) LPELR-178(SC), the Supreme Court, on the finality of its decision held: “This case has clearly illustrated the futility of challenging the decision of this Court, as the apex court in the hierarchy of our court system.
The finality of the decisions of the Supreme Court in civil proceedings is absolute unless specifically set aside by a later legislation. The justices that man the Court are of course fallible but their judgments are, as the Constitution intends, infallible. Therefore any ingenious attempt by counsel to set aside or circumvent the decision of the Supreme Court will be met with stiff resistance.” Per UWAIS, JSC. (Pp. 29-30, paras. C-A).
“The super nature of the Supreme Court was underlined in Architects Registration Council V. Fasasi (NO. 4) (1987) 3 NWLR (part 59) 42, where ESO J.S.C said: “In the Supreme Court, the decision of that Court in so far as that case is concerned is final for all ages…it is final in the sense of real finality. It is final forever. Only a legislation ad hominen can alter it.
The Supreme Court, and it is only the Supreme Court, that may depart from the principle laid down in their decision in the case in future cases, but that does not alter the rights, privileges or detriment to the parties concerned, arising from the original case. Such is the constitutional power of the Supreme Court that learned counsel, probably rightly, wondered if the Justices of the Supreme Court were supermen.
Let me answer the question. The Supreme Court, deliberately meant and made to be so by the organic law, and the Justices of the court, now only to that extent of their decision are supermen, meant to be so and so made by the constitution. Of course, neither the Court nor the Justices are meant to, or could even be infallible.
But the price paid for finality in litigation is that the notion or the dread of infallibility has been sacrificed by the Constitution on the altar of finality. The society can never be stable if there is no such finality in litigation. It is, I very respectfully hold, desirable to have such finality. Notwithstanding the price paid for it”.