Nigeria: Elevating Trial Judges To A Higher Bench: Impact On Part- Heard Matters

Last Updated: 3 August 2018
Article by Peter Olaoye Olalere and Olaniyi Fayomi


The recent approval and appointment of new Judges to the Court of Appeal by President Muhammadu Buhari3 from the bench of the Federal High Court, High Court of the States and High Court of the Federal Capital Territory, Abuja dredges up age-old issues in the administration of Justice with consequences that are far-reaching on the litigants and counsel in significant ways.

The immediate fallout of this development is that the matters that were at trial and post-trial stages before the elevation of the Judge(s) originally presiding over these matters will normally have to commence de novo. This is often without due regard to the checkered history of the matters, the time, energy and efforts so far expended on the affected cases. More pathetic are matters within the post-trial category (i.e., matters ordinarily awaiting delivery of judgment) as litigants of matters in this category suffer more hardship. It is a well-known principle that justice delayed is justice denied and this cannot be truer in any other scenario than where a matter has been set down for judgment and the trial Judge is suddenly elevated.

Legal Practitioners and other stakeholders within and outside the Nigerian legal industry have over time been in the forefront of advocacy for accelerating the dispensation of justice in our court system in line with a significant part of the objectives of some of the rules of our High Courts which is 'efficient and speedy dispensation of justice'.

The recent experience of the authors, which inspires this article, drives home the stark reality that there are still many grounds to cover to put our justice administration on a pedestal of fulfilling its mandate. The authors are members of a team of Attorneys who represent the Plaintiffs in about 26 lawsuits across the USA and before Nigerian courts. These suits arose from the unfortunate Dana Airline's aviation accident that occurred in Iju-Ishaga area of Lagos on 3rd June 2012 – and all 26 cases were formerly pending before one of the judges recently elevated to the Court of Appeal from the bench of the Federal High Court, Ikoyi, Lagos. Before his Lordship's recent elevation to the Court of Appeal's bench on the 22nd June 2018, trial had progressed substantially in 9 of the 26 cases; and final written addresses had in fact, been adopted on 11th April 2018 in 1 of the 26 cases with judgment reserved for 25th May 2018. However, the judgment was not ready on 25th May 2018 and his Lordship subsequently adjourned the matter to 6th July 2018 for judgment. The direct impact of this development on the families affected by the legal and practical consequences of his Lordship's elevation cannot be quantified monetarily, emotionally or psychologically!

Comparatively, 2 of the 26 cases that were filed and retained in the USA had been settled. Settlement was reached by parties after all preliminary applications were expeditiously decided by the USA court and the trajectory of the cases became clear to both counsel and litigants involved in those cases.


The provisions of section 294(2) of the 1999 Constitution4 partly addresses the issue as it relates to judgments pending before the Courts of Appeal and Supreme Court with the proviso that another justice of the court can deliver and pronounce the judgment of his learned brother who is absent by reason of elevation, retirement, dismissal or death. The provision of section 294(2) of the Constitution of the Federal Republic of Nigeria, 19995 states as follows:

'Each Justice of the Supreme Court or the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of another Justice who delivers a written opinion:

Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced by another justice whether or not he was present at the hearing or not'. (Emphasis ours)

This provision has also been judicially pronounced upon in the case of Star Deep Water Petroleum Ltd & Ors v. A.I.C Limited & Ors.,6 as well as plethora of other cases. The question is what inference can be drawn from this proviso as regards the pending matter before the High Court Judge elevated to the Court of Appeal or Supreme Court? Or better still, can the judgment written by a Judge who has subsequently been elevated to the Appeal Court or Supreme Court but delivered and pronounced by another Judge be said to be valid at law? The High Court laws of various States including that of the Federal High Court also provide little assistance in resolving these queries as they have all practically omitted to make precise provisions for situations where a Judge is allowed to pronounce the judgment of his learned brother (upon elevation to the Court of Appeal or Supreme Court) who presided over a trial and wrote the judgment. The combined effect of sections 23 and 21 of the Federal High Court Act7 further makes it practically impossible to statutorily salvage the effect of elevation of High Court Judges on trial and post-trial matters pending before the Judges before the elevation. Section 23 of the Federal High Court Act8 provides as follows:

"every proceeding in the Court and all business arising therein shall, so far as is practicable and convenient and subject to the provisions of any enactment or law, be heard and disposed of by a single judge, and all proceedings in an action subsequent to the hearing or trial, down to, and including the final judgment or order, shall so far as is practicable and convenient, be taken before the judge before whom the trial or hearing took place" (Emphasis ours)

While section 21 provides thus;

"where the judge who is presiding over the sitting of the Court is for any cause unable or fails to attend the same on the day appointed, and no other judge is able to attend in his stead, the Court shall stand adjourned from day to day until a judge shall attend or until the Courts shall be adjourned or closed by order under the hand of a judge".

Furthermore, section 58 of the High Court Law of Lagos State9 which is in pari materia with the above stated provisions of the Federal High Court Act10 and on all fours with those of other States of the Federation provides:

"subject to the provisions of this or any other enactment and subject to any rules of court, all civil and criminal causes or matters and all proceedings in the High Court and all business arising shall so far as practicable and convenient be tried, heard and disposed of by a single judge, and all proceedings in an action subsequent to the hearing or trial down to and including the final judgment or order shall so far as is practicable and convenient be taken before the judge before whom the trial or hearing took place".

These provisions align with section 294 (2) of the Constitution which excludes the High Courts from the list of Courts to which the provision applies. This means the legislature's target is that another High Court judge cannot validly deliver the judgment of his learned brother who has left the bench of the High Court based on the maxim of interpretation, Expressio Unius Est Exclusio Alterius, - meaning that the expression of one thing implies the exclusion of the other. It will appear that the drafters of the above referred provisions contemplated the situation of elevation of the High Court Judges and that must have been the reason behind the usage of the phrase "so far as is practicable and convenient be taken before the judge before whom the trial or hearing took place". However, the relevant question that may be asked again is whether the use of this phrase has taken care of the effect of elevation of judicial officers to the Court of Appeal or Supreme Court. In our opinion, the above question should be answered in the negative. It is in this wise that a legislative enactment geared towards remedying this lacuna is suggested in this article in order to bring an end to the injustice unavoidably occasioned on litigants and counsel by the resulting effect of elevation of the High Court Judges to a higher Court.

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1. Peter Olaoye Olalere, Senior Associate with the Dispute Resolution Department of S. P. A. Ajibade & Co., Lagos Office, Nigeria.

2. Olaniyi Fayomi, Associate with the Dispute Resolution Department, SPA Ajibade & Co., Lagos Office.

3. Grand Commander of the Federal Republic of Nigeria (GCFR).

4. Cap A2 Laws of the Federation of Nigeria, 2004 (as amended).

5. See fn 4.

6. (2011) LPELR-4979(CA).

7. Cap F12 Laws of the Federal Republic of Nigeria, 2004.

8. See fn 7.

9. CAP H5, Laws of Lagos State, 2015.

10. See fn 7.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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