Duty of a trial court to refer a question of constitutionality
For ourselves, we reason that the determination of inconsistency or otherwise of SMCD 20 would involve an interpretative exercise which did not rest with the trial Court. It fell within the exclusive jurisdiction of this Court. The provisions in articles 2(1) and 130(2) came into play the moment the constitutionality of SMCD 20 and the quest of its striking down arose even at that stage of the trial. The learned trial Judge failed to apply her mind to the critical effect the issue bore on the proceedings. She ought to have noticed that the determination the applicant was seeking went to the very root of the proceedings before her. The fact that the charges for which the applicant and others were standing trial stood to collapse if SMCD 20 was found to be inconsistent with the Constitution should have informed her position.
As she decided to refuse the application, the trial Judge should have paused and asked herself, what was to become of the question of the constitutionality of SMCD 20. It seems to us that, by refusing to make reference and proceeding with the trial, the trial judge had concluded an affirmative answer to the question. By that she assumed a role outside her jurisdictional province to usurp the clear authority of this Court under article 2(1) of the Constitution.
The trial court had no business determining any alternative procedure for the exercise of this Court’s exclusive original jurisdiction. Once there was case that fell within the exclusive original jurisdiction of this Court, her mandate was cut out. She was bound to make reference. She could not determine any procedural matters regarding the exercise of this Court’s jurisdiction.
Effect of a reference on the proceedings before the trial court
Trial Judges must always recognize that the reference jurisdiction of this Court under article 130(2) is a useful tool to aid justice delivery. Admittedly, it is one jurisdiction which may be abused. A party with a bad case may decide to throw in any such application to frustrate proceedings against him. But that is not a good reason for a trial court to turn a blind eye to obvious cases requiring reference. It is safer to proceed with the mindset that reference to this Court does not necessarily terminate proceedings in trial Courts. Proceedings are merely stayed to abide the decision of the Court as to the future course of the matter.
Stage of the proceedings at which a reference may be made
The final ground upon which the trial Judge refused the application was that the applicant had closed his defence at the time he made the application. Again, she fell into another error. The stage of the proceedings before her did not matter to her constitutional obligation to make reference once a genuine question of constitutionality of an enactment was raised. In the AFOKO case, the constitutionality of the nolle prosequi had arisen at the very tail end of the proceedings. This Court was however ready to entertain the issue in exercise of its power under 130(2). We dare say that even a prisoner in jail may invoke the jurisdiction of this Court to strike down an enactment under which he or she had been tried, convicted and jailed. Fair trial rights to do not cease upon conviction and sentence. They extend to post-trial matters including appeals and similar processes.
