‘Supreme Court wavered by refusing to extend retrial order to Orji Uzor Kalu’

Former Benue State attorney general and commissioner for justice, Chief Mamman Mike Osuman (SAN) in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEKWERE argues that the Supreme Court ought to have extended the order for the retrial of Ude Jones Udeogu to his co-convict at the federal high court, Senator Orji Uzor Kalu, having found that the trial judge lacked jurisdiction to so act.

What is your reaction to the Supreme Court judgment in SC/622c/2019 delivered on May 8, 2020 between Ude Jones Udeogu and Federal republic of Nigeria, Orji Uzor Kalu and Slok Nigeria limited?
There is an unhealthy proliferation of views particularly by the social media and rumours concerning the judgment of the Supreme Court in Re: SC/622C/2019. The leading judgment (which represents the judgment of the Court) is repeated hereunder: – I agree with the essential part of the Supreme Court Judgment Re -SC 622C/2019 delivered on Friday May 8, 2020 regarding the fate of Ude Jones Udeogu (appellant) but who before the trial Court was the 2nd defendant while Orji Uzor Kalu and Slok Nigeria Limited the 3rd defendant respectively. I have, in my opening paragraph, employed the word “essential” in qualifying my agreement with the judgment.

Can you give a legal analysis of that decision?
Section 396(7) of the Administration of Criminal Justice Act, 2015, provides 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 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.” This section was declared unconstitutional by the Supreme Court in the case under consideration when it held that the “… special dispensation granted to the Judge of the High Court elevated to the Court of Appeal to continue as the High Court Judge only for the purpose of concluding part-heard criminal matter pending before him at the time of his elevation cannot be accommodated under or by section 252 of the Constitution…. Ab initio, section 396(7) of the ACJA, 2015 was set out to frontally contradict and challenge the letters, substance and spirit of Section 290 of the 1999 Constitution. To that extent, Section 396(7) of the ACJA, 2015 is inconsistent with the Constitution, particularly Section 290(1) thereof.

Therefore, by operation of Section 1(3) of the Constitution, section 396(7) of the ACJA, 2015, to the extent of its inconsistency with section 290(1) of the Constitution, is void.” The author of the leading judgment, is, in my view, exquisitely knowledgeable while his judgments have always been helpful and elucidating. Notwithstanding, I will prefer to treat the delivered judgment as that of the entire Court – which is what it is. See: 1. Osun State Independent Electoral Commission  & Anor Vs. Ac & others (2010) LPELR 2818 (SC) 2. Abacha & Ors vs. Fawehinmi (2000) LPELR 14 (SC) Particularly pages 115 -117 paragraphs C-A and 3. Umanah vs. Attah & ORS (2006) LPELR 3356 (SC) Pages 25-26 paragraph G-A. However, I respectfully submit that the Supreme Court, not only wavered, but shied away from being the formidable court it should be. Rather than boldly extend the order or the gratis of a retrial de novo to the 1st and 3rd defendants i.e. (Orji Uzor Kalu and Slok Nigeria Limited) the Supreme Court embraced the technicality provided by both the Supreme Court Rules and the philosophy behind appeals to say that its order for a retrial de novo “pertains and relates to the appellant” alone. The path of justice I humbly submit, would require that the other two defendants who were subjected to the same erroneous, illegal and unconstitutional trial conducted by his lordship M.D. Idris JCA be made to undergo a retrial. Having declared the subsection that is Section 397(6) of the Administration of Criminal Justice Act 2015 (As amended) void, the Supreme Court went ahead to say that all steps, including actions, proceedings, decisions and orders issued/taken or issued pursuant to the fiat which enabled Justice Idris to continue to sit and hear the part-heard criminal matter after his elevation to the Court of Appeal as it pertains to the appellant be set aside and that the learned Chief Judge of the Federal High Court should re-assign the matter to another Federal High Court Judge for trial de novo. Our revered Apex Court’s judgment relating to the obvious lack of jurisdiction by his lordship (M.B. Idris, J/M.B. Idris, J.C.A.) which exponentially presents one jurist wearing two caps, is in my humble view, indisputably, in law and in fact, correct and impressive.

How does the notion of public policy arise in the decision?
The word public policy has been held in the case of Total Nigeria PLC v Ajayi (2004) 3 NWLR Part 860 Page 270 at 293-294 to mean “that policy of the law of not sanctioning an act which is against the public interest in the sense that it is injurious to the public welfare or public good”. In Okonkwo Vs. Okagbue (1994) 9 NWLR Pt. 368 page 301, the Supreme Court further emphasized that Public Policy must be the fulcrum around which decisions must be made, since to do otherwise would have the “tendency” of unleashing a result that is “injurious to the public or against public good”. Against the imperative of an order, a decision, ruling or judgment that is not only embracing, but which would augur for “public good”, our revered apex Court should have ordered that, in so far as both Orji Uzor Kalu & Slok Nig. Ltd were products of an illegal and overtly unconstitutional judgment, all three defendants at the trial should be re-subjected to another trial that will abide the laws of our land. See the case of UAC vs. MacFoy (1962) 152 or (1961) 3 All ER 1169 and Lloyds Bank Ltd vs. ROSSETT (1991) 1 AC 107 or (1989) Ch. 350.

What do you have to say about the economic aspects relating to the principle of public good?
The Supreme Court, historically, has been known to, with respect, taken the citizenry unawares as evidenced by some controversial decisions. See: Awolowo Vs. Shagari & 2 Ors (1979) 6-9 SC 37 at page 71 per Fatayi Williams CJN and AMAECHI vs. INEC & 2 Ors (2007) 18 NWLR (part 1065) 2; (2007) 7-10 SC 172. In the former, it upheld the theory / legal submission of the late scion, Chief Richard Akinjinde on the mathematical equation of 122/3, while in the latter, it held that honourable Amaechi who was neither on the ballot card, recognised by his political party nor contested for the election, was the person who won the election under PDP and therefore eligible and qualified to be sworn into office as the governor of Rivers State. It is desirable that any decision of the Supreme Court should be governed by public policy and ipso facto, serve the public good. In an electoral matter, namely, Barrister Oriker Jev & Ors VS. Iyortom & Ors (2015) NWLR (Pt. 1483) Page 484, the Supreme Court had ordered INEC to conduct a run-off election. On discovering that it made an error that was based on a wrong interpretation of Section 133 (2) in conjunction with Section 141 of the Electoral Act 2010 (As amended) it, following a post judgment application by one of the parties, set aside its earlier order and consequently ordered INEC to issue the applicant a certificate of return.  Since the undertone of the judgment (supra) insinuates that Orji Uzor Kalu is illegally serving a sentence, which is punitive and humiliating, why will the illegal torture and unlawful imprisonment not be discontinued? Why should he not be picked out of the pit of his current un-wholesome residence and allowed to undergo a constitutionally based trial? Ude Jones Udeogu – the appellant before the Supreme Court, would on the judicial order of the Court undergo another trial, which evaluation in costs to the government cannot be fundamentally different if both Orji Uzor Kalu and Slok Nigeria Limited are co-joined as defendants. Section 235 of the Constitution speaks loudly of the Supreme Court being the final Court.

In Adegoke Motors Ltd v. Adesanya (1989) 5 S.C.113 at129 Lines 27-38 per Oputa, JSC (of blessed memory) stated as follows: “We are not final because we are in fallible, rather we are infallible because we are final. Justices of this court are human-beings capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth. It is also true that this court can do inestimable good through its wise decisions. Similarly the court can do incalculable harm through its mistakes. When therefore it appears to learned counsel that any decision of this court has been given per incuriam, such counsel should have the boldness and courage to ask that such a decision be overruled. This court has the power to overrule itself (and has done so in the past) for it gladly accepts that it is far better to admit an error than to persevere in error.” The 7th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 imbues judges with judicial courage. Justices of the Supreme Court are more than aware of this. Thus, it is expected that Justices of the apex Court should not leave any stone unturned in their dispensation of justice, which, invariably, would be in public interest. Therefore, I recommend that the Supreme Court should revisit its judgment /decision of Friday 8th May 2020 as it did in Barrister Orike Jev & Iyortom (supra) restructure and correct same in line with Order 8 Rule 16 of the Supreme Court Rules and the case of Dingyagi v. INEC (2011) 10 NWLR (part 1255) page 347 at 392, paras B-D, where the Supreme Court, per Adekeye, JSC, stated thus: “Regardless of the foregoing, this court has re-stated in many cases that it possesses the inherent powers to set aside its judgment in appropriate cases. The rationale behind the inherent power was amplified in the case of Adegoke Motors Ltd v. Adesanya (1989) 5 S.C. 113; (1989) 3 NWLR (part 109) pg. 250 at pg 274 that: “We are not final because we are in fallible, rather we are infallible because we are final. Justices of this court are human-beings capable of erring. It will certainly be short-sighted arrogance not to accept this obvious truth”.

The Supreme Court on account of forestalling the flurry of review applications that would have come before it rejected all such applications as they relate to politicians recently. On what ground should it now review the case of a party who was not appellant before her?
I guess that you are referring to the cases of Imo, Bayelsa and Zamfara states. In my honest view, those cases/appeals did not meet the legal criteria for a review. The appellants were merely taking chances. I was, therefore not surprised at the reaction of our noble lords of the Supreme Court who not only dismissed the appeals, but slammed penalties on their counsel. While not comfortable with the apex courts’ umbrage on the appellant’s counsel, punitive costs should have been clamped on the erring parties and not their counsel. It must be recalled that the fiat issued by the president of the Court of Appeal, to Justice M.B. Idris JCA was at the instance of Orji Uzor Kalu’s counsel at the trial Court. I do not agree that there has been a “flurry of review applications” to the Supreme Court. The legal right to re-approach the Supreme Court for review exists. Recourse to records, show very few of such applications. My consolation is that inappropriate ridiculous ones as were seen recently, would not rear their ugly heads again. Having delivered the judgment, the Supreme Court became functus officio. However, under the auspices of the law pertaining to judicial review, the Supreme Court can and should review its decision in the appeal Re: SC 622C/2019 delivered on Friday May 8, 2020. See: Alhaji Shuaibu Abdulkarim Vs. INCAR (Nigeria) Limited (1992) LPELR – 26 (SC) wherein Nnaemeka – Agu JSC at page 24 paras A-D said: “…judicial review entails three different processes, namely, the Courts, particularly the Supreme Court, ensuring that every arm of government plays its role in the true spirit of the principle of separation of powers as provided for in the Constitution; that every public functionary performs his functions according to law, including the Constitution, and for the Supreme Court – that it reviews Court decisions including its own when the need arises in order to ensure that the country does not suffer under the regime of obsolete or wrong decision. It is the last type of review that is relevant in this case.” The important aspect of our jurisprudence is the opportunity given to an aggrieved litigant to appeal against a decision of a Court that he disagrees with. One of the options available to Orji Uzor Kalu is to appeal against his conviction using the issue of jurisdiction as a ground of appeal. The ground as it relates to jurisdiction should be that the trial Judge that convicted him lacked jurisdiction when he adjudicated over and convicted him after he was elevated from the Federal High Court to the Court of Appeal. However, if he had already filed an appeal against his conviction all he needs to do is to amend his Notice of Appeal to bring in the issue of jurisdiction or the lack of competence of the trial Judge to sit and try the matter after his elevation to the Court of Appeal. The issue of jurisdiction encompasses legal capacity, power or authority of a Court. In the case of Obiuweubi vs. CBN (2011) 7 NWLR (Pt. 1247) 465 SC, the Supreme Court per Rhodes Vivour JSC particularly at pages 494 paras. C-D held thus: “Jurisdiction is a threshold matter. It is very fundamental as it goes to the competence of the Court to hear and determine a suit. Where a Court does not have jurisdiction to hear a matter, the entire proceedings, no matter how well conducted and decided, would amount to a nullity. It is thus mandatory that courts decide the issue of jurisdiction before proceeding to consider any other matter.” The Court further held that: “Jurisdiction can be raised at any stage of the proceedings in the High Court, on appeal and even in the Supreme Court for the first time.” See also: Usman Dan Fodio University Vs. Kraus Thompson Organization Ltd (2001) 15 NWLR (Pt. 736) P. 305 Bronik Motors Ltd & ANOR vs. Wema Bank Ltd (1993) 1 SCNLR P. 296.

In the eventuality that the apex court refuses to review the decision, what legal options or remedy are available for Orji Kalu?
The answer to your question is simple: My friend Orji Uzor Kalu must embrace his fate and attune himself to the sentence impacted on him by M.B. Idris JCA whose judgment, in the annals of our nation’s jurisprudence, will continue to attract the attention of scholars and lawyers for a long time. It was Udeogu (not Orji Uzor Kalu) that appealed to the Court of Appeal. It was also Udeogu’s Appeal that was upheld by the Supreme Court. To that extent, Orji Uzor Kalu would first access the Court of Appeal with his appeal. I am confident that based on the judgment of the Supreme Court, the Court of Appeal, on the basis of stare decisis, would nullify the Justice M.B Idris judgment and order for a retrial de novo.

You seem to agree with the supreme court’s decision that section 396(7) of the ACJA, 2015 is inconsistent with section 1(3) of the constitution, meaning that the trial judge had no jurisdiction to return to the high court to handle the matter. Don’t you think that the purpose of enacting the ACJA, which is to fast-track trial processes have been defeated with this judgment?
It is understandable that the purpose of the enactment of the Administration of Criminal Justice Act, 2015 (as amended) particularly, Section 396(7), thereof was to fast-track criminal trials in order to ensure expeditious dispensation of justice. However, in achieving that end, the constitution, which is the ground norm of the land should not be “frontally attacked” (as observed by the Supreme Court in the case under discussion) by the lawmakers in a manner that portrays a cavalier attitude towards law and order. The constitution is supreme and it is against that fact that the validity of all other laws are judged. Thus, no law made by the National Assembly, no matter how well-intentioned, must contradict the constitution, and where such happens, the constitution must prevail, and that other law shall to the extent of its inconsistency, be declared null and void. See Section 1(3) of the 1999 constitution of the Federal Republic of Nigeria (as amended). This is precisely what the Supreme Court has done in this case. Section 249 of the Constitution created the Federal High Court and assigned the functions of a High Court to it. Similarly, Section 237 of the constitution created the Court of Appeal and assigned the function of an appellate court to it (except in the hearing of presidential election petition matters). The two courts are separate and distinct. The duties of each are performed exclusively by members of that court as provided by the constitution. By section 290 of the constitution, a person appointed to any judicial office cannot begin to perform the functions of that office until he has taken judicial oath of that office. Once a High Court Judge is elevated to the Court of Appeal and subsequently sworn in, he ceases to have the constitutional powers to perform the functions of a High Court or sit as a High Court Judge. Also, upon taking his oath of office as Justice of the Court of Appeal, he becomes a member of the Court of Appeal who can only perform the judicial function of the Court of Appeal by virtue of the powers conferred on the Court of Appeal by the Constitution. By the provisions of sections 396(7) of the ACJA, 2015, the judicial function of a High Court Judge were conferred on a Justice of the Court of Appeal, thereby allowing him to function in a dual capacity (i.e. as a justice of the Court of Appeal and as a Judge of the High Court), contrary to the spirit and letters of the Constitution. That was the basis upon which the Supreme Court judgment nullified the subsection. I subscribe to the reasoning and decision that section 396(7) of ACJA, 2015, cannot co-exist (side by side) with the constitution without doing violence to the latter. The Supreme Court judgment did not leave the National Assembly high and low. It gratuitously provided them a window when in solemn pampering words it advised, namely, that it could under the auspices provided in Section 252(2) of the constitution; amend it to accommodate the provision of section 396(7) of the Administration of Criminal Justice Act 2015. Short of that, the said section, in so far as it remains in conflict with section 1(3) of the constitution, was dead on arrival.