Criminal trials in the Nigerian legal system are fraught with delays which arise due to several factors. Section 36(4) of the Constitution of the Federal Republic of Nigeria
entitles a person charged with a criminal offence to a fair hearing within a reasonable time. In the case of Ariori & Ors. v. Muraimo Elemo & Ors (1983) 1 SC 13 at 24, the Supreme Court stated that fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. The court went further to hold in Eze v. FRN (2017) LPELR-42097(SC) that "reasonable time" must mean the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done. What constitutes reasonable time in precise terms, had never been easy for the courts to determine. It is determined by the surrounding circumstances of each case. (Zawaciki & Anor v. Saleh & Ors (2022) LPELR-57406(CA))
The Administration of Criminal Justice Act (ACJA) introduced laudable provisions to minimize delays and to particularly avoid situations where criminal trials might have to be tried de novo. For example, where a Judge or Magistrate who has tried a case is prevented by illness or other unavoidable cause from delivering judgment or sentence, the judgment or the sentence, if it has been reduced into writing and signed by the Judge or Magistrate, may be delivered and pronounced in open court by any other Judge or Magistrate in the presence of the defendant. (Section 315 ACJA)
Active steps have also been taken in some jurisdictions to limit delays in criminal trial that could be occasioned by the transfer of a trial Judge from one judicial division to another. Judges on transfer in Abia State are allowed by the 2020 Practice Directions to move with and conclude all pending cases which have entered the defence stage. A Judge must hear and determine the case once the claimant has closed his case or is through with the presentation of witnesses and the witnesses have been cross-examined. In Chief Osigwe Egbo & 13 Ors. v. Chief Titus Agbara & 4 Ors, the Supreme Court made it clear that a Judge of a State High Court having jurisdiction to sit in one of the Judicial Divisions of that State does not lose the jurisdiction to sit and adjudicate on a matter by the mere fact of his transfer to another Judicial Division of the same State.
Section 396 of ACJA which allowed a High Court Judge elevated to the Court of Appeal to conclude certain part-heard cases, was declared unconstitutional in Uzor Orji Kalu’s case. Now, all cases part-heard by judges elevated to higher courts must be tried de novo. In Omisore v The State (2005), a trial de novo was explained to mean a new trial where a case begins from the beginning regardless of the extent of the previous proceeding. The effect of starting the case afresh is to sweep clean all previous proceedings and its consequence is to render null and void all pending orders including order of bail. (Bakule v. Tanerewa (Nig.) Ltd (1995) NWLR (PT. 380) 278)
Trials de novo may occur in a variety of circumstances, including but not limited to the death, retirement, resignation of a trial Judge, the elevation of a trial Judge to higher court, the removal or sanctioning of a Judge by the NJC under its disciplinary jurisdiction, the transfer of a pending case from the one Judge / Court to another, and upon the order of an Appellate Court in appropriate/deserving situations particularly where an Appellate Court declares the proceeding a nullity. The ruling in Uzor Orji Kalu’s case declaring Section 396 of ACJA unconstitutional has stirred a debate on the desirability or otherwise of a constitutional amendment to restore the provision. We examine how two sister jurisdictions, Ghana and Uganda, minimize the occasions to start trials de novo.
The Supreme Court of Ghana, in the case of Anane v Agyemang and others [2014] GHASC 126, citing Awudome (Tsito) Stool v Peki Stool [2009] SCGLR 681, affirmed the procedure for the adoption of previous proceedings in these terms: -
“(1) The established rule was that when a case has been transferred from one High Court to another, the parties had the option to adopt the proceedings or to have the trial started de novo. In civil proceedings, the ultimate question of whether or not evidence already adduced before a previous judge be adopted should not rest on the parties’ consent. It should exclusively be at the discretion of the new judge who takes over the partly heard case. Specific factors that would influence the decision would include the length of time that the case has been on the court’s calendar, the stage at which a trial has reached, the number of witnesses already called, the disputed issues, the nature of the evidence- mostly narrative or documentary, weighty objections by either party, if any, to its reliability, the availability of the witnesses who has already testified, the quality and reliability of the record or transcript.”
Also in Adam v Nuamah (68 of 2019) [2020]GHACA 1, it was held that trial de novo may be denied where: -
- the protracted trials and delay in the delivery of judgments;
- they afford parties undue advantage to reconstruct their case and thus waste more time;
- they encourage parties to seek to embellish or improve their case if they believe that their performance or the performance of their witnesses did not go the way they wanted;
- they can sometimes lead to denial of justice where the witness or party is dead or otherwise unavailable and there is no other means of haring the truth except to rely on what has already been reproduced by the court under cross-examination in the previous proceedings;
- there will be denial of justice where vital exhibit is lost or otherwise unavailable but details of it are on the record and could have been used to write the judgment if the previous proceedings had been adopted; and
- in the event of the last two reasons, trials may have to be discontinued or cases abandoned or justice denied when, indeed, adoption of the record would have saved the continuation of the trial and the entire case.
In the Republic v. Justice Osei Kofi, the court held that although the criminal legislation is silent on whether or not criminal proceedings are to always start de novo, the discretion lies with the Judge before whom such a situation presents itself. In this case, the court adopted the prior proceedings.
In Uganda, Order 18 r 11 of the Civil Procedure Rules provides that: -
“(1) Where a judge is prevented by death, transfer or other cause from concluding the trial of a suit, his or her successor may deal with any evidence taken down under rules 1 to 10 of this Order as if the evidence had been taken down by him or her or under his or her direction under those rules, and may proceed with the suit from the stage at which his or her predecessor left it.
- (2) The provisions of sub rule (1) of this rule shall, so far as they are applicable, be deemed to apply to evidence taken in a suit transferred under section 18 of the Act.”
These approaches to adoption of part-heard civil cases in Ghana and Uganda and in some criminal cases in Ghana, can be debated and tested with modifications.
Uganda has implemented several other measures in a bid to fulfill its constitutional, regional and international human obligation to respect the right to speedy trials. The Electronic Court Case Management Information System (ECCMIS) was deployed in early 2022. The ECCMIS is a fully-featured system that automates & tracks all aspects of a case life cycle from initial filing through disposition & appeal as to each individual party for any case type. It features e-filing, e-payment, access to case status via mobile phones, e-processing (case management online), reporting/analytics and notifications through e-mails, text messaging and internal system notifications. All stakeholders in a case have the opportunity to track progress of the case through an integrated national e-justice system that streamlines processes, eases administration.
These innovations are not without teething problems such as poor internet connection, insufficient human resource skilled in ICT, the cost of e-justice, etc. To mitigate these challenges, there has been significant recruitment of judicial officers at the Magistrate and High Court levels, which it is hoped, will translate into better case work load management. Also, a Case Backlog Monitoring Committee headed by the Deputy Chief Justice reviews the needs of the Courts in order to improve services, set performance benchmarks and monitors case disposal at individual and global levels.
In Ghana, the Practice Direction (Effective Case Completion Strategies) 2019 provides guidelines for effective case planning in civil and criminal matters and other related matters. The judge shall cause a Case Completion Plan (CCP) to be prepared at the Case Management Conference. The court clerk then immediately records the trial dates and times for the case in the Court diary together with respective time for cross-examination to ensure that the court diary is not overburdened and quickly dispensed.
An effective case management system will guide the Administrative Judge in assignment of cases, enable judges have manageable calendars and maintain steady flows of cases on the docket. A functional case management system will enable a judge have only so many cases pending at each point in time. The opportunity for elevation to higher bench will therefore not constitute a problem that worsens the delayed justice or case backlog dilemma. Additionally. Judges with significant part-heard matters should be required to complete them before assumption of office on the higher bench.