Administration of Criminal Justice Act (ACJA) was signed into law by former president
Goodluck Jonathan in 2015 and has since its enactment revolutionized the
administration of criminal justice in the country. The provisions of the Act
have been largely re-enacted in the Administration of Criminal Justice Law of
Delta State 2017.  This write-up
considers the provision of Section 300 (3) of the Administration of Criminal
Justice Law of Delta State and argues its sustainability in the light of constitutional
provisions on the state’s legislative competence to enact same.


the Constitution of the Federal Republic
of Nigeria 1999 (As amended)
clearly sets out matters upon which federal
and state legislative arms exercise competence. Section 4(1)(3) & (7) of the Constitution provides:

“4. (1) The legislative
powers of the Federal Republic of Nigeria shall be vested in a National
Assembly for the Federation, which shall consist of a Senate and a House of

 (3) The
power of the National Assembly to make laws
for the peace, order and
good government of the Federation with respect to any matter included in the Exclusive Legislative List shall, save
as otherwise provided in this Constitution, be to the exclusion of the Houses
of Assembly of States

(7) The House of Assembly of a State shall
have power to make laws for the peace, order and good government of the State
or any part thereof with respect to the following matters, that is to say

(a) any matter not included in the
Exclusive Legislative List
set out in Part I of the Second Schedule to
this Constitution.”

the combined provisions of Section 4 (3)
and (7)
, all matters in the Exclusive
Legislative List set-out in the Second Schedule to the Constitution are
exclusively under the federal legislative competence of the National Assembly and
cannot be legislated upon by any State House of Assembly. The Supreme Court
gave judicial impetus to this reasoning when it considered the “exclusivity”
the exclusive legislative list in A-G OF
and stated that:

“…apart from the
National Assembly, no other legislative assembly whether of state or Local
Government (if any) can legally and effectively legislate on any matter listed
under the Exclusive Legislative List.” See also
Attorney-General, Plateau State v.
Goyol (2007) NWLR (Pt. 1059) 57 at 92, paras. D – G (CA)

issue was also thoroughly considered by the Supreme Court in the popular case
of A-G Abia State v. A-G. Federation
(2006) 16 NWLR (Pt. 1005)
where the apex court per Tobi, JSC concluded that:

“There are
two Legislative lists in the 1999 Constitution. These are the Exclusive
Legislative List and Concurrent Legislative List. The Exclusive Legislative
List of Part 1 Schedule 2 to the Constitution contains 68 items. By Section
4(2) only the National Assembly can exercise legislative powers on the 68 items…While the House of Assembly of a State is
prohibited from exercising legislative functions on matters in the Exclusive
Legislative List”


Exclusive Legislative List in the Second Schedule to the 1999 Constitution
contains 68 items amongst which “Evidence” is item 23. Evidence by our
constitution is a matter only the National Assembly can legislate upon and the
National Assembly did so when it enacted the Evidence Act 2011 Cap E14 laws of the Federation of Nigeria which
according to its explanatory memoranda has application to all judicial
proceedings in or before courts in Nigeria.

however, in the “re-enacting” the provisions of the ACJA, some states have
attempted a subtle enactment on “other matters” including evidence. This is the
precarious position of Section 300 (3) of the ACJL of Delta State.

must note that Section 1 (3) of the constitution
makes the constitution supreme and stipulates that any law inconsistent with
the constitution must to the extent of its inconsistency be null and void. See. Towoju v. Gov. Kwara State (2006) ALL
FWLR (Pt. 321) 1365 at 1389 (CA).
Therefore, whenever a State House of
Assembly legislates on any matter outside its legislative competence the act is
ultra vires and any law proceeding from it shall be deemed inconsistent with
the constitution, null and void to the extent to which it is inconsistent.


a preliminary point, it is incisive to note that the provisions of Section
300(3) of the ACJL of Delta State is not similarly contained under the ACJA
2015 which the law sought to replicate. The inclusion of Section 300(3) in the
Delta State Law was therefore an independent act by the State’s House of
Assembly to address the issue of delayed trial occasioned by the conducting of
a trial-within-trial when a confessional statement is objected to on the ground
of involuntariness. The Assembly in undertaking this noble cause however ended
up enacting a provision which clearly over-reached the State’s legislative
limits under the constitution by conspicuously legislating upon evidence. The
said Section 300(3) provides that:

“In the course of any criminal trial, where the
admissibility of any confessional statement is objected to by a defendant on
the ground of involuntariness, the Court shall note the objection and the
ground for the objection thereon and make a decision in its judgement at the
end of the trial without conducting a trial within trial”.

provision clearly touches on evidence in judicial proceedings which, according
to item 23 of the Exclusive Legislative List, is a matter exclusively within
the legislative competence of the National Assembly. This is particularly so as
Section 29(2) of the Evidence Act 2011
already makes provision on the exact issue and states the duty of the trial
judge when an Accused person challenges the voluntariness of a confessional
statement thus:

“(2) If, in any
proceedings where the prosecution proposes to give in evidence a confession
made by a defendant, it is represented to the court that the confession was or
may have been obtained –

 a. by oppression of the person who made it; or

b. in consequence
of anything said or done which was likely, in the circumstances existing at the
time, to render unreliable any confession which might be made by him in such
consequence, the court shall not
allow the confession to be given in evidence against him except in so far as
the prosecution
proves to the court beyond reasonable doubt that the
confession (notwithstanding that it may be true) was not obtained in a manner
contrary to the provisions of this section

Section 29 of the Evidence Act and
Section 300(3) of the Delta State ACJL
stipulate different positions on the court’s duty when a Defendant objects to a
confessional statement as involuntary. There cannot be two provisions on the
same issue of “evidence” which conflict each other, particularly since the
later was enacted by the State House of Assembly obviously lacking vires to so
enact. The provision of Section 300(3) cannot be saved by any thought of argument
that is a mere “domestication” of the ACJA on the issue since same provision is
not in Section 300 of the ACJA. In effect, Section 300 (3) of the ACJL of Delta
State is ultra vires the legislative powers of the Delta State House of Assembly,
inconsistent with the constitution and to the extent of its inconsistency is
null and void.


curious position under Section 300 (3) of the ACJL of Delta State is one which
can be carefully avoided in ACJLs of respective States. While the
administration of crime is a concurrent matter which both federal and state
legislature can legislate over, evidence is a matter exclusively within the
legislative territory of the National Assembly. State Houses of Assembly must
therefore note that they cannot attempt to amend the Evidence Act by the
provisions of their respective State ACJLs. What can be done however is
regulate proceedings in court which do not deal with evidence in itself but
procedures in criminal proceedings. The ACJL of Lagos State is recommended as
veritable guide on how to carefully carry out this difficult legislative task in
other to avoid provisions which may be too quickly declared null and void.

Oliver Omoredia Esq.

Associate Obiagwu & Obiagwu LLP