Why do cases still drag in court despite the coming of the Administration of Criminal Justice Act (ACJA) 2015? The law is supposed to check delays, but it has not achieved that in its two-year existence. Stakeholders in the justice sector gathered in Abuja to ascertain where the problem lies. According to speakers, progress would be made if judges showed more courage, firmness and did not indulge “tricky” defence counsel. Keynote speaker Justice Helen Ogunwumiju of the Court of Appeal listed what judges must do to change the negative perception of the judiciary. JOSEPH JIBUEZE reports.
The Administration of Criminal Justice Act (ACJA) of 2015 was enacted to address delays in criminal trials. Despite the law’s provisions, cases still drag in court.
The target time frame to conclude a trial under the ACJA is 180 days.
But, several cases that began since the law took effect are yet to be decided.
Section 396 (3) of the ACJA provides that trial shall be day-to-day until judgment.
Section 396 (4) says where day-to-day trial is not practicable, each party is entitled to five adjournments of not more than 14 working days interval.
After exhausting the five adjournments, every other adjournment shall not exceed seven days interval.
The overall objective is to ensure that a trial commences within 30 days of filing a charge and is completed within 180 days after arraignment.
Speakers at a capacity building workshop organised for judges, magistrates, area court judges and registars in Abuja agreed that the courts must do more to enforce the ACJA.
The workshop’s theme is: Application of Practice Directions on the Implementation of the ACJA 2015.
It was organised by the Presidential Advisory Committee Against Corruption (PACAC) in collaboration with the High Court of the Federal Capital Territory.
Speakers said it required courage and firmness on judges’ part to enforce the ACJA.
According to them, while defence counsel would seek adjournments at every opportunity in a bid to delay cases, using all manner of excuses, it behooves the judges to take control of their courts and not tolerate such shenanigans.
The four-day workshop had 14 sessions featuring group presentations, training on case management and control of court and proceedings, role of judges and registrars, among others.
Wanted: Stricter judges
The keynote speaker, Justice Helen Ogunwumiju of the Court of Appeal, urged judges to take firm control of their courts so the judiciary does not become the weakest link in law enforcement.
She said trials sometimes got so “complicated” and “hydra headed” because judges allowed lawyers “to run the show”.
For instance, she suggested that a judge should not grant an adjournment on the basis that an absent Senior Advocate of Nigeria (SAN) would prefer to handle a case himself.
The SAN has juniors who are qualified lawyers, so they should handle the case on their principal’s absence, she said.
She told judges: “Don’t allow anyone to abuse your leniency. Don’t be fearful. Part of being a SAN is to have a junior.”
She noted that due to lack of firmness by judges, the trial process is sometimes hijacked and judges become helpless “in the face of various manoeuvres of the defendants and sometimes their high-powered expensive lawyers.”
Most High Court judges, Justice Ogunwumiju said, have had to adjudicate on cases involving high-profile defendants who come up with “all manner of tricks” to avoid taking a plea at the arraignment stage.
“All manner of objections are raised at this stage. There are such trials that are yet to leave the plea stage, some even into well over four years after they have been filed, which is contrary to the spirit of the constitutional mandate of Section 36 (1) for speedy trial and fair hearing,” she said.
What should judges do in such circumstance? Justice Ogunwumiju recommended: “Some (defendants) say that they are physically unfit to stand trial. Remand them at the state hospital until a doctor gives them a clean bill of health.
“If they claim to be mentally ill, remand them at a state mental institution. They will become well in a hurry. The panacea is to be firm.”
In a situation where a defendant refuses to enter the dock on the excuse of challenging the charge, Justice Ogunwumiju said the court should refuse to entertain any application by the defendant.
“It is not unusual to find that a defendant may, on the advice of his counsel, refuse to enter the dock, thereby refusing to submit to the jurisdiction of the court.
“Order 3 Rule 3 of the Practice Directions provides that irrespective of any issues including but not limited to jurisdiction, bail, etc, the defendant shall be called upon to enter the dock and enter a plea.
“Where the defendant refuses to enter the dock to plead to the charges, the court shall refuse to entertain any application and where the defendant refuses to enter a plea, the court shall enter a plea of not guilty for him,” she said.
The Justice said an objection to the charge may be couched in terms of being invalid or disclosing no offence.
Section 396 (2) of the ACJA, she said, gives judges the discretion to adjourn ruling on such application until judgment.
‘Don’t be taken for a ride’
Justice Ogunwumiju emphasised that the fact that someone was granted bail is not a licence to allow a defendant and counsel to delay trial.
She said: “A defendant who fails to appear in court for myriad of reasons or excuses should be decisively dealt with. It is not a valid excuse that a defendant had to go for medical treatment.
“The medical appointment should not have been scheduled to clash with the court hearing.
“Religious obligations and the whipping up of religious sentiments not to appear to continue trial should not be tolerated.”
Justice Ogunwumiju recalled that she was a magistrate in Oyo, she would not hesitate in revoking bail when she felt that the defendant and his counsel “were trying to take the court for a ride”.
According to her, where the prosecution was ready with their witnesses, courts should not let the issue of bail delay the commencement of trial.
“Defence lawyers engage in all manner of tricks to delay trial. You are covered by Section 396 (2) of the ACJA. The court must stand its ground. Hear them but defer ruling till the end of trial,” she said.
‘Don’t grant stay of proceedings’
Justice Ogunwumiju said in no circumstance should judges grant stay of proceedings pending appeal in criminal trial.
According to her, the pace of appeal litigation is slow, arduous and discouraging.
An interlocutory appeal, she said, could take two years at a minimum to be decided. It would take a further three years at least at the Supreme Court.
Where a stay is granted, the defendant is assured of at least five years of breathing space, which she said has unfortunate consequences.
Witnesses, she said, could have died, have relocated, retired or coerced into silence, even as their memory could fade.
Investigating officers could also have relocated; exhibits could be lost. The judge may have retired, and trial may have to start all over before a new judge. The defendant would have had enough time to dissipate the proceeds of crime or cover his tracks.
Also, during the period that trial is suspended, the defendant may have, according to Justice Ogunwumiju, blackmailed the system by claiming witch-hunt, negotiated with or frustrated the prosecution, peddled political influence, or secured an appointment or won an election.
The solution? No granting of stay of proceedings, she said.
“What the trial judge needs to bear in mind is that the fundamental rights are not necessarily infringed by his refusal to stay proceedings as the defendant still has the option of applying for stay at the Court of Appeal and even the Supreme Court.
“The signs of the times dictate that absolutely NO STAY of proceedings should be granted pending the determination of the substantive matter.
“Most important to note is that whether you are presiding in the area court or magistrate court, do not grant an application for stay of proceedings,” Justice Ogunwumiju said.
The jurist said several trial-within-trials need not be conducted for several statements purportedly made by the defendants.
To her, as long as each statement is subjected to its own peculiar trial, it is possible to conduct one trial for all the statements.
“Your lordships should not stay proceedings if you overrule the objection of the defence to the voluntariness of the statement of the defendant even where the appellant goes on appeal,” she said.
In no-case submissions, the Justice said there would likely be an appeal where a ruling goes against the defendant, adding that an appeal on a no-case submission is one of mixed facts and law which require the leave of the High Court or the Court of Appeal.
“The High Court may refuse leave to appeal and proceed with the trial until or unless the Court of Appeal grants leave to appeal and stay proceedings. I recommend that the trial courts should give very short ruling on no case submission,” she said.
Avoiding frivolous injunctions
According to Justice Ogunwumiju, judges must be careful not to be swayed by “brilliant” arguments of counsel to grant perpetual injunctions against prosecution.
“Sometimes the arguments are ingenious and appear infallible and you are perhaps wont to be swayed by them. You must have at the back of your mind the need to do justice to the defendant, the victim and the state.
“In cases of corruption, you and I are the victims and we are part of the state,” she said.
She said granting an injunction stopping someone’s arrest or prosecution is like tying the hands of 180 million Nigerians from prosecuting one man.
Justice Ogunwumiju recalled that in the case of FRN vs Igbinedion, she had to disagree with the trial judge by refusing a motion asking for perpetual injunction restraining anti-graft agencies, the police and the Attorney-General of the Federation.
“I had at the back of my mind the seriousness of the offences and the implications of granting the outrageous prayers being sought by the defendants. I could not succumb to the very persuasive legal arguments of defence counsel.
“I urge my Lords: Be careful in grating injunctions that appear to bind the hands of the executive. That would be threading dangerously on the executive arm of government whereas the judiciary is supposed to enforce the doctrine of separation of powers,” she said.
The Court of Appeal Justice urged members of the Bench to always remember that justice is not just the application of bare law but an instrument of social justice and positive social change.
Award punitive cost
Section 396 (7) of the ACJA provides that “in all circumstances”, the court may award reasonable costs in order to discourage frivolous adjournments.
“My humble interpretation is that where the court notices that the prosecution or the defence seeks frivolous adjournments, it may award costs against the state or prosecutorial authority.
“Where the defendant is asking for adjournment for frivolous reasons, the court should revoke the bail and give good and lengthy reasons for doing so.
“Let the defendant go on appeal before or after the trial because the court revoked bail for good reasons,” Justice Ogunwumiju said.
She recommended that immediately a charge is brought before a judge, the court should build up a historical data, which would facilitate a periodic review of the court’s performance.
Another means of ensuring speedy trials, she said, is for the judge to consolidate rulings as opposed to delivering several rulings in a case before the substantive matter has even been dealt with.
‘Be above board’
The jurist urged judges to take firm control of their courts and constantly monitor staff to ensure that there are no corrupt activities.
“Most of us are too trusting or our staff. It is imperative that the judge is not detached because of the likelihood of money being collected in the name of the judge…The ability to walk tall is priceless.
“Judicial officers in this regard are expected to live above board and be free from undue political or monetary interference, remaining an unbiased arbiter.
“It takes four parties to have a successful prosecution – the complainant, the prosecution, the defence and the judge.
“As the judicial officer, we are to coordinate the other three. We have to be on top our game,” Justice Ogunwumiju said.
The jurist said judges must “muster the courage and the will” to utilise the ACJA to dispense justice as quickly as possible.
Judges, she said, should not be afraid of being overruled on appeal for standing firm.
“My brothers and sisters, don’t be threatened by lawyers saying they are going on appeal. Do what you think is right.
“If they don’t go on appeal, how will they know that you are busy sitting till 6 pm and burning the midnight oil writing judgments?” she said,
Justice Ogunwumiju urged judges to be get very acquainted with the ACJA and other laws such as the Evidence Act, as according to her, “an ignorant judge is a calamity for the innocent”.
“We must take back control of our courts. We are dominus litis (master of a suit) in our courtroom. I have never been able to understand how any court would allow counsel representing a client get the opportunity to dictate the tune in the courtroom.
“The law has given the judge the power to dictate the tune for lawyers and litigants to dance to. The judiciary cannot afford to allow itself to become the weakest link in the enforcement of our laws because the wheels of justice grind so slowly.
“It is my ardent hope that all chief judges will follow this laudable example and enact similar Practice Directions in their various jurisdictions,” she said.
A legal expert, Austin Emumejakpor, who gave an overview of the FCT ACJA Practice Directions, noted that Order 14 of the Practice Direction likens a judge to a referee.
The judge, he said, must take firm control of his court from the onset to set the tone of the trial.
“Presiding judges should make counsel aware they are in charge of their courts. Where appropriate, remind counsel of their duty,” he said.
Emumejakpor urged judges to use their powers to award costs so as to reduce delays and discourage frivolous applications for adjournments.
CJ’s warning on remand order
FCT High Court Chief Judge, Justice Ishaq Bello, said judges must not indulge prosecuting agencies who detain suspects while fishing for evidence.
Before granting requests for extension of remand orders, there must be reasonable justification for the extension, he said.
“I have observed that remand orders are just being granted as a matter of course when the provision is express. I think we should be more proactive, particularly when there is a second request.
“We must be able to find reasons; legitimate grounds as to why the extension of the remand order earlier granted should be made. This will check the excesses of the remanding authority,” he said.
The CJ said ‘de-clogging panels’ would be set up to review dormant criminal cases to be struck out.
“Over six months ago, I sent out a circular to all the prosecuting agencies, that where they are aware of cases that cannot be prosecuted, they should compile and have them struck out. None of them responded.
“As soon as we’re able to set up this panel, we’re going to strike out these cases. Judicial tolerance is being overstretched.
“Because we keep on bending backwards on the ground that these are cases of armed robbery, murder, the investigating authorities tend to over-capitalise on that and keep seeking adjournments without completing investigations. Cases tend to stay in court unattended.
“By the time we have this panel, I assure you, we’re going to throw out these cases, whether they’re armed robbery or murder cases.
“If they choose to re-arrest, we’ll give them time-line to complete the prosecution, because we must rescue the integrity of the judiciary and the justice system. This we want to do,” he said.
Challenges multi-dimensional
A PACAC member Prof Femi Odekunle, who chaired the event, said as pervasive and institutionalised corruption is, and as damaging as it is to the country’s economic and social development, it can only be tackled within the bounds of rules, due process and fair hearing.
Noting the fact that delayed justice means denied justice, Prof Odekunle said there tends to be a dominance of ‘technical’ justice over and above real justice.
“Wrongly, the blame for these deficits is put on the judiciary: compromised, just lazy or incompetent.
“Yet, the reality of the problem is not one-dimensional. Rather, it is multi-dimensional.
“For instance, judges cannot be blamed for the following: archaic rules/regulations that literally ‘tie’ the hands of judges and give room for the God-forsaken shenanigans of defence lawyers; incompetent prosecutors further disabled by under-funding and under-staffing or inadequate logistics, and investigators who by default (and sometime by design) ignore to properly ‘service’ the ingredients to prove an offence,” he said.
He said contrary to the perception “in certain quarters”, PACAC “is not against the judiciary, the legal profession or any set of judges or lawyers”.
“Yes, PACAC is furious against a few judges, and a few lawyers who are sabotaging the anti-corruption fight – because the few not only frustrate the fight, they also damage the diligent and honest work of the so many good and hardworking judges of our judiciary.
“Perhaps, needless to say, the conception and the enactment of ACJA 2015 is to mitigate the untoward consequences of the system I earlier highlighted.
“I must reiterate that any indication of animus between PACAC and the judiciary is at the most charitable a ‘myth’ and at worst a perception being propagated by the enemies of the fight against corruption.
“If you needed any proof of this position, the collaboration’ between PACAC and the FCT judiciary on the conception and execution of this workshop is proof-positive,” he said.
