What is wrong with the Court of Appeal (Fast Track) Practice Directions 2014?

in respect of four of the seven classes of appeals to which they apply – are ultra vires the President of the Court of Appeal under relevant provisions of the Exclusive Legislative List in Part I and Paragraph 2(b) of Part III of the Second Schedule to the 1999 Constitution of the Federal Republic of […]

in respect of four of the seven classes of appeals to which they apply – are ultra vires the President of the Court of Appeal under relevant provisions of the Exclusive Legislative List in Part I and Paragraph 2(b) of Part III of the Second Schedule to the 1999 Constitution of the Federal Republic of Nigeria. We take them seriatim.
1.      It  Violates the Right to Equal Protection of the Law.
(i) The directions do not apply across the board to all appeals or litigants, but rather to a select few, namely debt appeals and appeals connected with corruption, human trafficking, kidnapping, money-laundering, rape and terrorism. No rationale or reason is given for this in the ipsissima verba of the directions beyond a mere declaration in Paragraph 1 that such appeals are “appeals by or against national human rights, intelligence, law enforcement, prosecutorial or security agencies such as EFCC, ICPC, National Human Rights Commission, State Security Service”. We submit that this discriminates against other classes of litigants, such as those involved in murder/homicide, armed robbery and appeals pertaining to/connected with the sale of narcotics or fake/adulterated drugs, etc.
(ii)  We submit that this sort of discrimination violates the right to equal protection of the law. For the meaning of this right, we refer to Black’s Law Dictionary, 8th edition, page 577, where it is defined as follows:  
“Equal protection of the laws demands that laws will only be legitimate if they can be described as just and equal. Equal protection guarantees that the government must treat a person or class of persons the same as it treats other persons or class in like circumstances . . . equal protection means a legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right or involves a suspect classification, it is unconstitutional unless it can withstand strict scrutiny.” (emphasis supplied).
(iii) The right is codified in Article 3(2) of the African Charter on Human & Peoples Rights which was ratified and adopted as part of Nigerian law by the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act 1983. It provides that “Every individual shall be entitled to equal protection of the law”. The Court of Appeal considered the scope of this right in NNPC v FAWEHINMI (1998)7 NWLR pt. 559 pg. 598 @ 616 where Ayoola, JCA, (as he then was) held that:
“The guiding principle is that all persons and things similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed . . . it forbids discrimination between persons who are similarly in similar circumstances or conditions. It does not forbid different treatment of unequals. The rule rather is that like should be treated alike and unlike should be treated differently”. The court held further that:
“A party who claims that Article 3 (of the African Charter) has been or is likely to be infringed in regard to him must show:
•        That he belongs to that class within which there has been inequality of treatment;
•        That there is a classification for the purposes of the particular law; and
•        That the classification is arbitrary or irrational or otherwise impermissible . . . permissible classification must satisfy the twin requirements of intelligible differentia and rationality” (emphasis supplied).
(iv)   Justice is blind. Thus, all litigants are equal or similarly circumstanced. The obvious question, therefore, is why does the Practice Directions discriminate between them as it evidently does? If it is on account of their presumed gravity, we submit that there is little or no difference between the species of appeals which are dealt with in the Directions and those which are excluded. In other words, there is no intelligible differentia between appeals involving debt, corruption, human trafficking, kidnapping and money laundering – which are covered, and those involving murder/homicide, armed robbery, narcotics and sale of fake/adulterated drugs – which are not.
(v)  We submit that on the contrary, there is an arguably greater public interest in the speedy resolution of the latter, i.e. murder/homicide, armed robbery, narcotics, etc, because of their obviously more heinous character. To put it simply, the classification of appeals for the purposes of the Directions is arbitrary, if not irrational. To the extent that Directions confer the privilege of “fast track” on the specified classes of appeals without any discernible rationale –  or intelligible differentia – we submit that it amounts to a violation of the right to equal protection of the law as laid down by the Court of Appeal in NNPC v FAWEHINMI, supra.
In the event of a conflict between the African Charter and any other statute, the Charter will prevail: I.G.P. v ABUBAKAR (2007) 18NWLR pt. 1066 pg. 457 @ 500C, per  Adekeye, JCA
2.     (i) The other reason why the Directions – or at least some of them –  are     invalid   is that the subject matter of four out of the seven classes of appeals to which they apply, are all contained in the Exclusive Legislative List of the 1999 Constitution – only the National Assembly is competent to legislate on matters on that List. The affected appeals, in our view, are debt appeals and appeals connected with or pertaining to corruption, money – laundering and terrorism: see paragraph 1 of the Directions. We submit that by virtue of relevant provisions in Part I (the Exclusive Legislative List) and Part III of the 1999 Constitution, only the National Assembly is competent to enact rules of practice and procedure on the subject matter of such appeals. The said provisions of the Constitution, with their cross-references in the Directions, are as follows:
• Item 5 of the Exclusive Legislative List; bankruptcy and insolvency: (Debt appeals);  
• Section 15(5) (“The State shall abolish all corrupt practices”) and Item 60(a) of the Exclusive Legislative List (“The Independent Corrupt Practices & Related Offences Commission Act” – See Att. Gen. of Ondo State v Att. Gen. of the Fed. (2002) 9 NWLR pt. 722 pg. 222 @382, 383 & 385 (Corruption);
•  Items 6, 15, & 62 – of the Exclusive Legislative List: banks, banking, bills of exchange and promissory notes, currency, coinage and legal tender; and trade and commerce – (Money Laundering);
• Items 2 & 17 of the Exclusive Legislative List: arms, ammunition and explosives; defence – (Terrorism)
(ii)  We submit that by virtue of Item 68 of the Exclusive List and Paragraph 2(b) of Part III of the Second Schedule to the Constitution, only the National Assembly is competent to enact the affected Practice Directions. Accordingly, the provisions of the Directions dealing with debt appeals, corruption, money laundering and terrorism are all ultra vires the President of the Court of Appeal and are, therefore, invalid, null and void. By virtue of Section 1(1) & (3) of the Constitution, the Constitution is supreme and any law that is inconsistent with it will be invalid, null and void to the extent of the inconsistency.    

 Barrister Abubakar D. Sani practices law in Abuja and Kano