It is no longer a breaking news that the Supreme Court of Nigeria on Friday, the 8th of May, 2020, voided the conviction of a former Abia State Governor, Senator Orji Uzor-Kalu, who had been jailed for corruption by a Federal High Court sitting in Lagos presided over by Justice Muhammed Idris. Justice Mohammed Idris had on December 5, 2019, sentenced the former Governor to 12 years in prison for allegedly stealing public funds while in office.
Dissatisfied with the judgment of the Federal High Court, Mr Kalu challenged his conviction and sentencing up to the Supreme Court of Nigeria. Delivering judgment on Friday, a seven-member panel of the apex Court in a unanimous decision set aside the judgment of Justice Mohammed Idris which convicted and sentenced Mr. Kalu to 12 years imprisonment. The apex court’s judgment delivered by Justice Ejembi Eko, declared the conviction of Mr. Kalu as null and void on the ground that Justice Muhammed Idris was already a Justice of the Court of Appeal as at the time he delivered the judgment sentencing Mr. Kalu and his co-defendants. Justice Eko held that a Justice of the Court of Appeal cannot operate as a Judge of the Federal High Court, and further ordered the Chief Judge of the Federal High Court to reassign the case to another Judge for trial.
As expected, the verdict of the apex Court has elicited several arguments, criticisms and condemnations from lawyers and the general public. By this decision, many have come to the conclusion that the judiciary serves as an obstacle to the “fight against corruption”. Many lawyers have also classified the verdict of the apex court as technical justice which shouldn’t have found its way in the present dispensation of our criminal justice system.
The condemnation of the apex Court’s verdict is further strengthened by the fact that the procedure adopted by Justice Muhammed Idris (in sitting to deliver judgment in Kalu’s trial after he was already elevated to the Court of Appeal) is statutorily backed up under section 396(7) of the Administration of Criminal Justice Act, 2015, which is an Act of the National Assembly. The said section 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.”
Relying on the above provision, many analysts and lawyers are of the view that the apex Court ought not to have voided Kalu’s trial. Giving more strenght to their contention is the fact that based on a document (a letter) that surfaced on the social media after the apex Court’s judgment, it was Kalu’s Lawyer that even wrote to the President of the Court of Appeal to allow Justice Muhammed Idris to conclude Kalu’s case which was already partly-heard before his elevation to the Court of Appeal, in line with section 396(7) of the Administration of Criminal Justice Act, 2015. Their contention here is that by virtue of the said letter written by Kalu’s lawyer requesting that Justice Muhammed Idris be allowed to conclude Kalu’s case, Kalu is deemed to have consented to the procedure and as such there is no basis to void the entire proceedings of Justice Muhammed Idris based on that singular point.
Well, while the above highlighted points may be good arguments in attacking the Supreme Court’s verdict, the truth is that they do not find solace in what our grundnorm says. It is trite that the Constitution of the Federal Republic of Nigeria, 1999 (As Amended) is the grundnorm and every other law must trace its validity to it, otherwise, it will be null and void. See Abacha v. Fawehinmi (2000) 6 NWLR (Pt.660) 228.
The framers of the Nigerian Constitution thought it wise to make the provisions of our Constitution supreme and binding over and above all persons and authorities throughout the Federal Republic of Nigeria. Thus, by section 1(3) of the Constitution, any other law that conflicts with the provisions of the Constitution shall, to the extent of its inconsistency, be null and void. See A. G. Abia State v. A. G. Federation (2006) 16 NWLR (Part 265) p. 38.
It is elementary to remind us in this article that the primary duty of the Court (the Judiciary) is to interpret laws. In other words, Judges are to interpret the laws of the land as enacted by the Legislature. See section 6 of the Constitution. In its function and duty of interpreting laws, Judges are under oath to uphold the provisions of the Constitution always and to guard it jealously. Hence, once any law appears as an affront to the Constitution, such law must be sacrificed on the altar of constitutional supremacy by declaring same null and void. The supremacy of the constitution is invoked 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. See Oloyede Ishola v. Ajiboye (1994) 7-8 SCNJ 1.
On the other hand, the duty and function of making laws is that of the Legislature. However, in the course of discharging this duty or function, the Legislature or Lawmakers are likely to enact laws that may be inconsistent with constitutional provisions. In such instance, the court must rise up to the challenge by nullifying such enactments.
Now, the crucial question here is: Is section 396 (7) of the Administration of Criminal Justice Act, 2015 actually inconsistent with the provisions of the Nigerian Constitution so as to justify the Supreme Court’s verdict which nullified Kalu’s trial? Again, does the fact that it was Kalu’s Counsel that requested in writing for the conclusion of the trial by Justice Muhammed Idris who was already a Justice of the Court of Appeal, make any difference? We shall answer all these questions in a moment.
For clarity, we shall once more, reproduce the provision of section 396(7) of the said Administration of Criminal Justice Act, 2015, to wit:
“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 provision expressly permits a Judge of a High Court who has been elevated to the Court of Appeal to continue to sit as an High Court Judge for the purpose of concluding any partly-heard criminal matter before his elevation. The provision further states that this arrangement shall not prevent such Judge from assuming duty as a Justice of the Court of Appeal. While the purpose of this provision is to fastrack criminal trials and to ensure that elevation of Judges handling partly-heard criminal matters do not frustrate or delay criminal cases in Nigeria, the implication of the provision is that it tends to confer two status (i.e. a Judge of the High Court on one hand and a Justice of the Court of Appeal on the other hand) on one “Judge” of two different Courts at the same time!
Now, the question is: Can a single Judge assume two status as an High Court Judge and a Justice of the Court of Appeal at the same time under the Constitution of the Federal Republic of Nigeria? I do not hesitate to answer this question in the negative, as it is not the intendment of the Nigerian Constitution. Thus, it is very obvious that the intendment of the Administration of Criminal Justice Act, 2015 which is aimed at speedy dispensation of criminal justice, does not find support in the Constitution as far as the issue of an elevated Judge assuming dual status of an High Court Judge and a Justice of the Court of Appeal at the same time is concerned. For section 396(7) of the Administration of Criminal Justice Act, 2015 to be valid, it must find life in the Constitution otherwise it is eternally dead. Having not found its root in the grundnorm, the apex Court did the right thing by declaring the section void. It is now a legal cliché that you cannot put something on nothing and expect it to stand; per Lord Denning of blessed memory in UAC v. McFoy (1962) AC 152.
Thus, a Judge of an High Court is under oath to dispense justice as a Judge of that Court and no other, and likewise, a Justice of the Court of Appeal is under oath to operate as a Justice of the Court of Appeal and no other. In this regard, I find very correct, convincing, and compelling the arguments of Adegboyega Awomolo (SAN) in his article entitled, “Is Section 396(7) of ACJA Constitutional?”, published by the Nigerialawyers.com on 8th May, 2020, where the learned Silk inter alia, argued thus:
“The intendment of the provisions of the constitution is that judicial officers appointed by the President and sworn in by the Chief Justice of Nigeria can only perform the judicial powers or jurisdiction constitutionally assigned to each of the courts under the Constitution of the Federal Republic of Nigeria, 1999 with which the judicial officer took their judicial oath. For the Federal High Court, specifically, and independent of other sections, the constitution, in sections 249-254, provide for the appointment of the judicial officers of that court whose duty includes the right to exercise the judicial powers under the provision of sections 251 and 252 of the constitution. The powers conferred upon judicial officers, under the provision of each category of court is immutable. It cannot be altered by any person or authority referred to under Section 1 of the constitution. The National Assembly’s legislative powers to alter the provisions of the constitution can only be by an Act of the National Assembly to amend or alter the provisions of the constitution with the concurrence of two-thirds of the states of the federation – Section 9 of the constitution…
Section 253 of the constitution provides that: “The Federal High Court shall be dully constituted if it consists of at least one judge of that court.” The intendments of this provision, in our humble view, is that the jurisdiction conferred on the Federal High Court by virtue of Section 251 (1), (2) and (3) and 252 of the constitution shall be by, at least, one judge of that court – the Federal High Court only. Unless this provision is amended, no judge of the state high court, National Industrial Court or any judge of any other court of coordinate jurisdiction can constitutionally exercise the powers under Section 253, not being a judge of that court. The constitution specifically identified the judge as “one of that court.” With respect, no Act of the National Assembly alone can amend, expand, alter or substitute “judge of that court” with any judge or Justice of the other courts established under Section 6 of the constitution…
It is important to note that the constitution referred to judicial officers of the Federal High Court as judges of that court, whereas it referred to judicial officers of the Court of Appeal as Justices of the Court of Appeal.
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. The distinct qualification and the procedure for appointment and swearing-in of such judicial official is to establish the importance of each level, having regard to the responsibility that the constitution ascribed to each level. A judicial officer, elevated from the rank of the high court to the Court of Appeal is not and cannot be equated with other judicial officers not elevated or considered and rejected for elevation. The makers of the constitution are presumed to have memory and cannot be pressured to have made the mistake in the separation of the mode of
addresses, judicial duties and responsibilities of each level of the court. It is clearly a contradiction of the judicial oath for the Honourable Justices of the Court of Appeal to descend to the lower court to hear uncompleted cases. It is invalid, null and void…”
Going further, the Learned Silk queried: “On a lighter note, how would the Justice sign the judgment? If he signs as “a judge of the Federal High Court,” he lies; and if he signs as a Justice of the Court of Appeal, it is unlawful. How then does he sign?”.
It must be emphasized here that the issue that the apex Court was called upon to decide in Kalu’s case has to do with jurisdiction. In other words, the question as to whether Justice Muhammed Idris was right in law to have concluded Kalu’s trial after his elevation to the Court of Appeal, is a jurisdictional question which goes to the root of the whole exercise. And this takes us back to an earlier question which is: Does the fact that it was Kalu’s Counsel that requested in writing for the conclusion of the trial by Justice Muhammed Idris who was already a Justice of the Court of Appeal, make any difference? My simple answer is No! The law is settled that parties cannot by consent or waiver confer jurisdiction on a court which by any legal impediment, lacks jurisdiction to determine a case. See Lala & Ors. V. Akala & Ors. (2018) LPELR-46470 (CA) at page 7. In Standard Cleaning Services Company v. Council of Obafemi Awolowo University, Ile-Ife (2019) LPELR-47050 (CA) at page 7, the Court of Appeal per Danjuma, J.C.A., held that:
“Neither the Court nor any of the parties can confer jurisdiction on the Court by conduct, consent or inference and cannot be enlarged by estoppel or waiver. It is the forerunner of the judicial process, cannot by acquiescence, collusion, compromise or waiver confer jurisdiction on a Court that lacks it. Parties do not have the legal right to donate jurisdiction on a Court that lacks it…”
Thus, constitutionally, the elevation of Justice Muhammed Idris to the Court of Appeal constituted a legal or constitutional impediment to the jurisdiction of the Federal High Court he presided over to continue to sit over Kalu’s trial until judgment was delivered. It is unfortunate that EFCC’s lawyers played into the hands of Kalu’s Counsel and fell into his “trap” by consenting to his (Kalu’s Counsel) request for Justice Muhammed Idris to be released by the President of the Court of Appeal to have concluded Kalu’s trial. Kalu’s Counsel smartly initiated the whole arrangement and having secured the consent of the Prosecution Counsel, Justice Muhammed Idris concluded the case as requested. The judgment went against his client who was convicted and sentenced to 12 years imprisonment but he found solace on the same “arrangement” he initiated as a valid ground of appeal that eventually helped his client (Kalu) to regain his freedom! Advocacy cannot be divorced from the nuances of outsmarting one another in the course of judicial proceedings. It is good to know the law but it is more gainful to be smart in one’s knowledge of the law. A good lawyer may know all the laws but a smart lawyer will always carry the day!
Unfortunately, when cases are won or lost in courts, people attach sentiments to same. Why we understand the usual fears or reservations, we must know that law is not built on sentiments. Law is law and sentiments have no place in judicial deliberation. One misconception must be cleared as far as Kalu’s case is concerned, and that is the fact that the apex Court did not acquit him of the corruption charges for which he was earlier convicted. The Court rather ordered the Chief Judge of the Federal High Court to assign the case to another Judge of that Court for a fresh trial. The apex Court in a way, is saying though Orji Uzor Kalu may be guilty as earlier found by Justice Muhammed Idris, nevertheless, let the saying that whatever is worth doing is worth doing well be manifested in this case! To this extent, the apex Court is not to blame. If there is any body or institution to blame at all, then it is the National Assembly who enacted section 396(7) of the Administration of Criminal Justice Act, 2015, without amending the Constitution to back it up constitutionally. Thus, instead of condemning the Supreme Court’ verdict, energy should be channeled on mounting pressures on the current National Assembly to amend the Nigerian Constitution in such a way that section 396(7) of the Administration of Criminal Justice Act, 2015, can find life and validity in its provisions. Once such amendment is done, the apex Court’s decision in Orji Uzor Kalu’s trial will no longer stand as it would be overtaken by the said constitutional amendment. See Adigun v. Gov. of Osun State (1995) 3 SCNJ 1 at 20; A. G. Abia State v. A. G. Federation (2006) 16 NWLR (Pt. 1005) 265 at 374-375, per Niki Tobi, JSC.
Thus, until such amendment is done, it is humbly recommended that High Court Judges handling partly-heard criminal matters (especially corruption cases that have gone far), should not be fully appointed and sworn in as Justice of the Court of Appeal after their nomination/recommendation unless and until the said criminal matters they are handling are concluded.
Conclusion
It therefore, goes without saying that the nullification of Kalu’s trial by the trial court was not based on technicalities as argued by many senior members of the Bar. A constitutional issue especially one that touches on jurisdiction cannot be regarded as a matter of technicality. We cannot under the guise of discouraging technicalities or technical justice, feign blindness to the extent of allowing laws that are inconsistent with the Constitution to hold sway in the administration of our justice system. Hence, while trial de novo as ordered by the apex Court in Kalu’s case might cause grave inconveniences to all stakeholders that are involved in the matter, I do not, in the final analysis, think that the Court was wrong to have declared the law as they found it. See Johnson v. Lawanson 1971 1 ALL NLR 56.
– S.O. Akobe, Esq. writes from Abuja, and can be reached via akobe4onu@gmail.com)
