WE have so far examined the innovations that the Administration of Criminal Justice Act (ACJA) 2015 has brought to our criminal justice administration generally and how far the system has fared thereby. It is now time to take a holistic look at interlocutory proceedings and interlocutory appeals in criminal matters.
Interlocutory proceedings or interlocutory appeals are temporary proceedings or processes conducted or filed during the progress of a legal action and they are not final or definitive. They are preliminary matters which, at times, require judicial resolutions before proceeding to tackle the main case. In criminal cases, it could relate to the competence of the charge, the judicial venue, admissibility, trial within trial or such other matters of immediate concern in the life of the case. Depending on their nature, they may or may not end the case. Three sections of ACJA 2015 have so far raised concerns on interlocutory proceedings and interlocutory appeals.
Section 221 provides that “objections shall not be taken or entertained during proceeding or trial on the ground of an imperfect or erroneous charge;” Section 396(2) allows the court to take objections but defer its ruling till final judgment, whilst Section 306 states that “an application for stay of proceedings in respect of a criminal matter before the court shall not be entertained.” The focus of these provisions is to achieve effective and timely determination of criminal cases and to avoid delays in the course of trial. These sections are prohibitive in nature, in so far as they seek to gag the defendant in particular from exercising his right to question the proceedings or have his appeal determined meritoriously. Be that as it may, they are bold attempts made to address the hydra-headed issue of delay in criminal justice administration. However, such efforts must be carefully executed so that they are not counter-productive in the end. Surely there should be no room for objections meant purely to delay the hearing of the case, where a defendant seeks to deploy that to escape his due trial, by frustrating the prosecution. In some cases, by the time the case comes back on appeal, the witnesses may have died or become compromised totally. But as it has now been held by the Court of Appeal in the recent case of Ibrahim Buba Shema v Federal Republic of Nigeria, where such objection goes to the root of the case, it should be taken and decided preliminarily, as a court should not proceed on a trial where, for instance, it lacks the jurisdiction to entertain the case itself, or where the case against the defendant is manifestly unsustainable.
In Shema’s case, the defendant filed a motion to quash the charges against him on the ground that they amount to abuse of the process of court, in that the said charges and the evidence furnished in proof do not disclose any prima facie case against him. The learned trial court took the objection but deferred its ruling and continued with the case, relying upon the provisions of Section 396(2) of ACJA, which permits such objection to be considered along with the substantive issues in the course of the final judgment. On appeal, the Court of Appeal made a clear distinction between objections on forms and those on jurisdiction, the latter for which a ruling must be rendered before proceeding further with the substantive matter.
An order for a stay of proceedings in any case, civil or criminal, should be a matter of discretion for any court, if it is to be allowed the statutory powers to be the master of its own proceedings. Section 6 of the Constitution clearly gives the court the power of adjudication and that power should not be hindered in any way at all by any other subordinate legislation. The fear of all is about the abuse to which this power has been subjected to by lawyers and litigants. But this should be not a reason to gag both the court and the parties before it. Furthermore, the Constitution and the Court of Appeal Act both donate a right of appeal against interlocutory decisions of the trial court. Indeed, Section 36(4) of the Constitution grants the right to fair hearing to the defendant, in all criminal cases, whereas Article 7 (1) (d) of the African Charter on Human and People’s Rights prescribes that all citizens should have the right to exhaust their grievances to the highest court of the land. In this regard, ACJA cannot be right to prohibit fundamental objections or stay of proceedings or, indeed, prohibit the court from hearing certain applications.
Presently in Nigeria, we have seen that the problem of delay in criminal justice administration is a combination of several factors, such as lack of funding of the judiciary, whereby we still have the same number of courts to handle the upsurge in crimes and criminalities. Then there is also the issue of absence of infrastructure and facilities, such as where the court is sitting, lawyers are ready and waiting to proceed with the case, but there is no vehicle to convey the suspect from prison custody to the court to stand his trial, or where, at times, the suspect is available but there is no power supply to the courtroom and the case is adjourned for that reason alone. In some other cases, the investigating police officer is not available, whether due to other official duties or outright transfer away from the jurisdiction of the trial court. However, the most prevalent of these factors is that of lack of judicial personnel to handle the deluge of cases being heaped upon the courts on a daily basis. All these cannot be cured by ACJA.
In cases where the defendant is buoyant enough to foot the legal bills, to compile his own records and to expedite the hearing of the appeal, interlocutory appeals and stay of proceedings have no negative impact upon criminal cases. In the case of Senator Bukola Saraki v Federal Republic of Nigeria, the period of arraignment, objections, stay of proceedings and the appeals to the Court of Appeal and indeed the Supreme Court was less than one year. In election petitions and political cases, the entire proceedings are to be determined within 180 days, making it even needless to apply to stay the proceedings. The point here is that there is nothing untoward in staying proceedings pending an interlocutory appeal, if the parties are serious about prosecuting the appeal and not just as a mean of stalling the case.
The judicial officer must be allowed some measure of judicial discretion in determining whether or not to hear preliminary objections or stay further proceedings pending appeal. This is more so because we may not isolate just one of the causes of delay in criminal justice administration whilst ignoring the others. If the court declines to take any preliminary objection, if the court refuses to grant any order for a stay of further proceedings, in order to aid effective trial but the suspect is not produced from custody, will the case not be stalled still?
Suppose the court has made all efforts to have the matter heard but it has about ten of such cases for trial on the same day, will the matter not still be stalled? The search for effective criminal justice administration should, therefore, be holistic, so that we do not achieve success in one angle and then failure in other areas still holds us down. Criminal cases should generally be given priority attention, given that the life and liberty of the defendant are involved and the cost to society, of the criminal act and its prosecution. In this regard, therefore, sections 221, 306 and 396(2) are well appreciated but they cannot work in isolation of other relevant factors to achieve smooth administration of the criminal justice system.
What then can be the solution? It is as stated by the Court of Appeal in Shema’s case, namely that we cannot annul judicial discretion by legislation. Lawyers, litigants and the courts must do all to cooperate with the spirit of effectiveness behind the promulgation of ACJA, 2015. We must distill fundamental objections from the frivolous ones that are meant just to tie the case and give the defendant some time to filibuster. Once a brief is handed down, most clients would readily indicate the real state of affairs to their counsel. Dignity and honour would then posit that where a suspect is manifestly culpable of the offences alleged against him or his defence thereof will prove truly herculean, then patriotism demands that counsel should properly guide him on the options available, especially now that the process of plea bargain has been well codified. We cannot use the liberty of the constitutional right of appeal to frustrate the due trial of indicted suspects when other factors are ripe for due prosecution.
As it is now, ACJA is standing alone like an orphan in its efforts to achieve speedy dispensation of criminal justice and it is being held down by lack of adequate funding for the judiciary, it is being frustrated by congestion of cases in the courts, it is being hindered by the sorry state of decay of infrastructure in the courts and absence of sufficient manpower and facilities for thorough investigation and due prosecution. It is a great piece of legislation, which has been given teeth just for display but lacks the capacity to bite, for impact.