THE NULLIFICATION OF ORJI UZOR KALU’S CONVICTION BY THE SUPREME COURT: A SETTLED LAW UPHOLDING CONSTITUTIONALISM

The most controversial and decisive arm of every government operating constitutionalism is the judiciary, perhaps these may be because since the rule of law prevails, the supreme Court which is the highest repository of judicial powers reserves the  due powers to interpret the actions and inactions of all other arms of the government.

The attendant consequence of the above is that the decisions of the  supreme Court is final and appealable to God only.

A seven man panel of the supreme Court on Friday the 8th day of May, led by Hon. Justice Amina Augie nullified the conviction of Orji Uzor Kalu on the basis that the presiding Justice Mohammed Idris lacked the jurisdiction  to entertain the matter by virtue of his appointment to the senior bench. This decision of the Supreme Court was greeted with approvals and criticisms from legal practitioners, scholars, jurist, political commentators, journalists and even laymen. 

This paper seeks to carry out an exposure by way of cleaning the Aegian.  The writer however finds solace in comparing the opposing positions of learned Senior Advocates of Nigeria Femi Falana SAN alongside Mike Ozehkome SAN.  This paper shall also look into the previous decisions of the Supreme Court alongside the Administration of Criminal Justice Act 2015 and the 1999 Constitution of the Federal Republic of Nigeria as amended.

It should not be over emphasized that chapter 7 of the Constitution which provides for the Judicature (from sections 230 to 296) only made provisions for when, how and what qualifications and standards are needed to serve as a judicial officer, and the attendant legal consequences being that upon oath of office as a particular judicial office holder, all other offices are extinct as a judge cannot act in dual capacity, such not being within the contemplation of the drafters of the Constitution. Hence, the Constitution never envisaged and could not have envisaged the need for an officer to preside over two different courts and so provided strictly for an officer to a office. This is the tenor of the law. 

On the other divide  Section 396(7) of the ACJA, the Act provided as follows: “Notwithstanding the provision of any other law to the contrary, a Judge of the High Court, who has been elevated to the Court of Appeal, shall have dispensation to continue to sit as a High Court Judge only for the purpose of concluding any partly-heard criminal matter pending before him at the time of his elevation; and shall conclude the same within a reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal.” 

This is clearly in conflict or ‘furtherance’ of the Constitution.  

Before I continue, it is important however to lay open that the jurisprudence behind the enactment of Section 396(7) of the ACJA is sacrosanct. Amid the corrupt and other related offence charges of public officer’s from 2007 to 2014, so many trial judges where elevated to the Court of Appeal leading to complains and lamentation from prosecutors of having to start a fresh trial all over, hence the need and enactment of the provision. 

However, it is submitted in line with the words of Awolomo (SAN) thus,“we hold the view, respectfully, that the hierarchy of superior courts of records in Nigeria is not made separate in the constitution for nothing. Indeed, the making and separation of the provision in respect of each hierarchy of court from High Courts and terminated at the Supreme Court is deliberate”.   He further noted that  the provision of ACJA,  is seeking to compete with the express provision of the constitution. The Supreme Court, in Oloyede Ishola V. Ajiboye (1994) 7-8 SCNJ 1, puts the law succinctly in these words: “The Constitution is supreme not only when another law is inconsistent with it but also when another law seeks to compete with it in an area already covered by the constitution,” the Administration of the Criminal Justice Act cannot give power to the President of the Court of Appeal to do a thing or act that is inconsistent with and violently in contradiction to the express words of the constitution.

What is tenable is for the National Assembly to, in line with Section 9 of the Constitution, alter it to give the President of the Court of Appeal the power to grant fiat to the judges to continue a trial. Unless this is done, the provision of the ACJA is to that extent null and void because it seeks to do what the Constitution has not permitted. (Section 1(1)(3) 1999 Constitution).

The Supreme Court has once upheld the argument that effective from the date that Honourable Justice Nnaemeka-Agu became a Justice of the Court of Appeal, he ceased to be a judge of the Anambra State High Court and that when therefore on June 17, 1977, he gave judgment, he did so without jurisdiction.

Kalu and his co -accused were on December 5 , 2019 convicted and sentenced to jail terms by Justice Mohammed Idris, who was already a Justice of the Court of Appeal , but returned to Federal High Court in Lagos, to conclude the case.

But in a unanimous judgment of a seven -man panel led by Justice Olabode Rhodes -Vivour , the apex court nullified the entire trial, including the conviction and sentencing, on the ground that Justice Mohammed Idris’ return from the Court of Appeal bench to the Federal High Court to conclude trial was unconstitutional.

It also ordered a fresh trial for Kalu and his co -defendants .

The Friday’s judgment of the Supreme Court was on an appeal filed by one of Kalu’s co -defendants, Jones Udeogu, challenging the fiat given to Justice Idris by the then President of the Court of Appeal on the strength of Section 396 ( 7 ) of ACJA, to return to the Federal High Court to conclude the trial.

Although, Kalu and Udeogu had, in 2018, applied to the then President of the Court of Appeal, Justice Zainab Bulkachuwa (retd), to issue a fiat to Justice Idris to enable him conclude the trial, they however turned around to challenge the constitutionality of the fiat after it was issued to Justice Idris and the trial had made further progress .

Justice Ejembi Eko, who delivered the Supreme Court’s lead judgment on Friday, declared as unconstitutional the provision of Section 396 ( 7 ) of the ACJA which was relied on to authorise Justice Idris to return to the Federal High Court to conclude the trial.

Justice Eko held , “Neither the Administration of Criminal Justice Act nor any other statutes, including the Court of Appeal Act, authorises the President of the Court of Appeal to give fiat to a Justice of the Court of Appeal to return to the Federal High Court and perform the functions of the Federal High Court Judge.

“ The President of the Court of Appeal, not having such authority, acted ultra vires the power of her office when she gave authority to Justice M .B . Idris to conclude the trial .

“ The President of the Court of Appeal does not have the power to assign a case to the Federal High Court judge. Also, the Federal High Court Chief Judge cannot meddle in the internal affair of the Court of Appeal . ”

As stated earlier, the paper finds solace on the views of some distinguished senior Advocates of Nigeria. 

Falana SAN recalled that the Section 396 ( 7 ) of ACJA was introduced to stop rampant instances where criminal cases involving high profile personalities were stalled for a long period as a result of the elevation of the trial judge to a higher court. And lamented that He said, “ the same members of the ruling class have now got the Section of ACJA annulled. Head or tail, the members of the ruling class win, and it is the system that suffers .

The learned silk was not in tandem with the decision of the supreme Court but that is the decision. He rather was looking at the law as it ought to be and the necessity and importance of the ACJA. He argued again that both Sections 22 and 16 of the Supreme Court and Court of Appeal Acts respectively, gives powers to the superior Judges to hear cases of lower courts as if it started in their courts.

On the other divide, Ozehkome SAN was so pleased with the decision and praised the Supreme Court of Nigeria for vindicating his two year struggle that the provisions of the Administration of Criminal Justice System (ACJA) are inferior to the overriding powers of the Constitution.

Ozekhome cited several Supreme Court’s decisions discrediting the provisions of Section 396(7) of ACJA. He described the 12-year jail term conviction of Kalu as “unfair and unjust” adding that “justice has been finally served”. He said he contended that Section 396 (7) of the ACJA which permits a High Court Judge elevated to the Court of Appeal to continue with and conclude a part heard matter was in gross conflict with the provisions of Sections 1(1), 1(3), 238(2), 239, 240, 250(2) and 253 of the 1999 Constitution, and therefore liable to be struck out.

“I cited, inter alia, the earlier Supreme Court case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 S.C 32. I, therefore, urged the court to remit the case file back to the Chief Judge of the Federal High Court, for reassignment to another Judge. But the judge briefly dismissed his compiling  arguments.

It is accordingly submitted that, judex eat lex loquens (the judge is the speaking law), and as such the decision on this matter is binding and represents sound legal principles until being set aside. We need not travel to Wuhan to know that the Coronavirus pandemic is real.

The decision of the supreme Court is a correct but an unfortunate verdict. That is the law as it is. 

It should always be remembered that a senior human rights lawyer like Falana SAN cannot just differ from a decision of the supreme Court without powerful reasons. As Falana noted, the provisions of Section 396(7) of the ACJA was enacted as a reaction to the yearnings and cry of prosecutors and practitioners based on the complain that the promotion of a judge leads to the matter starting afresh again and as such waste the time of the court, rather a law be urgently made to grant judges privileges to complete their cases upon promotion. 

Falana felt disappointed that the ruling class has destroyed  the development of that area of law, the ACJA being a reformative statute in our criminal justice system. 

It is recommended that, the National Assembly can only create such exception by altering the Constitution itself and not by an act of parliament. It is submitted that the National Assembly sort through the ACJA, to do what even the Supreme Court cannot do by judicial precedent (case law).

ABOUT THE AUTHOR

Mbang Confidence (S.A.S) is a final year student of the faculty of law University of Calabar, a paralegal of the Godwinson Churchill and co law firm Calabar, he has passion for exploring the law with his Articles and Agitations.

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