Is Section 396(7) of the Administration of Justice Act 2015 Truly Inconsistent with the Nigerian Constitution or Was the Supreme Court Wrong?
, the Nigerian Supreme Court declared section 396 of the Administration of Criminal Justice Act 2015 to be inconsistent with provisions of the Nigerian Constitution of 1999. Specifically, the Supreme Court held that section 396 of the ACJA is inconsistent with section 290 of the 1999 Constitution and that it is thus void to the extent of that inconsistency.
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:
It is contended that by the terms of section 396 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 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 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 does, when read properly together with the relevant constitutional provisions.
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.
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