The number of articles on the 8th May 2020 decision of the Supreme Court quashing the sentence of Orji Uzor Kalu on the ratio that Hon. Justice Mohammed Idris (Court of Appeal) lacked the jurisdiction to conclude the matter has and will continue to flood the internet space for days to come. However, like every other controversial news, it would gradually fizzle out by upcoming events until a similar matter resurfaces. Thus, it is on that background that this writer seeks to seize this prime opportunity to critically dissect the propriety or otherwise of the supreme court decision concerning the purport and practicability of section 396(7) of the Administration of Criminal Justice Act 2015 whilst juxtaposing same with the apex court’s decision in Our Line Ltd. v SCC. Nig. Ltd.
The brief background of Orji Uzor Kalu N7.1 bn Fraud Case
Kalu along with Jones Udeogo (former Director of Finance in Abia State) and Slok Nigeria Limited was arraigned at the Federal High Court Lagos and convicted on December 4, 2019, for N7.1bn fraud committed during Kalu’s tenure as Governor of Abia State.
The matter was presided by Justice Mohammed Idris before his elevation to Justice of the Court of appeal. After he was sworn-in, an application (Fiat) was made to the President of the Court of Appeal according to section 396(7) of ACJA that Hon. Justice Mohammed Idris continued as the presiding Judge at the trial court. It was duly granted so Justice Ibrahim Idris descended to the Federal High Court to conclude the matter.
The defendants were convicted of the offence of stealing from the state treasury. Orji Uzor Kalu was sentenced to twelve (12) years imprisonment, Udeogu was sentenced to ten (10) years imprisonment and Slok Nigeria Limited was ordered to wind up and forfeit its assets to the Nigerian Government. After the judgment, the defendants appealed to the Court of Appeal.
Kalu’s appeal to the court of appeal among other grounds was hinged on the argument that the Federal High Court lacked the jurisdiction to determine the matter given the subsequent elevation of the presiding judge (Justice Mohammed Idris) to Justice of the Court of Appeal.
The Court of Appeal dismissed the appeal reiterating that the presiding judge albeit his elevation to Justice of the court of appeal acted in line with the provision of Section 396(7) of the Administration of Criminal Justice Act.
Upon further appeal to the apex court, the judgment of the Federal High Court delivered by Justice Mohammed Idris was quashed and a trial de novo was ordered on the ratio that a Justice of the Court of appeal cannot operate as a Judge of the Federal High Court.
Is Jurisdiction Important?
The issue of jurisdiction of the court, bedrock, and lifeline of every dispensation of justice in Nigeria has been belaboured in the Nigerian Jurisprudence. To that end, the case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 is instructive each time the issue of jurisdiction is in dispute. The Supreme Court held, inter alia, that:
“where a court is constituted and none of the members are disqualified by qualification and the quorum is present and the subject matter is within the jurisdiction and all the conditions precedent for assumptions of jurisdiction such as the appropriate notices have not been breached then a court is competent”
To put succinctly, in Ajaokuta Steel Co. Ltd v Greenbay Investment & Securities Ltd & Ors (2019) LPELR-SC. 25/2018 the apex court reiterated that where there is no jurisdiction, the court lacks the powers to determine a matter before it and any decision reached in such circumstance no matter how well the same was otherwise conducted would ab initio null and void.
Every court irrespectively of its hierarchy must at all times be conscious of the issue of jurisdiction to effectively determine any matter before it, else, time and resources expended on the matter will be futile.
Is Section 396(7) ACJA constitutional and practicable?
The practice of elevated Justices going back to preside over matters in lower courts after their elevation is not new in Nigeria. Usually, this practice is predicated upon application by either of the parties to court seeking that such Judicial officer is made to continue the matter even after the swearing-in and taking of the judicial oath.
Even though this practice offends the principle of law that jurisdiction is constitutional or statutory and parties cannot by consent or by agreement confer jurisdiction on the court, the attitude of courts towards such applications has been rather admissive. The practice is also spiced by the Provision of Section 3967) ACJA. For ease of understanding it provides:
“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.”
Concisely, the purport of this section of the Administration of Criminal Justice Act is to the effect that a Judge upon his elevation is permitted to seat and conclude a matter that was not concluded before his elevation.
In the mind of the writer, it is assumed that this provision was entrenched pursuance to achieving the purpose of the Administration of Criminal Justice Act which is to ensure that the system of administration of criminal justice in Nigeria promotes efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and the interests of the suspect, the defendant and the victim.
The problem that stems up from the above is determining its effectiveness given the provision of the Constitution. To start with, the Constitution is the supreme law on Nigeria, and any law inconsistent with its provisions is to the extent of its inconsistency null and void. See also EFCC v Agbele (2018) LPELR-CA/A/467/M/2016, Saraki v FRN (2016) LPELR-SC.852/2015, Kawuwa & Anor v. PDP & Ors. (2016) LPELR-CA/YL/EPT/GMB/HR/76/2015(R), Abacha v Fawehinmi (2000) 4 SC (Pt.11) p.1, AG Abia State v AG Federation (2002) 6 NWLR (pt. 763) 204.
The constitution is immutable and cannot be altered except as provided by the constitution. To alter the constitution, there must an Act of the National Assembly to altered its provision inclusive of concurrence by resolution of the houses of assembly of not less than two-third of all the states of the federation. The courts do not have the duty to amend the constitution. See also Duke v Global Excellence Communication Ltd (2007) 5 N.W.L.R (Pt. 1026) 81 at 111 Para H (CA), Alhaji Dokubo-Asari v FRN (2007) Vol. 30 WRN 1 at 38 lines 5-15 (SC).
More so, the appointment of the Judges and Justices of courts in Nigeria is rooted in the constitution. For instance, a Judge of the Federal High Court is appointed by the President on the recommendation of the National Judicial Council, subject to the confirmation of such appointment by the Senate. Such a Judge upon his appointment is empowered to act and preside over matters stipulated in Section 251-252 of the Constitution.
Also, a thorough perusal of the provisions of the Constitution would reveal that there is no express provision for or prohibition of dual or concurrent occupation of judicial positions of different courts. However, as in the instance provided above, it can be inferred that the intendment of the drafters of the constitution is to the effect every high court must be presided by one judge in each proceeding.
Furthermore, the impracticability of the above practice is exposed by the celebrated principles of law and practice which state that a Judge must be addressed properly and that a good judgement must be signed by the Judge or Justices who presided and delivered judgement in the matter. Thus, a dilemma is created in such a circumstance where an elevated judge who was not precluded from continuing and concluding a pending case in a lower court is to sign his judgement.
In such a case, would he be addressed as a Judge of the High Court or a Justice of the Court of Appeal? would he at the end of the matter sign as a judge of a lower court (High Court) or as the justice of the Higher Court (Court of Appeal or Supreme Court)? It would amount to misrepresentation if he is addressed as a judge of the High court or where he signs as a lower court judge after his elevation and it would also be illegal for a Justice of the Court of Appeal or Supreme Court to sign the judgement of a High Court.
It is, therefore, the opinion of the writer that since the elevation of a judicial officer leads to a corresponding advancement in the nomenclature, designation, and powers of such judicial officer especially as it relates to the provisions of the constitution, such judicial officer cannot act or practice in his former capacity.
When Does the Elevation of Judge Become Operational?
Another important question posed by the above discourse is: when does the elevation of a Judge of a high court to a Justice of the court of appeal become operational?
The answer to this question may seem straightforward i.e. such elevation becomes operational upon the swearing-in and taking of the oath of office by the judicial officer. Proponents of this answer take solace in the extract of the Supreme Court decision in Ogbuanyinya & 5 Ors v Obi Okudo & 3 Ors where the Supreme Court upheld the argument that effective from the date that Honourable Justice Nnaemeka-Agu became a Justice of the Court of Appeal, he became functus officio and ceased to be a judge of the Anambra State High Court and that when on June 17, 1977, he gave judgment, he did so without jurisdiction. See also a similar case in Alhaji Ahmed Garba Bichi & Ors. v Alhaji Ibrahim Shekarau & Ors.
The loophole in such an answer is that it would constitute a valid ground to allow an elevated judge who has not been sworn in or has not taken the oath of service to preside over matters prior to the date of such swearing-in ceremony.
Fortunately, that has been put to rest by the supreme court in Our Line Ltd v. SCC Nig. Ltd in that case, the then Chief Judge of Anambra State (Justice Anthony Iguh) who presided over the matter had adjourned till 4th June 1993 but before that date, he was elevated to the Supreme Court. In consideration of the fact the swearing-in was to hold on a later date, he rejected the application made by the respondents ousting the court’s jurisdiction in view of his elevation on the ratio that the elevation was inchoate and not complete. He went further to conclude the case and delivered judgement on 22nd July 1993. Thus, the respondents appealed.
The supreme court in affirming the decision of the court of appeal quashing the decision of the trial court and ordering a trial de novo (fresh trial) held that the trial court presided over by Justice Anthony Iguh lacked jurisdiction irrespective of the fact that there had been no swearing-in rooting the decision on the fact that there was conclusive evidence that such elevation had been publicized through media outlets and celebrated nation-wide.
The above decision is a vivid pointer to the attitude of the apex court towards the practice of Justices going back to preside over matters they did not conclude prior to their elevation. However, it is the opinion of the writer that the Supreme Court through its decision missed an excellent opportunity to resolve subsequent similar disputes.
More so, it is the opinion of the writer irrespective of how juicy the decision of the supreme court as in the case of Orji Uzor Kalu may sound that the supreme court should not always be judicially stiff-necked in similar matters but must at all times consider the peculiarity of each case. In other words, the supreme court must become flexible in reaching judgements in similar matters. The court must consider the resources and time of litigation expended and as well determine the practicability of such elevated judicial officer continuing to act as the presiding Judge of such matter at the lower court.
The writer also opines in view of achieving the true purpose of the Administration of Criminal Justice Act the following:
1. That Judges who have been elevated to Justice of the Court of Appeal be allowed to conclude those matters they presided over prior to their elevation provided that the matter is concluded before their official swearing-in and taking of the judicial oath. The rationale behind this is that it would aid speedy dispensation of justice and as well revitalise the confidence of litigants in the Nigerian judicial system.
2. The court of appeal should endeavour to decline applications from litigants for the continuance of an inconclusive matter by an elevated Judge who has been duly sworn-in and has taken the judicial oath. This would invariably save litigants the cost of continuing the matter, cost of the subsequent appeal, and an inevitable quashing order by the Supreme Court.
In spite of the fact that we must all sequestrate our minds from any tempting moral-political undertone attached to the Orji Uzor Kalu’s judgement, we must understand that it is the duty of the Courts to make operational the provisions of the Constitution and where there seems to be a lacuna, interpret the law in order to attain the intendments of the drafters pending its amendment by the National Assembly.
It, therefore, follows that until the requirement of the Constitution as to the amendment of its provision is followed, the Constitution remains the supreme law of the land, the courts are required to breathe life into its provisions and a mere Act of the National assembly however properly drafted and spiced with good motives or purpose cannot override the provision of Constitution.
Section 396(7) of the Administration of Criminal Justice Act seems not only to have covered a vacuum not envisaged by any clear provision of the Constitution, but it also confers jurisdiction on an elevated Judge in a matter at the lower court. It is to the extent of such conferment of jurisdiction that the Supreme court has held it unconstitutional.
While it is worthy to restate that the purpose behind its enactment is to ensure speedy dispensation of justice, there are quite some multiple reasons why section 396(7) ACJA seems impracticable especially where the elevated Judge has been sworn-in and has taken the judicial oath. But what then is the case when such swearing-in has not occurred?
Though, the supreme court had taken its stand in answering the above question in Our Line Ltd. v SCC Nig. Ltd, however, has a clarion call to differ from such judgement in subsequent similar matters especially when the cost and time of litigation, as well as the nature of the elevation of such Judge, is put into consideration. The supreme court must, therefore, imbibe unalloyed flexibility in resolving such disputes. It must treat each case according to its peculiarity.
As for the Kalu’s judgement which is the crux of this article, the writer concurs with the judgement of the Supreme Court as it would be out of order to do otherwise considering the fact that Hon. Justice Mohammed Idris had been sworn in before the conclusion of the matter. To descend into the arena of Justice at the lower court after taking the judicial oath as Justice of the Court of appeal is thus misleading and unconstitutional.
 FRN v Abubakar (2019) LPELR-SC.393/2016
 Josiah Ayodele Adetayo & 2 Ors v Kunle Ademola & 2 Ors (2010) 3-5 SC 89, Anozie v Emerenini & Anor (2018) LPELR- 43888
 Onna Traditional Rulers Council & Ors v Umoren & Ors (2018) LPELR- 44301(CA)
 Section 1 ACJA 2015
 Section 1 & 1(3) of the Constitution
 Section 9 of the Constitution
 The Governor of Kwara State & Anor v Ojibara & Ors. (2006) LPLER-SC.166/2004
 Section 250 of the Constitution
 Section 253 of the Constitution
 (1979) 9 SC. 32
 (2009) LPELR-CA/K/GOV/18/2008
 (2009) 17 NWLR (pt. 1170) 382 (SC)
About the author.
Ezza Chigozie Jude AICMC is a student of the Nigeria Law School, Lagos Campus, an avid legal author and researcher. He can be reached via 08117549429
Email: [email protected]
Linkedin: Chigozie Jude, Ezza AICMC