Apr 3, 2018

Querying The Constitutionality Of Section 300 (3) Of The ACJL Of Delta State | Oliver Omoredia





The Administration of Criminal Justice Act (ACJA) was signed into law by former president Goodluck Jonathan in 2015 and has since its enactment revolutionized the administration of criminal justice in the country. The provisions of the Act have been largely re-enacted in the Administration of Criminal Justice Law of Delta State 2017.  This write-up considers the provision of Section 300 (3) of the Administration of Criminal Justice Law of Delta State and argues its sustainability in the light of constitutional provisions on the state’s legislative competence to enact same.




THE CONSITUTION AND LEGISLATIVE COMPETENCE

Generally, the Constitution of the Federal Republic of Nigeria 1999 (As amended) clearly sets out matters upon which federal and state legislative arms exercise competence. Section 4(1)(3) & (7) of the Constitution provides:

“4. (1) The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives...

 (3) The power of the National Assembly to make laws for the peace, order and good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save as otherwise provided in this Constitution, be to the exclusion of the Houses of Assembly of States

(7) The House of Assembly of a State shall have power to make laws for the peace, order and good government of the State or any part thereof with respect to the following matters, that is to say:

(a) any matter not included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”

By the combined provisions of Section 4 (3) and (7), all matters in the Exclusive Legislative List set-out in the Second Schedule to the Constitution are exclusively under the federal legislative competence of the National Assembly and cannot be legislated upon by any State House of Assembly. The Supreme Court gave judicial impetus to this reasoning when it considered the “exclusivity” the exclusive legislative list in A-G OF FEDERATION v. A-G OF LAGOS STATE (2013) LPELR-20974(SC) and stated that:

“…apart from the National Assembly, no other legislative assembly whether of state or Local Government (if any) can legally and effectively legislate on any matter listed under the Exclusive Legislative List.” See also Attorney-General, Plateau State v. Goyol (2007) NWLR (Pt. 1059) 57 at 92, paras. D - G (CA)

The issue was also thoroughly considered by the Supreme Court in the popular case of A-G Abia State v. A-G. Federation (2006) 16 NWLR (Pt. 1005) where the apex court per Tobi, JSC concluded that:

"There are two Legislative lists in the 1999 Constitution. These are the Exclusive Legislative List and Concurrent Legislative List. The Exclusive Legislative List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section 4(2) only the National Assembly can exercise legislative powers on the 68 items…While the House of Assembly of a State is prohibited from exercising legislative functions on matters in the Exclusive Legislative List”



UNDER THE CONSTITUTION ONLY THE NATIONAL ASSEMBLY CAN LEGISLATE ON EVIDENCE

The Exclusive Legislative List in the Second Schedule to the 1999 Constitution contains 68 items amongst which “Evidence” is item 23. Evidence by our constitution is a matter only the National Assembly can legislate upon and the National Assembly did so when it enacted the Evidence Act 2011 Cap E14 laws of the Federation of Nigeria which according to its explanatory memoranda has application to all judicial proceedings in or before courts in Nigeria.

Interestingly however, in the “re-enacting” the provisions of the ACJA, some states have attempted a subtle enactment on “other matters” including evidence. This is the precarious position of Section 300 (3) of the ACJL of Delta State.

One must note that Section 1 (3) of the constitution makes the constitution supreme and stipulates that any law inconsistent with the constitution must to the extent of its inconsistency be null and void. See. Towoju v. Gov. Kwara State (2006) ALL FWLR (Pt. 321) 1365 at 1389 (CA). Therefore, whenever a State House of Assembly legislates on any matter outside its legislative competence the act is ultra vires and any law proceeding from it shall be deemed inconsistent with the constitution, null and void to the extent to which it is inconsistent.



SECTION 300(3) OF THE ACJL OF DELTA STATE IS A MATTER OF EVIDENCE AND CANNOT BE LEGISLATED BY A STATE HOUSE OF ASSEMBLY

As a preliminary point, it is incisive to note that the provisions of Section 300(3) of the ACJL of Delta State is not similarly contained under the ACJA 2015 which the law sought to replicate. The inclusion of Section 300(3) in the Delta State Law was therefore an independent act by the State’s House of Assembly to address the issue of delayed trial occasioned by the conducting of a trial-within-trial when a confessional statement is objected to on the ground of involuntariness. The Assembly in undertaking this noble cause however ended up enacting a provision which clearly over-reached the State’s legislative limits under the constitution by conspicuously legislating upon evidence. The said Section 300(3) provides that:

“In the course of any criminal trial, where the admissibility of any confessional statement is objected to by a defendant on the ground of involuntariness, the Court shall note the objection and the ground for the objection thereon and make a decision in its judgement at the end of the trial without conducting a trial within trial”.

The provision clearly touches on evidence in judicial proceedings which, according to item 23 of the Exclusive Legislative List, is a matter exclusively within the legislative competence of the National Assembly. This is particularly so as Section 29(2) of the Evidence Act 2011 already makes provision on the exact issue and states the duty of the trial judge when an Accused person challenges the voluntariness of a confessional statement thus:

“(2) If, in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained –

 a. by oppression of the person who made it; or

b. in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section.



Apparently, Section 29 of the Evidence Act and Section 300(3) of the Delta State ACJL stipulate different positions on the court’s duty when a Defendant objects to a confessional statement as involuntary. There cannot be two provisions on the same issue of “evidence” which conflict each other, particularly since the later was enacted by the State House of Assembly obviously lacking vires to so enact. The provision of Section 300(3) cannot be saved by any thought of argument that is a mere “domestication” of the ACJA on the issue since same provision is not in Section 300 of the ACJA. In effect, Section 300 (3) of the ACJL of Delta State is ultra vires the legislative powers of the Delta State House of Assembly, inconsistent with the constitution and to the extent of its inconsistency is null and void.



IN CONCLUSION

The curious position under Section 300 (3) of the ACJL of Delta State is one which can be carefully avoided in ACJLs of respective States. While the administration of crime is a concurrent matter which both federal and state legislature can legislate over, evidence is a matter exclusively within the legislative territory of the National Assembly. State Houses of Assembly must therefore note that they cannot attempt to amend the Evidence Act by the provisions of their respective State ACJLs. What can be done however is regulate proceedings in court which do not deal with evidence in itself but procedures in criminal proceedings. The ACJL of Lagos State is recommended as veritable guide on how to carefully carry out this difficult legislative task in other to avoid provisions which may be too quickly declared null and void.



Oliver Omoredia Esq.

Associate Obiagwu & Obiagwu LLP

08100193573, oliveromoredia@yahoo.com
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