Ude Jones Udeogu: What Supreme Court didn’t consider

• Continued from last week

By Kemi Pinheiro (SAN)

The Supreme Court in the case of A.G Ondo v A. G. Federation & Ors. was called upon to consider the constitutionality of the Independent and Corrupt Practices Act and the Court in arriving at its decision took into cognizance the endemic nature of corruption in Nigeria.

Even though some provisions of the ICPC Act was declared void, the Supreme Court still affirmed the constitutionality of the ICPC Act.

This same approach was adopted and commended by the Supreme Court of the Dominion of Canada in the case of Re: Anti-Inflation Act (1976) 2 S.C.R 373 where the Court was faced with the test of determining whether the Canadian Anti-Trust Act, 1976, was enacted for the peace, order and good government of the Dominion of Canada and whether it did not, in the circumstances under which it was enacted invade the legislative competence of the provinces. The court held that:

“The Anti-Inflation Act is valid legislation for the peace, order and good government of Canada and does not, in the circumstances under which it was enacted … invade provin­cial legislative jurisdiction…the preamble to the Act was sufficiently indicative that Parliament was introducing a far-reach­ing programme prompted by what was in its view a serious national condition and the absence of the very word “emergency” was not unduly significant.

The validity of the Act did not stand or fall on the preamble but the preamble provided a base for assessing the gravity of the circumstances giving rise to the legisla­tion.”

In the United Kingdom, a purposive interpretation of then Finance Act of the United Kingdom was adopted by the House of Lords in the case of Pepper v Hart [1992] 3 WLR 1032 where the court was called upon to decide whether a teacher at a private school will have to pay tax on the extra perks he gets from reduction of school fees.

The court in that case departed from its previous decisions and had recourse to the Hansard in considering the background of the law and giving effect to the purpose for it. Lord Griffiths opined in that case thus:

“The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”

The progressive trend by Courts in those other Jurisdictions such as the United Kingdom, Canada and India, is to adopt the purposive approach to decipher the purpose of the statute.4

A purposive interpretation of the provision of section 396(7) of the ACJA vis-à-vis the provision of section 290(1) of the 1999 Constitution in the instant case will then be to consider the mischief intended to be cured by the provision and then distinguish the current factual circumstances from the purview of the interpretation offered in the previous cases of Ogbunniya and Our Line Limited  to the effect that an elevated judge may in fact conclude criminal cases pending before him before his elevation.

The Supreme Court in my view failed to do this and turned a blind eye to the mischief for which the law was enacted which adoption of a purposive interpretation would have greatly assisted the Supreme Court to consider.

My point here becomes more obvious by the fact that it was the 1st Defendant that applied in the first place for the fiat to be given to Honourable Justice Idris (though we concede that this may not have been in the records before the Supreme Court) thus a more purposive approach to the issue would have prevented a situation where the 1st Defendant would not be availed an opportunity to approbate and reprobate at same time and should have prompted the Supreme court to consider the mischief which the law was set out to cure.

Furthermore, in the Ogbunniya and Our Line Ltd cases, what the Supreme Court did at that time was simply to construe the provision of section 254(1) of the 1979 Constitution to mean that once a judge subscribes to the oath of office of a particular court he becomes a judge of that court.

The further implication of stating that the judge cannot then go back to his former court to conclude a case was a product of application of that interpretation.

What I am trying to say here is that there is no express provision of the Constitution actually barring and/or prohibiting the legislature from making a law to allow a judge who has been elevated and have subscribed to the oath of an appellate court from concluding criminal cases that were pending before him in his former court prior to his elevation.

Consequently, in view of the settled position of the law that what is not prohibited is implied permitted, the Supreme Court ought not to have held that section 396(7) of the ACJa is inconsistent with section 290(1) of the 1999 Costitution. See in this regard the case of  Theophilus v FRN (2012) LPELR-9846 (CA).