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ABOLITION OF STAY OF PROCEEDINGS BY SECTION 306 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015: A PAPER TIGER?
 

The provision of Section 306 of the Administration of Criminal Justice Act, (ACJA) 2015 has generated debates as to whether or not that section has abolished stay of proceedings in criminal matters. That Section provides as follows:

“An application for stay of proceedings in respect of a criminal matter before the Court shall not be entertained”

It has been the contention of most Prosecutors that the Legislature has by that Section abolished stay of proceedings in a criminal matter. However, this writer is of the view that the legislature need to do more to achieve that intendment.

It is respectfully submitted that Section 306 (ACJA) 2015 is as it stands a paper tiger. It is unconstitutional, null, void and of no effect. The jurisdiction which a superior court of record has to preserve the res by ordering a stay of proceedings is inherent. Inherent jurisdiction of the Court is denoted by Section 6 (6) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN), As Amended. Support for this is found in the Supreme Court decision in Ogunremi v Dada (1962) ANLR 657 where it was held, per Brett FJ as follows:

"The authorities appear to me at least to justify the proposition that a court of record whose judgments are subject to appeal has inherent power to stay the execution of any judgment against which an appeal has been brought, in order to render the right of appeal more effective...The power to stay execution of its own judgment pending some further proceeding in the case, where the interests of justice require it, it is inherent in a court of record, and is therefore vested in the High Court by the Constitution of the Region"

Section 306 of the ACJA is inferior to Section 6 (6) of the CFRN. It is inferior to the provisions of the Constitution which created the Court and invested it with inherent jurisdiction. It cannot undermine it. Section 6 (6) CFRN is a provision of the Constitution, which is the grundnorm.

An application for stay of proceedings is usually brought under Sections 6, 36 and 241 of the CFRN. Consequently any Prosecutor’s argument that Section 306 of the ACJA (or any other provision in the Act for that matter) has deprived a superior court of record of the powers to entertain an application for stay of proceedings in a criminal matter, is invalid and, with due respect, ineffectual, because those sections seek to deprive the court of part of its cconstitutionally enshrined inherent powers.

Indeed, it will take an alteration to the Constitution, particularly, Section 6 (6) thereof, for a superior Court to be deprived of its inherent jurisdiction to preserve the res. That Section has not been amended. Any submission by a Prosecutor or Counsel to the effect that Section 306 of the ACJA (or any other provision in the Act for that matter) has deprived a Superior Court of record of the powers to entertain an application for stay of proceedings in a criminal matter must be rejected.


The provision of Section 306 of the Administration of Criminal Justice Act, (ACJA) 2015 has not and cannot deprive a Superior Court of its inherent jurisdiction to stay proceedings in a criminal matter unless and until there is an amendment to Section 6 (6) of the Constitution.

 
 
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