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Kalu: Judgment impacts section 396 of administration of criminal justice act, say lawyers


Several Cases To Be Affected By This, Notes Adegboruwa

More reactions, especially from lawyers, have trailed the Supreme Court judgment quashing the lower conviction of former governor of Abia State and a serving senator, Chief Orji Uzor Kalu, yesterday. Mr. Ebun Olu Adegboruwa (SAN) said when very serious constitutional issues are raised in a matter, it might be good for the trial court to exercise some reasonable caution to await the outcome of the appeal, so long as the appellant is not by that means seeking to prolong the case.

“It is good to fast-track the hearing of cases involving serious constitutional matters so that applications for a stay in criminal matters will no longer be a headache for the prosecution. “There has to be a reasonable balance between the right to a fair hearing of a defendant, in respect of very serious appeals, and the power of the prosecution to have the cause heard expeditiously.


“To abolish stay of proceedings via legislation and taking away the discretion of the court and the right to a fair hearing of a defendant will keep working injustice for very serious cases. There are several cases to be affected by this judgment. You can imagine the time, money and energy spent in this case. It is the same government that is prohibiting stay of proceedings that will have to conduct the trial de novo, giving lawyers on both sides so much job to do.

“The accelerated hearing of the appeal is commendable, given that many cases are to be affected thereby. When lawyers agree to hear a case expeditiously, justice will be granted by the court in the manner that society desires.” Chief Goddy Uwazuruike (SAN) said the judgment was in order because one of the oldest conditions for a valid trial is that there is nothing that disqualifies the presiding Judge from sitting over the case. It is trite law that only a current Judge can preside over a case. A retired, dismissed or a ‘promoted’ Judge cannot sit on a matter.

“This position of law is not new. Justice Nnaemeka Agu, over 30 years ago, read the judgment in the morning following his elevation to the Court of Appeal, but the judgment was set aside. The 2014 national conference had recommended what to do in this kind of situation, but the government is not interested in its report. Now, the years that the trial lasted are wasted. This is one of the areas the ordinary man will ponder about.

“The Supreme Court is correct that a Judge who has been elevated cannot preside over a case he was handling before his elevation.” Rights activist and public affairs analyst, Joe Nwokedi, said the ruling represents judgment and not justice, adding: “We have constantly clamoured for justice, instead of judgments, based on technicalities in Nigeria. “Sadly, we can’t remove the fact that the procedures of the court must be followed in arriving at a conclusion of any case, especially where the issue of jurisdiction is involved.


“When a matter is not decided on its merit, but on technical grounds predicated on the rules or procedures of the court, it doesn’t fulfil that fundamental purpose of securing justice. It's so sad and I urge the Bar and Bench to be cautious of our acts in any matter to take care of every issue that might lead to the nullification of a case on the grounds of technicalities than merit.

“This is the second in a row in recent time that justice has suffered serious injury as a result of the actions and inactions of a Judge. One is the Osun Election Tribunal and the second is this one. I don’t think it is good for our judicial system, whereby litigants or prosecutors will lose a case as a result of the action or inaction of a Judge.

“We shall, therefore, do well to avoid such occurrence in future.” On his part, Lagos-based lawyer and human rights activist, Inibehe Effiong, said the apex court was right in setting aside Kalu’s conviction, adding: “I have always maintained the view that it is unconstitutional for a Judge of the Federal High Court, who has been elevated to the Court of Appeal, to continue to sit over cases at the Federal High Court.

“As rightly held by the apex court, Section 396 of the Administration of Criminal Justice Act (ACJA) that empowered the President of the Court of Appeal to give fiat to elevated federal Judges to continue to hear and determine part-heard cases is in conflict with the constitution.


“The hierarchy of our courts is a constitutional creation. The moment Justice Mohammed Idris subscribed to his oath of office as a Justice of the Court of Appeal, his former office and oath as a Judge of the Federal High Court became extinct in law. A judicial officer cannot function in two different courts. This has been my position all along. 

“The Supreme Court of Nigeria has only affirmed Section 1 (1) and (3) of the 1999 Constitution, which renders any other law that is inconsistent with the provisions of the constitution void. This judgment is about the supremacy of the constitution. Since Justice Idris did not have jurisdiction to continue to sit over the case, the conviction of Kalu and his co-defendants was null and void. “Please note that the Supreme Court did not pronounce on the guilt or innocence of Kalu and others; it rightly ordered a fresh trial. If Kalu is guilty as charged, the judgment of the Supreme Court may just be a temporary reprieve; it might be a postponement of the evil day for Kalu and his company.

“However, the judgment could impact on the ability of the prosecution to prove its case in a fresh trial, as this case has been on for too long. Kalu, at a point, fought the prosecution up to the Supreme Court on technical points and the trial was stalled. By the time he lost his interlocutory appeal, a lot had changed, including the elevation of the trial Judge to the Court of Appeal. “The prosecution (EFCC) will have to begin afresh search for their witnesses. Some of them may have died or may have lost interest or may not remember what transpired with exactitude.

“The intention of the National Assembly in enacting the now expunged Section 396 of the ACJA was noble, but the constitution is supreme.” Another lawyer based in Lagos, Chris Okeke, noted: “The Supreme Court is ones again trying to assert herself, as the decision has support in case law and looks to me to be fair, and fairness and justice must be seen to be consistent.” Owerri, Imo State-based legal practitioner, Ike Augustine, stated: “The decision is sound, because Section 396(7) of ACJA is not constitutional, as same is contrary to Section 294(5) of the CFRN.


“I expected the National Assembly to introduce this laudable innovation via constitutional amendment, instead of introducing the same via an Act. The law is that any law, which is inconsistent with the provisions of the constitution, is null and void to the extent of its inconsistency. “I will advise the National Assembly to commence a constitutional amendment process to correct this constitutional incongruity.” A former second vice president of the Nigerian Bar Association (NBA), Monday Onyekachi Ubani, noted that while the judgment might appear bizarre in the eyes of non-lawyers: “The truth of the matter is that the lower court erred seriously in the handling of the matter.

“The trial that lasted several years and appeared stalled until the then President of the Court Appeal invoked a section of the Administration of Criminal Act, 2015 that empowered her to grant a fiat to the Judge to go back to the Federal High Court to conclude the trial, which he dutifully did and led to Orji’s conviction and sentence. “One of the grounds of appeal by Kalu’s team of Orji’s lawyers was that the Judge, who concluded the trial, had no jurisdiction, as the said fiat he was given to conclude the trial was inconsistent with the provision of the constitution that a Justice of the Court of Appeal cannot “descend” to also be a Judge of the Federal High Court.

“While Kalu lost this appeal at the Court of Appeal, the meticulous eyes of the Justices of the Supreme Court saw the aberration and did not hesitate to so hold. What the judge said is that the trial of Kalu should start at the Federal High Court before a different and new Judge assigned by the Chief Judge of that court, de novo (from the beginning). “Jurisdiction is a threshold issue and either a court has one or it does not have it and whenever the issue is raised, even if for the first time at the Supreme Court and found to be lacking, the Supreme Court will and has always nullify such trial. “The judgment is sound and there is no basis to criticise it, except on a sentimental basis. It cannot be faulted.”


For Emeka Nwadioke: “One has to, painfully, agree with the Supreme Court that the judgment is technically invalid, even if the apex court has severally frowned at technical justice. It is settled that jurisdiction is the life-wire of the adjudicatory process. Any proceeding bereft of jurisdiction is a nullity.

“The Supreme Court is equally relying on its own precedent, having struck down a similar judgment by Justice Nnaemeka-Agu for lack of jurisdiction, following his elevation to the Court of Appeal. “It is immaterial that it was Kalu that invited Justice Idris vide a fiat issued by Justice Bulkachuwa (as she then was) to deliver the judgment. It may be argued that one cannot approbate and reprobate.

“However, it is trite that parties cannot confer jurisdiction on a court by agreement. Equally noteworthy is that the Court of Appeal, while upholding Section 396(7) of ACJA vide Justice Garba of the Court of Appeal, noted that it may indeed be an ‘absurd’ provision, notwithstanding its noble intendment.” He added: “It is incongruous for a judicial officer to operate in a dual capacity, as Section 396(7) of ACJA purports. This runs contrary to the clear-cut demarcation of the powers of superior courts.

“The judgment also raises the issue of a possible plea of double jeopardy based on prior conviction. However, given that the entire proceedings remain a nullity, the court should have no difficulty of jettisoning such plea. Hopefully, the ACJA provisions on speedy trial will ensure that this sad blot in the anti-graft chapter is soon forgotten.”


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AbiacourtOrji Uzor Kalu
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