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Designated Special Courts are superior courts of record, By Obabueki Iyalekhuosa Davidson

By News Express on 06/05/2018

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•CJN, Justice Walter Onnoghen
•CJN, Justice Walter Onnoghen

The directive issued by the Chief Justice of Nigeria (CJN), Justice Walter Nkanu Samuel Onnoghen, to all chief judges of the various states – to designate special court(s) in their jurisdiction for the sole purpose of handling corruption cases – seem not to have conveniently drained down the throat of some lawyers. The said directive has rather developed ullage by some dissatisfied lawyers, who hold unto its droplet and make mountainous and misleading interpretations, according to each hold of it they get in bits.

The Chief Justice of Nigeria issued the order on the 18th of September, 2017, to mark the beginning of the 2017/2018 Legal Year for the Judiciary. The said statement did not see many a lawyer accept the order to take to heart as right, rather they puked its content back on the purported basis of its illegality: being unconstitutional. As lawyers are entitled to their opinions, they should not in guise of enlightenment convulse the thoughts of the ordinary man, as they may have had theirs in that light.

I seek to decant the legal opinions peddled by some lawyers to firm avowal of law. The contention as to whether the Chief Justice of Nigeria have the powers to create a special court, or order the chief judge(s) of a state to do same, is refreshingly rebutted by the submission that neither the CJN nor chief judge of any state can create any court as special court(s). Rather, they can at best designate from existing court(s), special court(s) to try corruption cases. It is further submitted that the exercise of the latter powers does not amount to a stitch in the provisions of the Constitution of the Federal Republic of Nigeria 1999, as amended.

Granted as it may seem, that the whole Penelope web stems from the words create and designate; it may not be alluded by some lawyers as such, as not even the shadows of these words are akin, let alone having their meanings tangle.

According to Black's Law Dictionary: Free Online Legal Dictionary (2nd Ed), to create simply means “to bring into being; to cause to exist; to produce.” The Cambridge English Dictionary, on the other hand, describes the word designateas, “to say officially that a place or thing has a particular character or purpose.” The interesting flavour culled from the above is in essence the oracle of this article.

The provisions of the Constitution of the Federal Republic of Nigeria (CFRN) 1999, as amended are: That the National Assembly or any House of Assembly of a State is empowered to establish courts with subordinate jurisdiction to that of a High Court as laid claim to by (section 6 (4) (a) CFRN).

Apparent in this provision is the exclusiveness of the powers of the National Assembly or State Houses of Assembly to establish or create courts (whether special courts or otherwise), albeit with subordinate jurisdiction to the high court. Thus, any court created by the National Assembly or a State House of Assembly is constitutionally regarded as inferior courts of record pursuant to section 6 (3) and (5) (j & k) of the Constitution of the Federal Republic of Nigeria. Thoughtfully, the provisions of the above-named section do not in any way implore the Chief Justice of Nigeria or chief judge of a state to create special courts. As a matter of fact, and contrary to the propositions of some lawyers, there is nothing unconstitutional about it, as the section in itself does not empower in whatever form the Chief Justice of Nigeria or chief judge to create special courts.

The copious provisions of the law regarding the chief judge designating courts as special courts for the purpose of handling corruption-related cases is unalloyedly unfettered by seasonal reasoning. This position of the law has not changed and as such should not be soiled by misery-makers and uncultured tongues, to the extent to which it has been settled. Pursuant toSection 19 (3) of the Economic and Financial Crimes Commission Act, “The chief judges of the Federal High Court or a High Court of a state or the High Court of the Federal Capital Territory, Abuja, as the case may be, shall by order under his hand, designate a court or judge or such number of courts or judges as he shall deem appropriate to hear and determine all cases under this Act or other related offence arising under this Act.”

As a thing of necessary implication, the CJN is empowered by virtue of his office – being the first amongst equals of the Justices of the Supreme Court and the head of the National Judicial Council (NJC) – to issue directives to chief judges of the various states or further reaffirm the position of the law thereof.

In a delicate mission not to avert the above statement of law the CJN, carefully as pointed out in his directive, ordered chief judges of the various states to designate special court(s) in their jurisdiction. In other words, he simply meant that they are to officially reserve from an existing court (place) in their jurisdiction or division, special court(s) to specifically handle corruption-related crimes and cases. It will, therefore, be thoughtless to state that based on the CJN’s directive, all chief judges of various states cannot designate a court as special courts, flowing from the above section.

This representation does not in any way translate to establishing or creating or bringing into being a court that was not. It suffices as well to say that a high court of a state (a superior court of record), whose commercial division previously co-opted as such, now designated as special court will no less make the said court a creation of the National Assembly or houses of assembly of a state, rather a shift in jurisdiction may have taken place, and that in no way translates to altering the legal framework and superiority record status of that division, being one part of the high court and, as such, a superior court of record.

Simpliciter! While the National Assembly is saddled with the legal and bounden duty to establish courts (inclusive of special courts) that were not in existence, though with subordinate jurisdiction to superior courts, the chief judge is by law bound, where necessary, to designate or appoint or put aside or reserve a court already in existence and in full operation as special courts.

Emphatically, the designated special courts for corruption cases is a superior court of record, since there is only a shift in the case-load of judicial personnel’s to only matters of corruption, and not merely in the creation of a special court per se.Cautiously, critic-mongers should endeavour, before hurling brickbats at a statement, to have properly moulded same to fill the holes picked in it, lest they leave a dent on the statement.

Fortified by the above representations, it is my unexpurgated submission that, based on the order of the Chief Justice of Nigeria to the chief judges of various states that they designate special courts in their jurisdiction, aimed at handling corruption cases, reference to special courts properly so designated includes: the Federal High Court or State High Court or High Court of the Federal Capital Territory. It is my further submission that the Court of Appeal, the Supreme Court, and magistrate courts, or any other inferior courts of record, are not special courts properly so designated as far as corruption related matters or causes are concerned.

This statement of fact has found bearing in the place of the law, and thus not crowded out in the law’s place, as that has been quickly and suffusely taken care of in section 19(1) of the Economic and Financial Crimes Commission Act, that “The Federal High Court or High Court of a state or the Federal Capital Territory has jurisdiction to try offences under this Act.”

Credibly, the definite article ‘the’ in the above provision makes it expressly specific in whose jurisdiction the chief judge is to designate such special courts. It goes further without a thimbleful of doubt that the express mention of one thing implies the exclusion of others not mentioned (expressio unius est exclusio alterius), that only the Federal High Court or High Court of a State or the Federal Capital Territory has jurisdiction to handle corruption-related cases or offences under the Act, and not the Court of Appeal or Supreme Court nor the Magistrate courts. As there are always intentions behind the actions of men, the CJN must have considered moulding the clay for the designation of special courts before giving it the breathe of the law as contained in section 19 (2) (b) (c) of the Economic and Financial Crimes Commission Act, to the effect that: “The court shall have power, notwithstanding anything to the contrary in any other enactment…

(b) “To ensure that all matters brought before the court by the commission against any person, body or authority shall be conducted with dispatch and given accelerated hearing…

 (c) “To adopt all legal measures necessary to avoid unnecessary delays and abuse in the conduct of matters brought by the commission before it, or against any person, body or authority.

This provision is meant to foresee a court already designated as special court adjudicating over corruption related crimes or cases as it were, as judicial personnel or judges pigeon-holed for that purpose shall endeavour that the matters brought before them are conducted with dispatch and given accelerated hearing. If it were not the case, a normal court (non-special courts or civil courts handling corruption-related cases) will obviously not perform same or carry out its function in that regard with such dispatch, and there may not have been a need specifically prompted by law that the courts in question catalyse cases brought before them. If, otherwise, there may not have been need as well for an initiation order by the Chief Justice of Nigeria to chief judges of the various states that they designate courts in their jurisdiction as special courts.

On a conclusive but not final note, the clamour for the establishment of special courts to try corruption cases has been on for some time, and the executive bill for the creation of the courts lingers like a heap of clothes on the floor of the National Assembly for over one year now.  It is on this basis that I call on well-meaning Nigerians, inclusive of lawyers sworn to remain dye-in-wool, to support the policy and give it a try. And, in the event that the purport for which it was set up is compromised, know that we will be the first to take the authorities to task.

Source News Express

Posted 06/05/2018 10:19:31 PM

 

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