ACJA And Preservation Of Constitutional Safeguards
Posted: 14/Aug/2018

Being text of a paper delivered by law teacher and prosecutor Wahab Shittu at the Presidential Advisory Committee against Corruption (PACAC) roundtable on July 24.

Tackling abuse of Stay of Proceedings in India

The case of OlisahMetuh v FRN is revolutionary for outlawing stay of proceedings in criminal trials and upholding the constitutionality of section 306 of ACJA, 2015.  We ought to commend the Supreme Court for the courageous decision and the controversy against the ruling is needless and groundless.

The concern that has arisen from the abuse of stay of proceedings to stall criminal trials may not have been peculiar to Nigeria. In India, the Supreme Court ruled that a stay of proceedings by an appellate court in any pending trial to either corruption or civil or criminal cases shall not operate for more than six months without a speaking order.  The justification as observed by the court is that the “cancer of corruption has eaten into the vitals of the state and needed to be nipped in the bud.”  Secondly, the other justification is that the power to stay the trial of proceedings has to be exercised with ‘restraint’ particularly in corruption cases. In further providing justification for the ruling and condemning the element of delay in the criminal trial process particularly as it relates to corruption, the Supreme Court of India observed as follows:

“It is well accepted that delay in a criminal trial, particularly in the Prevention of Corruption Act cases, has deleterious effect on the administration of justice in which the society has a vital interest.  Delay in trials affects the faith in Rule of Law and efficacy of the legal system.  It affects social welfare and development…Even in civil or tax cases it has been laid down that power to grant stay has to be exercised with restraint.  Mere prima facie case is not enough.  Party seeking stay must be put to terms and stay should not be incentive to delay. The order granting stay must show application of mind. The power to grant stay is coupled with accountability.”

Clearly from the foregoing the constitutional mandate of expeditious disposal of a trial should be respected.

The India template may have laid down the time limit for the stay of proceedings to six months but our Supreme Court in the Olisah Metuh v FRN did not impose any such time limit but ruled in favour of outright ban of stay of proceedings in criminal trials.

This is consistent with statutory provisions as enshrined under section 306 ACJA and section 40 of the EFCC Act.  This may also have arisen as a result of the fragrant abuse of stay of proceedings by counsel to stall the progress of criminal cases.

As Professor YemiAkinseye George puts it:

“Prior to Metuh, the Nigerian criminal justice system had literally become a failed system principally on account of its painful and pathetic inability to conclude High Profile Criminal Cases, particularly those involving politically-exposed persons (PEPs). Such cases dragged on interminably in the justice system…”

This is a major source of concern which the Supreme Court decision in OlisahMetuh v FRN sought to address frontally, and I dare say, courageously.

Summary of arguments

The impact of the revolutionary decision of the Supreme Court in OlisahMetuh v. FRN are far-reaching.

The effect of the combined provisions of sections 306 of the ACJA, 2015 and 40 of the Economic and Financial Crimes (Establishment) Act2004 is that no court has the power to stay proceedings in criminal trials.
The effect of section 22 of the Supreme Court Act is limited to making an interim order or grant any injunction which the court below is authorized to make or grant and does not cover powers to order stay of proceedings in a criminal trial which are outlawed by sections 306 of the ACJA and 40 of the EFCC Act.
Stay of proceedings in criminal trials is incompatible with the spirit and letters of section 36(4) of the Constitution which provides that ‘any person charged with a criminal offence is entitled to a fair hearing in public within a reasonable time’.
The attitude of court as evidenced by the recent practice direction issued by respective heads of court is to fast track trials of cases involving corruption, economic and financial crimes, human trafficking, money laundering, rape, kidnapping and terrorism amongst others.
Section 6(6)(b) of the constitution of FRN (as amended) does not confer specific powers on the Supreme Court to stay further proceedings in criminal trials.
Section 15 of the Court of Appeal Act cannot be invoked to stay proceedings in criminal trials as such exercise of powers is outside the jurisdiction of the trial court and by extension the Court of Appeal.
Delay of criminal trial proceedings is dangerous to justice delivery system. When proceedings are stayed, trials of cases are delayed. In many cases vital witnesses may have died, evidence may have been tampered with etc. in the end, justice is defeated.
The argument that the decision outlawing stay of proceedings in criminal trials infringes right of appeal of the defendant is not correct. There is a distinction between stay of proceedings and right of appeal. The defendant is at liberty to raise whatever issues he/she is aggrieved about during the trial process on appeal at the end of the case, which right of appeal is still constitutionally guaranteed to the defendant. Consequently, the fact that the defendant is not allowed to stay proceedings does not translate to the erroneous view that his right of appeal is no longer guaranteed. The point being made is that stay of proceedings is antithesis of speedy trial guaranteed by the constitution. If the constitution advocates speedy trial, why emphasize stay of proceedings at the expense of speedy trial process?
Closely related to this argument is the fact that the decision outlawing stay of proceedings is not peculiar to criminal trials. It is also adopted in election petition proceedings and it has been assisting tremendously in delivering speedy trial process. If Counsel has no difficulty with compliance in election petition proceedings why should stay of proceedings in criminal trials be different?
Rather than advocate for right to stay proceedings, the emphasis in my view, should be on advocacy for constitutional timeframe for concluding criminal trials. It is also important to monitor security and investigative agencies in delivering on quality investigation. In many instances, cases are lost on account of poor investigation.
Significantly, we should enhance the quality of investigation outcomes. The first proposal that I wish to make is that no case should be taken to court without proper investigation no matter the extent of public outcry. Secondly, emphasis should be placed on investigation led arrests as opposed to arrest led investigations. Thirdly, arraignment of suspects in court should be based on verifiable, conclusive and supportable findings arising from diligent investigations. Fourthly, investigators must be available at all times to give evidence in proof of the outcomes of the investigations. Fifthly, investigators must carry out all necessary steps including obtaining all relevant evidential materials in support of investigations.  It is also important to guarantee the security and welfare of investigators including potential witnesses as well as sensitive documents in aid of the trial process.  More importantly, it is important that the investigation process is adequately monitored to forestall compromise and severe sanctions should apply in the event of breaches. The other element that should be guaranteed is the security of evidential materials recovered during investigations if possible ensuring that such materials do not fall into private hands who could be subject of attacks targeting of course the recovery of those documents. It is also important to constantly test the character, integrity and moral standards of investigators including ensuring availability of up to date training programmes for investigators. There should also be stiffer penalties available to officers who deliberately bungled investigations for pecuniary or other vested interests. My final take on this is to call for a code of ethics to be put in place for all categories of investigators as a policy framework
There is urgent need to domesticate the ACJA across the states of the federation to ensure speedy justice delivery. Nigeria stands to benefit quick dispensation of justice and observance to human rights, if the provisions of administration of criminal justice act are domesticated and implemented in states across the country.
Advocates of stay proceedings in criminal trials are quick to rely on the FRN v. Dr. Bukola Saraki where the Apex court granted stay of proceedings. Significantly, that case was distinguished by the Supreme Court in the Olisah Metuh v FRN’s case and the reasoning behind the distinction can hardly be faulted.
Significantly, the apex court’s decision in FRN v. Dr. Bukola Saraki’scase respectfully can be criticised in the light of the provision of section 306 of the ACJA and section 40 of the EFCC Act outlawing stay of proceedings in criminal trials.

The question may be raised whether one is permitted to criticize the Supreme Court’s decision in FRN v. Dr. Bukola Saraki? The right to criticise judgment of courts is part of the fundamental right of every citizen of freedom of expression in section 39 of the Constitution.  What is not allowed is any attempt to scandalise the court or raise allegation of impropriety or misconduct  without proof. Indeed, the Supreme  Court has always appreciated constructive criticism of its decision having regards to their finality and overall impact on the nation’s legal system. In Adegoke Motors v Adesanya (1989) 3 NWLR (Pt 109) 250 at 274-275, the revered Chukwudifu Oputa JSC alluded to the finality of the decisions of the Supreme Court when he said that “we are final not because we are infallible, rather we are infallible because we are final. Justices of the Court are human beings capable of erring.  It will be shortsighted arrogance not to accept this obvious truth.  It is also true that this court can do inestimable good through its wise decisions.  Similarly, the court incalculable harm through its mistakes.”

Late Justice Kayode Eso also acknowledged the right to criticise judgments of the Supreme  Court in the case of Adigun v Governor of Oyo State (No. 2) 2 NWLR (Pt.56) 197 at 214 – 215 when His Lordship held that

“the decision of the Supreme Court is final.  Final in the sense of real finality in so far as the particular case before it is concerned. It is final forever, except there is legislation to the contrary, and it has to be a legislation ad hominem”. In recognition of the enormous powers of the apex court, Justice Eso was of the view that “It is such dread powers that must necessitate great care in the caliber of the Court and such dread that must necessitate pungent and constructive analytical criticism of every judgment of the Court in the law Journals and similar fora.” In reaction to the view of some judges and lawyers that it is contemptuous to subject decisions of courts to criticism, Justice Eso stated that “the judgment of a court should not be treated with sacred sanctity, once it gets to the right critical forum”.

In the light of the Supreme Court’s pronouncement in OlisahMetuh v FRN, the case of FRN v. Dr. BukolaSaraki cannot be relied upon to stay proceedings in criminal trials.

The attitude of the court has been to discourage frivolous interlocutory appeals at the expense of the merits of substantive matters. Order 7 of the Court of Appeal Practice Directions 2013, provides that “the courts shall refuse to hear appeals arising from interlocutory decisions of the court below where the matter deals with any of the issues in 3 above and the court is of the opinion that the grounds raised in the appeal are such that can conveniently be determined by way of an appeal arising from the final judgment of the court below.” Instead of entertaining interlocutory appeals, the Court of Appeal may order the trial court “to accelerate hearing in the substantive suit.”

Order 10 of the Supreme Court (Criminal Appeals) Practice Directions, 2013 is in parimateria with Order 7 of the Court of Appeal Practice Directions, 2013. It provides that the apex court “will only determine applications which cannot be taken with the substantive appeal.” For the avoidance of doubt, each Panel of the Supreme Court shall take all steps “to reduce the time spent on hearing and determination of interlocutory applications both at the trial court and appeal and in the process minimize avenues for parties to make use of interlocutory applications as a means to frustrate or delay the expeditious conduct of cases at the Courts below.”

It is clear from the foregoing, that both the Supreme Court and the Court of Appeal had, before the enactment of ACJA, adopted measures to discourage parties and their counsel from resorting to interlocutory appeals to frustrate the hearing and determination of cases of economic crimes and terrorism. Consequently, the abolition of stay of proceedings and interlocutory appeals cannot be said to be illegal and unconstitutional.

Conclusion

The legal reasoning and justification behind the decision of the Supreme Court in Olisah Metuh v FRN can hardly be faulted particularly because the decision cohered with existing principles and authorities mainly sections 306 of ACJA and section 40 of the EFCC Act respectively.  The second reason for the justification of the decision concerns the broader consequences of the decision for the administration of justice and the broad philosophy of speedy trial process.

The Supreme Court in the Olisah Metuh Vs FRN may have addressed the problem of delay caused by stay of proceedings and interlocutory appeals, but are these the only causes of delay in the trial process? In a recent report, the Justice Galadima-led Committee has identified the root causes of delay in criminal trials to include: Poor investigation, weak prosecution, lack of witnesses, poor funding and subversion of ethics by defence lawyers amongst others. We need to reflect on all of these if we are genuinely concerned about accelerating the pace of criminal trial proceedings.

As officers in the temple of justice, our preoccupation should be the attainment of justice at every opportunity and it is certainly not ethical and professional to deploy our legal training and expertise to defeat the ends of justice.

The other point that I need to make is that delay in trial proceedings is a stakeholders problem and nearly all involved in the criminal trial process are culpable – defence counsel, prosecution counsel, investigative agencies, the court system, and the blame is mainly attitudinal. The challenge is how do we legislate against negative attitude from the stakeholders? One other challenge is how to explore the advantage conferred by section 306 ACJA in reducing negative deployment of interlocutory appeals to stall the criminal trial process by counsel.

As law officers, we all have a duty to reverse this negative trend and the Supreme Court may have started the revolution by its decision in OlisahMetuh v FRN.

However, the impression must not be created that it is only defence counsel who frustrate trial court proceedings. We need to be honest with ourselves to recognise that prosecutorial agencies frustrate trial proceedings by needless delays to arraign suspects in court thereby leading to congestion of our prisons to the prejudice of defendants.  Moving forward, it is necessary to design a mechanism for checking these seeming excesses of the prosecution in the criminal trial process in line with best practices. In the UK for example where there has been a substantial delay in bringing a prosecution, the court may stay or halt further proceedings as an abuse of process. This may take care of the plight of awaiting trial inmates who are detained in our prisons without being brought to trial and also assist in decongestion of our prisons.  It is submitted that such awaiting trial inmates of our prisons could halt their trials on the ground of unjustifiable delay and likely prejudice to the trial process on account of that unreasonable delay. In such circumstances, the court will consider the length of the delay, the reason for the delay, whether the right against delay was asserted by the defendant and whether there has been any prejudice to the defendant as enshrined under article 6(1) of the European Convention of Human Right.  We may need to replicate similar provisions in our statute books to forestall irresponsible prosecution or abuse of prosecutorial powers.

My view is that following the UK example and the template of article 6(1) of the European Convention on Human Rights (ECHR) and reinforcing our constitutional provision prescribing trial of the defendant within a reasonable time, it is recommended that trial courts should have the jurisdiction to stay further proceedings where there has been a substantial delay in bringing a prosecution in circumstances clearly suggesting gross abuse of the process to the prejudice of the defendant.  This will be consistent with the philosophy of even-handed justice where justice is delivered not only in favour of the state, the victim but also the defendant. I so propose.

Notwithstanding, the Supreme Court in OlisahMetuh v FRN in outlawing stay of proceedings in criminal trials may have initiated a revolution for reform of our criminal justice system and as counsel we need to key ourselves into the revolutionary movement by being not just counsel of knowledge and professionalism but essentially, by being counsel of virtue with respect for values and high ethical standards.

Shittu is EFCC External Prosecuting Counsel and Lecturer, Department of Jurisprudence and International Law, University of Lagos (UNILAG) & currently a Postgraduate (Ph.D.) Research Student as well as Principal Partner, W.K. Shittu & Co. (Legal Practitioners).

By Unini Chioma
Thenigerialawyer News