An Exposition of Orji Uzor Kalu’s Case and its Effect on the Nigerian Criminal Justice System
Nguher Jeremiah. LLB (Hons), BL
The Supreme Court of Nigeria found itself in the eye of the storm again on the 24th day of April, 2020 when it delivered judgment in the case of Ude Jones Udeogu v Federal Republic of Nigeria, in which case, the Supreme court set aside the Judgments of both the Federal High Court and the Court of Appeal which convicted and sentenced Senator Orji Uzor Kalu, the former Governor of Abia State, to 12 years imprisonment after finding him guilty on all 39 count charges brought against him.
This was coming a few months after the Supreme Court had come under heavy attacks after delivering judgments in two election Petition cases that emanated from Bayelsa and Imo states.
In setting aside Senator Kalu’s conviction and sentencing, the Supreme Court in a judgment delivered by Ejembi Eko, JSC, held as follows:
“On the 31st October, 2016 at the Federal High Court, Lagos Division, the Appellant, and the 2nd and 3rd Respondents were arraigned before the Federal High Court. The said FIAT/permission, issued without any lawful or constitutional authority and being a nullity, is hereby set aside. All steps, including actions, proceedings and decisions and orders issued, taken and/or conducted pursuant to the said FIAT/Permission dated 2nd July, 2018 as they pertain to and relate to the Appellant herein are hereby set aside.
The judgment of the Court of Appeal No. CA/L/1064C/2018, delivered on 24th April, 2019 particularly in respect of the Appellant as it affected him is hereby set aside. The case No. FHC/ABJ/CR/56/2007, as it pertains or relates to the Appellant as the 2nd Defendant at the trial Court is hereby remitted to the Chief Judge of the Federal High Court for re-assignment to another Judge of the Federal High Court for trial de novo”
This judgment was predicated on the fact that the trial Judge, Justice Mohammed Idris who was elevated to the court of Appeal heard the matter and convicted Orji Kalu at a time when he was already elevated to the Court of Appeal and consequently lacked the jurisdiction to continue sitting as a High Court Judge.
Justice Mohammed Idris continued sitting as a High Court Judge even after his elevation to the Court of Appeal as a result of a FIAT/Permission dated 2nd July, 2018 given to him to continue in that regard by the President of the Court of Appeal. The said FIAT/Permission was given pursuant to the provisions of “Section 396 (7) of the Administration of Criminal Justice Act which says:
‘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 part-heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time; provided that this subsection shall not prevent him from assuming duty as a Justice of the court of appeal’.
The essence of this provision is to ensure expeditious dispensation of criminal cases. Unfortunately, this provision of the ACJA has not driven its authority and legality from the Constitution of the Federal Republic of Nigeria and that is the basis for the Judgment of the Supreme Court which elicited the diverse opinions that have trailed the Judgment of the apex Court. Some of these opinions will be examined below;
A former Commissioner for Justice and Attorney General of Benue State Barrister Alex Ter Adum had this to say;
“Once the Federal High Court (FHC) (and any other Court for that matter) is not constituted in accordance with the provisions of CFRN 1999 (as amended) it is trite learning that such a Court lacks jurisdiction. For the FHC in particular S. 253 requires that for the Court to be properly constituted it must be presided over by at least one Judge of the Court, i. e, FHC. A Judge of the FHC elevated to the Court of Appeal ceases to be a Judge of the FHC and becomes a Justice of the Court of Appeal and a Justice can not seat at the lower bench except the appellate bench. The Supreme Court was therefore right without a doubt in nullifying the judgement delivered by the Justice of the CA at the FHC. This is not withstanding the provisions of the ACJA. Because reliance can not be placed on the ACJA to whittle down or nullify an express provision of the constitution.The former is inferior to the constitution and those saying there is no constitutional provision that bars an appellate Justice to seat concurrently at the Court below need to calmly and dispassionately read Ss.234, 247, 253, 258, 263, 268 of CFRN to appreciate that there is no any ambiguity or peradventure as to who has a right to seat as an arbiter at the SC, CA, FHC, FCT HC, SCA and CCA and the strict hierachical order of the judiciary in Nigeria. The strict compliance with the above provisions animates jurisdiction of the Court, the absence of which renders anything done by the Court a constitutional malfeasance and nullity”.
On his part, the Executive Director of Cadrel Advocacy Centre, Evans Ufeli said:
“The Supreme court acted according to law not minding whoever is involved. You see, the issue of jurisdiction is sacred in law and once a court acts without it, any judgement therefrom no matter how brilliantly delivered, must fail. See the case of ISAAC OBIUWEBI V. CENTRAL BANK OF NIGERIA (2011) 7 NWLR PT 465 (SC)…The above section of the Administration of Criminal Justice Act is unconstitutional and this is the fulcrum of the Supreme Court’s decisions in this case. An act of Parliament cannot be using the expression, ‘notwithstanding the provision of any other law to the contrary,’ when the constitution still remains the highest law in the land and has clear provisions of supremacy, subjecting every contrary law to nullity to the extent of their inconsistencies”.
In my humble view, both Adum and Ufeli in their opinions highlighted above have stated the law as it is devoid of sentiments and emotions. The Supremacy of the Constitution is well established in Section 1(1) of the Constitution of the Federal Republic of Nigeria, 1999 to the effect that its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria, therefore it goes without saying that The ACJA as a statutory authority is not an exception.
Amongst those who have spoken against the Judgment of the Supreme Court, Professor Itse Sagay who spoke under the aegis of the Presidential Advisory Committee on Anti-Corruption stated that the judgment is “a cog in the fight against corruption”. The professor accused the Supreme Court of relying on technicalities rather than justice and public interest.
With the greatest respect, it is my humble opinion that the statement of the PACAC as aired by the learned Professor is morally sound but legally inconsequential. The Court has not discharged nor acquitted the Defendants in the matter. The Court merely directed that the matter be reassigned to a Judge who has the requisite jurisdiction to hear the matter. This has not given the Defendants an opportunity to escape the long arm of the law. It can at best be likened to a case of postponing the burial but not the death.
On his part, Constitutional Lawyer Femi Falana, SAN who queried the decision of the Supreme Court stated that:
“The desire of the Federal Legislators (who passed the ACJA) to halt the frustration of the prosecution of corruption cases by members of the ruling class has been defeated”
He went further to add what in my opinion is the best alternative to explore with a view of preventing such an unfortunate incidence from reoccurring. The learned Silk opined that:
