Are judges, lawyers undermining ACJA provisions?

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Are judges, lawyers undermining ACJA provisions?

The Administration of Criminal Justice Act (ACJA) 2015 provides strict time-lines for criminal trial proceedings and a limited number of adjournments. However, these provisions are rarely complied with. Deputy News Editor JOSEPH JIBUEZE highlights instances of such violations and speaks to experts on the way out.

 

Some recommendations

 

 

  •   Expand magistrates’ courts’ jurisdiction
  • Appoint more judges
  • Provide conducive environment/adequate infrastructure
  • Recruit more prosecutors to minimise workload
  • Provide adequate resources for ACJA implementation
  • Carry out holistic reform of the justice sector
  • Designate more courts to handle only criminal cases
  • Create special corruption courts
  • Amend the constitution give bite to ACJA provisions
  • Deploy technology to speed up court processes
  • Increase funding

 

 

A STRONG tap behind the door connecting the judge’s chambers to the courtroom alerted lawyers and litigants that he was ready to sit.

‘Court!’ bellowed the registrar as everyone rose.

Justice Rilwanu Aikawa walked in, took a bow and sat.

A high profile case involving two former ministers was called for trial to begin. But it could not go on. Why?

The second defendant, former Aviation Minister Chief Femi Fani-Kayode, was absent. His lawyer informed the court that his client was “indisposed.”

Rather than adjourn to the following day as required by law, the judge shifted the case for 16 working days.

Fani-Kayode has been on trial with former minister of state (finance) Mrs Nenadi Usman since 2016. They were key members of the Goodluck Jonathan Presidential Campaign Organisation in 2015.  Fani-Kayose was in charge of publicity; Usman was in charge of finance.

The Economic and Financial Crimes Commission (EFCC) arraigned both on June 28, 2016 before Justice Muslim Hassan of the Federal High Court in Lagos for alleged money laundering.

However, the case, like several others, is yet to be decided.

This is partly due to non-compliance with Section 396 of the Administration of Criminal Justice Act (ACJA) 2015.

Section 396 (3) (4) (5) and (6) of the ACJA provides: “Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial.

“Where day-to-day trial is impracticable after arraignment, no party shall be entitled to more than five adjournments from arraignment to final judgment provided always that the interval between each adjournment shall not exceed 14 working days.

“Where it is impracticable to conclude a criminal proceeding after the parties have exhausted their five adjournments each, the interval between one adjournment to another shall not exceed seven days inclusive of weekends.

“In all circumstances, the court may award reasonable costs in order to discourage frivolous adjournments.”

A review of the Fani-Kayode/Usman case shows non-compliace with the provisions of Section 396.

They pleaded not guilty to a 17-count charge of laundering about N4.6billion.

They were charged along with former Chairman, Kagarko Local Government Area, Kaduna State, Yusuf Danjuma and a company, Jointrust Dimentions Nigeria Limited.

Midway into the trial before Justice Hassan, Fani-Kayode accused the judge of bias.

He claimed that the judge, being a former Head of EFCC’s Legal Department, would not be fair to him.

Consequently, Justice Hassan, on March 16, 2017, recused himself. Between arraignment and Justice Hassan’s recusal, nearly nine months passed.

On May 15, 2017, Fani-Kayode and his co-accused were re-arraigned before Justice Aikawa.

Rather than ordering day-to-day trial in line with Section 396, Justice Aikawa adjourned until June 7, a period of 16 days working days.

Afterwards, Fani-Kayode challenged the court’s territorial jurisdiction. The development stalled the trial on June 7, 2017 and the application was heard on June 21, 2017.

For over 79 days, no trial was held as the case was adjourned for ruling.

On September 26, 2017, Justice Aikawa refused Fani-Kayode’s prayer to transfer the case to Abuja.

The case has since suffered several other ACJA violations. For instance, on December 5, 2017, Mrs Usman got an adjournment to enable her travel abroad to treat “breast cancer”. The case was adjourned until January 31, 2018, for 42 working days.

On January 31, 2018, Fani-Kayode was absent. His lawyer, Mr Norrison Quakers (SAN), told the court that the defendant complained about “heart-related pain”.

The case was adjourned until February 28, 2018, a period of 23 working days.

Trial held on February 28, February 29, March 1 and March 2, 2018, after which the case was adjourned until June 11, 2018 for 70 working days.

On June 11, the court heard that Mrs Usman filed an application seeking to cite minister of information Lai Mohammed for contempt for publishing her name as a looter.

Meanwhile, the trial could not proceed that day because a pregnant prosecution witness was said to be on bed rest.

Justice Aikawa adjourned until October 2, 2018, a period of 82 days, although the intervening period included the court’s annual long vacation.

Mrs Usman’s lawyer, Chief Ferdinand Orbih (SAN), argued that the application ought to be heard before trial could proceed. On October 2, 2018, the contempt application was heard.

The case was adjourned until November 16, 2018 for ruling. No trial held during the 33 working days in-between.

On November 16, Justice Aikawa dismissed the contempt application against Lai Mohammed.

Twenty-five working days later when the case resumed on January 24, Chief Orbih and Mr Abiodun Owonikoko (SAN) were absent.

The development forced an adjourned until February 4 and 5. The case came up on both days, and was adjourned until February 20 and 21.

On February 21, Mrs Usman was granted permission to travel overseas for medical treatment. The case was adjourned until March 15.

On May 2, the trial was stalled because Danjuma was absent. His lawyer told the court that the defendant collapsed in the bathroom and was hospitalised.

On May 14, EFCC sought to tender some statements made by Fani-Kayode and Usman through a witness, but defence counsel opposed it, contending that they wrote the statements under duress.

The case was adjourned until May 31, but Fani-Kayode was absent that day. He was said to be “indisposed”.

Justice Aikawa adjourned until June 24, 2019 for 16 working days. That day, he dismissed the objections and adjourned until July 4 for continuation of trial.

On July 4, after an EFCC investigator Shehu Shuaibu testified, Justice Aikawa adjourned until October 29, 2019 for continuation of trial.

The court began its annual long vacation on July 8, and resumed on September 16.

Fani-Kayode and Usman’s trial will resume 32 working days after the court’s vacation ended.

Yet, without a final judgment, the case has dragged on for 829 working days.

 

Is section impracticable?

 

Legal experts have attributed the non-compliance with the ACJA provision to a number of factors, such as docket congestion, and insufficient number of judges and prosecutors.

Former Chief Justice Walter Onnoghen had directed heads of courts to designate some courts to handle solely criminal cases.

But it was observed that while a few judges handle most of the corruption cases, such courts are still burdened with commercial and civil cases.

A former Nigerian Bar Association (NBA) President, Chief Wole Olanipekun (SAN), believes that day-to-day hearing of cases is not practicable.

He has been involved in several high profile criminal cases, and led the team that represented former Chief Justice Onnoghen at the Code of Conduct Tribunal (CCT).

He said ACJA does not take into consideration Nigeria’s infrastructure and human resource challenges.

He said: “While promulgating the ACJA, the National Assembly, in my humble view, did not consider the realities of our legal and court environment.”

He said the National Assembly adopted the Lagos State version of the law without soberly reflecting on whether it could work in Nigeria.

“How do we expect a judge who has a minimum of 30 cases on his cause-list in one day – both civil and criminal – to comply with the unrealistic provisions of Section 396(3)(4)(5) of the ACJA?

“Can the judge turn himself to the Biblical Joshua who commanded both the sun and moon from moving until he completed his assignment? Are the other criminal and civil cases before the judge not equally important?

“Do we have enough judges on ground to implement these grandiose provisions? Are the courtrooms available?

“Note that most of the courtrooms where Nigerian judges sit to administer justice are not good for human habitation.

“Even if the courtrooms are available, what of other wherewithal, including regular electricity supply, audio recording of court proceedings, security personnel, etc?” Olanipekun asked.

 

The numbers

 

No fewer than 116, 623 cases are pending in the 36 divisions of the Federal High Court as at June 2019. They include 37,228 civil cases, 30,529 criminal cases, 33,564 motions and 15,302 fundamental rights cases.

There are 10,108 cases pending in the Lagos Division alone as at June 2019. Twelve judges sit in the Division.

They are Justices John Tsoho (Acting Chief Judge, Court One), Mojisola Olatoregun (Court Two), Abdullah Liman (Court Three), Saliu Saidu (Court Four), Ayokunle Faji (Court Five) and Rilwanu Aikawa (Court Six).

The rest are Maureen Onyetenu (Court Seven), Chukwujekwu Aneke (Court Eight), Oluremi Oguntoyibo (Court Nine), Chuka Obiozor (Court 10), Nicholas Oweibo (Court 11) and Muslim Hassan (Court 12).

Annual returns of cases at the Lagos Division as at June 2019 shows that there are 191 pending cases in Court One, including 56 civil cases, 37 criminal cases, 84 motions and 14 fundamental human rights matters.

In Court Two, 249 cases are pending, including 120 civil suits, 36 criminal matters and 13 fundamental human rights actions.

In Court Three, 702 cases are pending: 409 civil, 146 criminal, 18 motions and 129 fundamental rights cases.

Court Four has 866 pending cases, of which 357 are civil, 144 criminal, 252 motions and 113 human rights matters.

Court Five has 1,452 cases, comprising civil, 199; criminal, 243; motion, 833 and fundamental human rights, 186.

Court Six has 1,260 pending cases. Civil cases are 424; criminal, 296; fundamental human rights, 307 and motion, 233.

Court Seven has 1,602 pending cases, including civil, 551; criminal, 147; motion, 561 and fundamental rights, 343.

In Court Eight, a total of 714 cases are pending, comprising 84 civil actions; 77 criminal cases, 534 motions and 19 fundamental rights cases.

In Court Nine, 839 cases are pending, including 618 civil actions, 122 criminal matters, one motion and 98 fundamental human rights suits.

Court 10 has 508 pending cases. They include 189 civil cases, 114 criminal matters, 204 motions and one fundamental rights case.

In Court 11, there are 1,215 pending cases, of which 94 are civil, 102 are criminal, 958 are motions and 61 are on fundamental human rights.

Court 12 has 510 pending cases. They include civil (167), criminal (56), motion (192) and fundamental human rights (95).

The Chief Judge performs mainly administrative functions from the court’s headquarters in Abuja and does not sit daily in Lagos.

Justice Onyetenu was deployed to the Election Petition Tribunal, meaning all the cases before her must wait until she returns.

Court sources say day-to-day hearing of criminal cases is not realistic considering the number of cases each judge deals with.

For instance, in Justice Aikawa’s court where there are 1,260 cases (the third highest), it will take him nearly three months to hear all the cases, and he must hear at least 18 cases per day.

Approximately 85 cases are said to be filed in the Lagos Division’s registry weekly. In effect, about 2,380 cases are added to the already congested docket monthly.

Assuming the cases are assigned to the judges equally, it means each judge will have over 200 cases added to their docket monthly.

Deputy Registrar in charge of Administration and Litigation, Christine Ende, confirmed the figures, but referred our correspondent to the information unit.

The information unit explained why it is difficult for judges to comply with Section 396.

It said: “The constitution allows for a maximum of 100 judges for the Federal High Court. Presently, the court has 83 judges.

“Many factors are considered in the appointment of judges, such as housing, offices, vehicles, etc. The court’s budgetary allocation has been going down due to yearly cuts.

“The Lagos Division has greater work. The ongoing construction of 20 courtrooms in Lagos has not been completed due to poor funding.

“However, to achieve speedy trial, there is need for a constitutional amendment. Don’t forget that the ACJA 2015 spells out how criminal cases should be conducted.

“Some lawyers rely on the constitutional provision for fair hearing to delay cases. Sometimes, when judges stand firm, they are accused of bias.”

 

Other instances of violations

 

In several high profile criminal cases, recourse is never made to Section 396 during adjournments.

Such breaches were also observed in the trial of former Chief of Air Staff Air Marshal Adesola Amosu.

He is on trial with former Nigeria Air Force (NAF) Director of Finance and Budget Air Commodore Olugbenga Gbadebo and former NAF Chief of Accounts and Budgeting Air Vice Marshal Jacob Adigun.

EFCC arraigned them on June 26, 2016 for allegedly converting N21billion from NAF to their personal use. They pleaded not guilty.

Plea bargain talks failed and trial started before Justice Mohammed Idris, but it did not hold day-to-day as required by the ACJA.

Prosecuting counsel Rotimi Oyedepo, on October 24, 2016, accused the defence of delaying the trial.

Defence counsel Norrison Quakers (SAN) once sought an adjournment because he needed to cross-examine a witness based on documents in EFCC’s possession.

When Oyedepo offered to produce the documents in court to save time, the defence counsel refused to accept them, insisting they preferred to apply formally to EFCC after paying the prescribed fees.

Justice Idris adjourned until November 23, 2016, a period of 22 working days.

After a witness testified on December 15, 2016, the court adjourned until January 25 and 26, 2017, a period 24 working days excluding the week-long Christmas break.

Justice Idris, after the January 26 proceedings, adjourned until February 22, which was 19 working days.

Justice Idris made effort to ensure that trial held for at least three consecutive days before another long adjournment.

Following Justice Idris’ elevation to the Court of Appeal in June 2018, the case was re-assigned to Justice Chukwujekwu Aneke.

On October 15, 2018, the defendants were re-arraigned, but there was no day-to-day trial afterwards.

After a witness testified on March 7, Justice Aneke adjourned until April 15 and 16 – a period of 27 working days.

After the April 16 proceedings, Justice Aneke adjourned until May 22 and 23, which came to another 27 working days.

On May 22, defence counsel informed the court that plea bargain talks had resumed.

Justice Aneke adjourned until July 4 “for report of effort at plea bargaining”. The adjournment interval was 31 working days.

On July 4, Oyedepo and defence counsel traded blames over their inability to hold the plea bargaining talks.

Justice Aneke further adjourned until October 9, which comes to 18 working days after the court’s September 16 resumption date.

In all, about 103 working days have been wasted since the case was re-assigned to Justice Aneke due to failure to comply with the day-to-day trial requirement.

 

Consequences of violations:

 

Due to the failure to comply with Section 396, some cases which began after the law was enacted in 2015 have been transferred to new judges to begin de novo (afresh) due to elevation or transfer of judges.

Observers believe such loss of time could have been avoided had the trials been held day-to-day.

Cases involving former Federal Capital Territory Minister Jumoke Akinjide,

Senator Peter Nwaoboshi and former Ekiti State Governor Ayo Fayose suffered such fate. Witnesses will be recalled before the new judges.

It has also been observed that judges rarely award costs as required by the law to deter frivolous adjournments.

Joseph Otteh, Convener of Access to Justice, a leading NGO in justice sector, said the provisions of Section 396 have effectively become “nearly dead letter laws.”

He noted that some defendants are adept at stretching the trial process to breaking point by exploiting the procedure loopholes.

Otteh said: “As a practitioner, I’ve observed that these limitations are hardly referenced by courts and counsel in determining the next adjournments.”

According to him, it is difficult to take multiple witnesses daily when the docket is filled with other cases.

Otteh added: “We must make it more difficult to bring frivolous charges against people. This can help reduce dockets.

“We’ve got to eliminate man-made factors – courts not sitting because judges are attending a valedictory session, or are mourning a colleague or representing the Chief Judge at some ceremonial function, etc,”

 

A prosecutor’s perspective

 

Oyedepo said excess caseload and lack of cooperation of the defence with the prosecution are stumbling blocks.

He believes that attitudinal change is needed.

To illustrate, the Supreme Court, in a June 9, 2017 judgment on an appeal by former PDP National Publicity Secretary Olisa Metuh, validated Section 306 of the ACJA, which prohibits the stay of proceedings in criminal trials when there are interlocutory appeals on rulings.

Oyedepo asked: “Can you imagine that a legal practitioner who has the interest of his nation at heart will file an application for stay of proceedings, notwithstanding the Supreme Court decision in Metuh vs FRN, just to stultify trial?”

The EFCC lawyer does not absolve prosecutors of blame; some, he said, fail to put their houses in order.

“This often manifest when the prosecution serves the defence team with additional proof of evidence or amended charge on the date a matter is fixed for trial. If we agree to change our attitude, then we can overcome these challenges.”

Oyedepo believes more courts should be designated to handle only criminal cases as done by the Lagos State High Court.

He underscored the needed for an amendment of Section 396 to give it teeth.

“I will plead that our judges should do more in ensuring compliance with the provisions of Section 396. I will also recommend a slight amendment to Section 396.

“There should be a legislative intervention allotting number of days within which to conclude a criminal proceeding.

“This was introduced in the Electoral Act and it has being working. If it can work in electoral proceedings, then it can work in criminal proceedings too,” Oyedepo said.

 

EFCC: No complaints

 

Oyedepo prosecutes most ongoing high profile cases in Lagos. Aside Fani-Kayode/Usman and Amosu/others, he also prosecutes Rickey Tarfa (SAN), Paul Usoro (SAN), Justice Rita Ofili-Ajumogobia, musician Naira Marley, former ministers Jumoke Akinjide and Prof Abubakar Suleiman and their co-accused.

He is also the prosecutor in the cases involving Atiku Abubakar’s son-in-law Abdullahi Babalele and his co-accused, former Independent National Electoral Commission (INEC) Chairman Prof Maurice Iwu, former President Goodluck Jonathan’s aide Waripamo Owei-Dudafa, former Nigerian Maritime Administration and Safety Agency (NIMASA) Managing Director Patrick Akpobolokemi and his co-accused, former Nigeria Airspace Management Agency (NAMA) Managing Director Ibrahim Abdulsalam, among others.

Yet, EFCC spokesman Wilson Uwujaren does not think Oyedepo is overworked.

On whether the commission plans to increase the number of prosecutors in Lagos, he said the anti-graft agency has no problem prosecuting cases efficiently with the available manpower.

He said: “Has Oyedepo complained to you that he is overworked? The choice of counsel to handle specific case is the prerogative of the Commission.

“All EFCC cases in court are being prosecuted diligently within the limits of our resources.”

 

Making Section 396 work

 

Rule of Law Advisor to the President, Office of the Vice President, Dr Fatima Waziri-Azi, said it is not only full court dockets of judges that make the section impracticable, but congested dairies of prosecutors.

To effectively implement Section 396, she said there is the need to establish special courts to hear only corruption cases.

“The creation of special courts is a common phenomenon all over the world and the advantages include increased efficiency and greater expertise.

“Rather than have one judge hear different cases, the establishment of special courts will help streamline the judicial process,” she said.

Waziri-Azi said for day-to-day trial to be achieved, more judges and prosecutors are needed; court facilities must also be improved.

“Clearly, judges as well as prosecutors are over-burdened with cases. As such, the appointment of more judges will ease their burden, which in turn will free up the dockets.

“The recruitment of more prosecutors would help minimise the caseload on individual prosecutors.

“In addition, it also means improved welfare packages for judges, court personnel and prosecutors as well as improved court facilities,” she said.

Waziri-Azi suggested that Magistrates’ Courts should be empowered to handle some other classes of cases to reduce the burden on the high courts.

Human rights lawyer Jiti Ogunye said the ACJA stayed for nine years in the National Assembly before it was enacted in 2015. Stakeholders had ample time to ponder on its provisions but did not, he noted.

He was, however, of the view that inadequate resources made the section’s implementation difficult.

“For instance, the law was made on the assumption that judges will be sufficient in terms of number, and in terms of judges-cases ratio,” Ogunye said.

The lawmakers, he added, also anticipated that there will be adequate number of prosecutors to deal with cases efficiently and speedily.

Ogunye said: “How many prosecutors does EFCC have and how many cases does each of them handle?

“If you’re to check the statistics, you will be shocked that it is not five cases to a prosecutor.

“They’re charging people daily, but they’re not hiring, training and retraining prosecutors.”

The solution? The conditions must be right for Section 396 to work.

Ogunye said: “The ideal of speedy criminal justice administration is not restricted to our jurisdiction. It’s a global ideal.

“But the difference is that they (developed countries) have the resources to investigate efficiently, to prosecute effectively and to adjudicate seamlessly.

“Until we put our act together, we’ll have fine provisions in our laws, but non-compliance.”

He does not think that establishing special courts will be the magic wand. He wondered whether there will be special courts for banditry, kidnapping and other crimes.

“In jurisdictions where corruption cases are handled with dispatch, which special courts do they have?

“I am calling for a holistic rethinking of our criminal justice system, enhancing our investigation resources, our prosecutorial tools, and our adjudicatory processes, because it’s a chain.”

Like Ogunye, Chief Olanipekun believes Nigeria’s justice system needs an overhaul.

“All we need to do is to revamp or restructure the entire administration of justice architecture in this country, both civil and criminal, so as to pave way for a smooth and speedy justice delivery system,” he said.

The SAN faulted Section 396, saying it was not only well thought-out; some of its provisions are, to him, unconstitutional.

Olanipekun said: “Nobody should be blamed for the non-compliance with the unrealistic and unattainable provisions of Section 396.

“I beg to disagree that the illusory provisions are being breached. Rather, my position is that they cannot be implemented. No good law enacts what is impossible.

“The National Assembly should go back to the drawing board to make a realistic law for the administration of criminal justice within its own sphere of influence or constitutional competence.”

Justice Tsoho, speaking at an event to mark the beginning of the 2019/2020 legal year, underscored the need to appoint more judges.

The Chief Judge said: “About 116,623 cases are pending in the Federal High Court; 16,144 cases were filed in this quarter alone in which 12,692 have been disposed of.

“It is obvious that the judges were over-burdened with work in the last legal year. We, therefore, need to engage more judicial officers to help out.

“However, it does appear that there was no provision for appointment of judges in the current budget.

“I will make effort to discuss with the relevant stakeholders to see to the possibility of facilitating the recruitment of more judicial officers in the course of the year.”

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