Whether a Criminal Charge Can be Relisted After Being Struck Out


AJUDUA v. FRN
(2018) LPELR-44815(CA)
Principle
PRACTICE AND PROCEDURE – RE-LISTING OF A SUIT – Whether a Court can order the relisting of a criminal matter which was struck out
“Now to the merits, the quiddity of the Appellant’s contention is that there is nothing in the law providing for the relisting of an information which was struck out and that the said information can only be refiled, not relisted. The Appellant asserted that Sections 6 and 36 of the Constitution, pursuant to which the application to relist was brought, do not provide for relisting of criminal matters and that the Administration of Criminal Justice Law and the Administration of Criminal Justice Act do not have any provisions for the relisting of a criminal matter which is struck out. It is common ground that the Administration of Criminal Justice Law and the Administration of Criminal Justice Act are both silent on relisting of a matter that is struck out. However, Section 252 of the Administration of Criminal Justice Law provides that where there are no adequate provisions in the law, a Court shall adopt the procedure that will do substantial justice between the parties. It was based on this provision that the lower Court in pursuit of substantial justice and avoiding adherence to undue technicality dismissed the Appellant’s preliminary objection. See page 295 of the Records. The Respondent’s application to relist was, inter alia, brought pursuant to Section 6 of the 1999 Constitution. The application did not specify under which of the six subsections of Section 6 which deals with the judicial powers of the Federation it was predicated upon. Howbeit, Section 6 (6) (a) of the Constitution provides as follows: “(6) The judicial powers vested in accordance with the foregoing provision of this section – (a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law.” What do the inherent powers and sanctions of a Court of law entail? This was discussed in some detail by the apex Court in ADIGUN vs. A-G OYO STATE (1987) 2 NWLR (PT 55) 197. Obaseki, JSC stated therein that “The powers or inherent powers of the Court of law are powers which enable it effectively and effectually to exercise the jurisdiction conferred on it.” In the words of Karibi-Whyte, JSC, “It is clear from the wording in Section 6 (6) (a) of the Constitution 1979 [which is in in pari materia with Section 6 (6) (a) of 1999 Constitution] that the exercise of judicial powers is intended to include all the powers and sanctions which a Court of law ought to exercise in order to do justice and uphold its dignity.” In his contribution, Oputa, JSC added “… the inherent power of a Court is the power which is itself essential to the very existence to the Court as on institution charged with the dispensation of justice … Inherent powers of the Court are therefore those powers of the Court which are reasonably necessary for the administration of justice in the Court.” See also ERISI vs. IDIKA (1987) LPELR (1160) 1 at 29-32. Quaere, could the lower Court, in order to effectively and effectually exercise its jurisdiction to hear criminal matters, have in its inherent powers ordered that the matter be relisted? I would answer in the affirmative. In AKILU vs. FAWEHINMI (NO. 2) (1989) LPELR (339) 1 at 136, Nnaemeka-Agu, JSC stated thus: “…inherent jurisdiction or inherent power (as it is more commonly called) of Court is that which is not expressly spelt out by the Constitution, or in any statute or rule but which can, of necessity, be invoked by any Court of record to supplement its express jurisdiction and powers. It is a most valuable adjunct to the express jurisdiction or powers conferred on our Courts by the Constitution, any law or rule of Court.” I kowtow. See also EFCC vs. SULEIMAN (2016) LPELR (40790) 1. Given the state of the law, it was a judicial and judicious exercise of discretion for the law Court to have proceeded pursuant to its inherent powers under Section 6 (6) (a) of the 1999 Constitution. This remained so irrespective of the fact that there was no express provisions in the substantive law providing for the relisting of an Information. The Court by Section 262 of the Administration of Criminal Justice Law is enjoined to adopt a procedure that would lead to substantial justice. This Court made the following pronouncement on the nature of the inherent jurisdiction of a Court in the case of AJOSE vs. IGP (2016) LPELR (40065) 1 at 8-10. Hear my Lord, Nimpar, JCA: “The trial Court is a High Court duly constituted and being a Court of record, it has inherent powers to make orders for the due determination of matters brought before it. The inherent jurisdiction of the Court is an adjunct to assist the delivery of justice only when the laid down procedure is silent but it ought to be evocable only when it promotes the ends of justice. An inherent jurisdiction of Court is that power which a Court of law exercises for the purpose of delivering substantial justice in any matter with which it is seized under certain peculiar circumstances. The inherent jurisdiction supplements the statutory powers of the Court and is dictated by the need for the Court to fulfil itself in order to meet the ends of justice. See UNIVERSAL OIL LTD V NDIC (2008) 6 NWLR (PT. 1083) 254. It is exercised in the interest of justice where necessary in a particular case. This power is constitutionally provided for under Section 6(6) (a) and (b) of the 1999 Constitution as amended, which states as follows:”6 (6) The judicial powers vested in accordance with the foregoing provisions of this section – (a) shall extend to, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a Court of law. (b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil right and obligations of that person. It is therefore wrong to contend that the Court cannot exercise certain power unless allowed by a substantive law. Certain aspects of judicial powers exercised by the Courts have by constant practice come to acquire a character that is binding. Inherent powers that belong to the Court includes taking those steps that would allow for due administration of justice. The inherent jurisdiction of the Court is exercisable only as part of the process of the administration of justice; it is part of the procedural law, both civil and criminal and not of substantive law. It is invoked only in relation to the process of litigation. See ALHAJI SELANI MABERA v PETER OBI & ANOR (1972) ALL NLR 772.” In conclusion, the lower Court was not wrong when it dismissed the Appellant’s objection as it had the vires pursuant to its inherent powers to entertain the application for the relisting of the Information and it was a judicious and judicial exercise of discretion.” Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 19 – 25 Paras D – C)

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