THE APPLICABILITY OF ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015, By Bar. Emma Akpunonu

Bar. Emmanuel Akpunonu

Many Lawyers including me are of the view that the administration of criminal justice Act, 2015 is applicable only to criminal trials within the federal capital territory and before the Federal High Court. 

The provisions of sections 2 & 86 of the Act appear to suggest otherwise. This article examines the constitutionality of the said provisions.



Section 2 of the Act which is without prejudice to section 86  provides that the Act shall apply to criminal trials in F.C.T and to offences created by an Act of the National Assembly. To further compound the already complicated issues, section 86 of the Act made part 8 - 30 of the Act applicable to ALL criminal trials unless expressly excluded in relation to any court or trial.

1st POSER:
Is it constitutionally wrong for the Attorney General of the Federation, Officers of his department or Federal Government agencies to prosecute offences before a State High Court?

Section 174(1) (a), (b) & (c) of the 1999 constitution of the Federal Republic of Nigeria as amended provides thus:
" the Attorney General of the Federation shall have power

a. to institute and undertake criminal proceedings against any person before ANY COURT OF LAW IN NIGERIA OTHER THAN A COURT MARTIAL, in respect of any offence created by or under any Act of the National Assembly.

b. to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and

c. to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.

A careful examination of the above provision would reveal that the powers conferred on the Attorney General of the Federation is not court sensitive. 

The only sensitive factor which the A.G is required to consider is the nature of the offence i.e whether such offence is a federal or state offence. 

Thus, in the case of EMELOGU v STATE (1988) 2NWLR (pt 87) 524, it was held that an Attorney General of a state can not prosecute a Federal offence. By parity of reasoning, the A.G Federation cannot equally prosecute an offence created under the law of a state. 

However, it goes beyond dispute from the constitutional provision cited above that the A.G Federation can prosecute federal offences irrespective of the venue, provided that the court in question has the substantive jurisdiction to try the subject-matter.

To further buttress my position, section 19(1) of the Economic and Financial Crimes Commission (Establishment, Etc) Act, 2004 provides thus:

" the Federal High Court or High Court of a State or the Federal Capital Territory has jurisdiction to try offenders under this Act".

The Economic and Financial Crimes Commission has in furtherance of the above provision instituted criminal charges for offences committed under the EFCC Act( an Act of the National Assembly) in some State High Court in Nigeria. One of such cases; FEDERAL REPUBLIC OF NIGERIA v DR. N.S ETUKUDOH & 4 ORS in charge no: PLD/36c/2015 is currently pending before the Plateau State High Court, Jos Division. 

The A.G Federation either acting in person or through officers of his department can decide to takeover such proceeding from EFCC in exercise of his constitutional powers notwithstanding the fact that it is pending before a State High Court. Hence, there is no constitutional barrier prohibiting either the A.G Federation, officers of his department or Federal Government agencies from prosecuting offences in a State High Court once such court is vested with substantive jurisdiction.

2nd POSER:
Where the A.G Federation, officers of his department or a Federal agency initiate or takeover criminal proceedings before a State High Court, what is the appropriate procedural law to govern such trial?

Section 2 of the Administration of Criminal Justice Act, 2015 provided as follows:
" without prejudice to section 86 of this Act, the provisions of this Act shall apply to criminal trials for offences established by AN ACT OF THE NATIONAL ASSEMBLY and other offences punishable in Federal Capital Territory, Abuja".

Applying the literal rule of interpretation, it is the intendment of the provision reproduced above that for ALL criminal trials in respect of an offence created by an Act of the National Assembly, the applicable procedural law should be the Administration of Criminal Justice Act, 2015, the venue of such trial notwithstanding. 

In other words, where EFCC institutes criminal charges under the EFCC Act before a State High Court or where such proceeding pending before a State High Court  is taken over by the A.G Federation in exercise of his constitutional powers, the applicable procedural law becomes the Administration of Criminal Justice Act, 2015.

It is my humble submission that the provisions of section 2 of the Administration of Criminal Justice Act, 2015, to the extent highlighted above, as well as section 86 of same Act is in violation of the spirit of the constitution. 

The two sections represent an attempt by the National Assembly to enact law for State High Courts.For the avoidance of doubt, the combined reading of sections 4(7) & 274 of the 1999 constitution of the Federal Republic of Nigeria as amended, empowered the State House of Assembly and the Chief Judge of a State High Court to make rules for regulating the practice and procedure of the High Court of the State.

In the case of FASAKIN FOODS (NIG.) LTD v SHOSANYA (2006) 10 NWLR (pt.987) 126 @ 171-172, the apex court voided the provision of section 22(3) of Federal High Court Act which empowered the State High Courts to transfer matters to the Federal High Court where the State High Court lacked jurisdiction. 

The Court held that in the absence of any law enacted by the Lagos State House of Assembly to incorporate section 22(3) of Federal High Court Act, the Lagos State High Court cannot transfer a matter to the Federal High Court.

To cement my position, that section 2 of the Administration of Criminal Justice Act, 2015 is a legislative oversight, I place reliance on the Long title to the Act itself. I shall now reproduce both section 2 of the Act and the Long title to the Act hereunder.

Section 2:
" without prejudice to section 86 of this Act, the provisions of this Act shall apply to criminal trials FOR OFFENCES ESTABLISHED BY AN ACT OF THE NATIONAL ASSEMBLY and other offences punishable in the federal capital territory, Abuja".

Long Title to the Act:
"An Act to provide for the administration of criminal justice IN THE COURTS OF THE FEDERAL CAPITAL TERRITORY AND OTHER FEDERAL COURTS IN NIGERIA and for related matters".

The phrase" in the courts of the federal capital territory and other federal courts in Nigeria" is an acknowledgment of the fact that an offence created under an Act of the National Assembly could be prosecuted elsewhere other than the mentioned courts. Hence, where such is the case, the Act is inapplicable.

It is my recommendation therefore that section 2 of the Act should be reviewed and re- enacted to read:
" the provisions of this Act shall apply to criminal trials in the courts of the Federal Capital Territory and other Federal Courts in Nigeria".

Section 86 of the Act should be equally expunged entirely.