It is pertinent to note that the aforementioned Justices of the Court of Appeal carried out the extrajudicial duties assigned to them by state governors pursuant to the fiats received from the President of the Court of Appeal. It is on record that at the end of such enquiries, the Justices resumed duties in their courts. It is trite law that such judicial commissions of inquiry are inferior tribunals. Hence, the recommendations of the judicial tribunals which are accepted by the governments and published in White Papers are usually challenged in the high courts.
I have also not found any constitutional provision that empowers the Chief Justice of Nigeria or the National Judicial Council to post or second serving Justices of the High Court and Justices of the Court of Appeal and even the Supreme Court to sit in the courts of other countries. As serving Nigerian Judges, the late Justice Udo Udoma and the late Justice Akinola Aguda, served as Chief Justices of Uganda and Botswana, respectively. At the end of their tenures, they came back and returned to their courts. In those capacities, both Chief Justices delivered epochal judgments which have stood the test of time.
A few years ago, retired Justice Emmanuel Ayoola was a Justice of the Court of Appeal and Chief Justice of The Gambia. He returned to the Court of Appeal in Nigeria before his elevation to the Supreme Court. Justice Bode Rhodes-Vivour served in the Supreme Court of The Gambia from 2008-2010 before his elevation to the Supreme Court of Nigeria. Justice Akomaye Agim was the Chief Justice of The Gambia and Swaziland. At the end of his meritorious service in both countries, he was appointed a Justice of the Court of Appeal in Nigeria. Many other former and serving Justices of the Court of Appeal and the Supreme Court of Nigeria had been seconded as members of the apex court of The Gambia.
In 2004, the Secretary-General of the United Nations appointed Justice Ayoola (retd) as President of Appeals Chamber of the Special Court for Sierra Leone, set up to try those responsible for the Sierra Leone Civil War. I was one of the lawyers who proffered arguments against the preliminary objections filed by former Liberian President, Mr. Charles Taylor, against his trial. Sometime in 2012, I was privileged to have appeared before the African Court on Human and People’s Rights in Arusha, Tanzania when it sat for the first time in open court. I had appeared for myself in the case of Femi Falana v African Union (Application No. 001/11 ). A member of the Court at the material time is the Honourable Justice Justice Elsie Nwanwuri Thompson of the Rivers State High Court.
Last year, I had cause to address the members of the bar and bench in that country. Three of the Judges who attended the programme were High Court judges in Nigeria. The judges who are still serving in that country on secondment up till now are Babatunde Bakre J., Usman Masale J. and Patience Onagite-Kuejubola J. Another Nigerian Judge, the Honourable Justice Nkemdim Ameha Izuako, has been sitting in the United Nations Disputes Tribunal since 2009. She is also the first female judge in the High Court of Solomon Island.
All these eminent Nigerian judges were posted out of Nigeria by mere administrative fiats of the Chief Justice of Nigeria. Neither the constitution nor any law empowers the Chief Justice to give a fiat to any judge to serve outside Nigeria. I am wondering whether the decisions of such judges will not be impugned henceforth on the basis of the celebrated judgment of the Supreme Court in the case of Ude Jones Udeogu v FRN. Since the constitution has not clothed the Chief Justice of Nigeria with the powers to give fiats to judges to serve in the jurisdiction of other countries, has the judgment of the Supreme Court not effectively halted the secondment of Nigerian judges to serve as Judges of superior courts in some commonwealth countries?
Whatever reservations anyone may have about the judgement of the Supreme Court in the case of Ude Jones Udeogwu v FRN, Section 396 (7) of the ACJA has been annulled. Whether the law has been correctly interpreted or not, the law is what the Supreme Court says it is at any point in time. No doubt, the desire of the federal legislators to halt the frustration of the prosecution of corruption cases by members of the ruling class has been defeated. Therefore, concerned legislators are urged to go back to the drawing board and ensure that a provision similar to Section 396 (7) of the ACJA 2015 is entrenched in the 1999 Constitution without any delay. Furthermore, the constitution should be amended to confer powers on heads of courts to second judges to serve in judicial tribunals and in courts outside the country.
Credit: Femi Falana