By Vincent Adodo, Esq

As Dr. Orji Uzor Kalu resumes legislative duties in the Nigerian Senate, it is apt to reflect on the Supreme Court judgment that set him free and it’s implications for our Justice system.

In 2007, the Economic and Financial Crimes Commission (EFCC) arraigned Dr. Orji Uzor Kalu, a former Governor of Abia State and one Ude Jones Udeogu before a Federal High Court in Lagos on charges of sundry allegations of official corruption and abuse of office. The crux of the charge was that while holding sway as the helmsman of Abia State, Kalu conspired with his Finance Commissioner (Jones Udeogu) to defraud the State of billions of naira.

Before trial could commence in the case, Kalu fired a salvo challenging the jurisdiction of the Court to try him. The trial court dismissed his objection. Kalu travelled through the rostrum of the appellate process up to the Supreme Court in a bid to block his trial to no avail as the Apex Court in 2015 dismissed the appeals filed against the judgment of the Court of Appeal which upheld the Ruling of the trial court.

By the time the coast was clear for his trial in 2015, the system of criminal Justice delivery in Nigeria had experienced a revolution which introduced a new order in the administration of criminal Justice, this was the enactment of the Administration of Criminal Justice Act,2015.

The EFCC re-arraigned Kalu, Udeogu and Slok Nig. Ltd (Kalu’s company) in 2016 before Hon. Justice Mohammed Idris of the Federal High Court. Idris, J was elevated to the Court of Appeal and subsequently took oath of office as a Justice of the Court of Appeal (JCA). Upon the invitation of counsel to Kalu, Idris, JCA was granted a fiat by the President of the Court of Appeal to conclude the trial. The Federal High Court (then specially constituted by Idris JCA for this purpose) convicted and sentenced the defendants to terms of imprisonment.

The defendants’ Appeal to the Court of Appeal against their conviction was dismissed. Jones Udeogu’s further appeal to the Supreme Court was allowed on the basis that Idris, JCA lacked the jurisdiction to further adjudicate on the matter after subscribing to oath as a JCA as he was no longer a Judge of the Federal High Court within the meaning of S. 253 of the Constitution.

The Revolution

The Administration of Criminal Justice Act, 2015 (ACJA) was signed into law by Dr. Goodluck Jonathan on 14th May 2015. The Act is a messianic response to the existential threat posed to the delivery of Criminal Justice In Nigeria by the obsolete Criminal Procedure Act and Criminal Procedure Code, both of which had become incapable of responding to the social ills of a 21st century society. The original version of the Administration of Criminal Justice Bill was drafted by Chinonye Obiagwu, SAN and the bill was passed into law by the Lagos State House of Assembly in 2007. An updated version of the bill was subsequently midwifed into an Act of the National Assembly through the relentless advocacy and efforts of a Non- Governmental Organisation- Centre for Socio-Legal Studies founded by renowned academic and law reformer, Prof. Yemi Akinseye-George, SAN.

ACJA revolutionalised the delivery of criminal Justice in Nigeria by seeking, among others, to eliminate the bottlenecks responsible for the perenial delay in the conclusion of criminal cases. The purpose of the Act as framed in Section 1 of ACJA bears credence to this fact. it is beneficial to reproduce the ippissima verba of particularly subsection 1 thereof which goes thus:

(1) The purpose of this Act 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 interests of the suspect, the defendant and the victim.

A crucial objective of ACJA as borne out in the above text is the speedy dispensation of justice, this necessarily means that cases must be concluded within a reasonable time. Consistent with this and other objectives, ACJA introduced several innovations aimed at improving the delivery of criminal Justice.

Chief among the innovations introduced by ACJA are the abolition of stay of proceedings in criminal trials- section 306. This is one cornerstone provision in the Act targeted at curbing delay of criminal trials through resort to interlocutory appeals and stay of proceedings, the constitutionality of this provision was accorded judicial imprimatur by the Supreme Court in Olisa Metuh v. Federal Republic of Nigeria [2017] All FWLR (pt. 901) 722 as per the lead judgment of Clara Bata Ogunbiyi, JSC (Rtd). Other innovations include day to day trial and limited number of adjournments- section 396(4), (5), (6), award of costs- section 396(6). Trial in abstentia- section 352(4), plea bargaining- section 270, witness expenses s. 251, Non-custodial sentencing- 453 to 467. Interesting is section 396(2) which provides that any objection raised by a defendant to a criminal charge shall be heard by the judge and Ruling thereon reserved till the stage of judgment. As ambitious as this provision seems to appear, the Supreme Court validated it in the case of Destra Investment Limited v. Federal Republic of Nigeria [2018] LPELR – 43883 (SC).

Now, section 396(7) of ACJA was ingeniously crafted to deal with a monstrous mischief, which if not tamed, could rubbish the entire system of adjudication in criminal trials- trial de-novo.
It will also be beneficial to reproduce the ippissima verba of section 396(7) which is as follows:

Notwithstanding the provisions 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

The above provision is purposive, having been invented to deal with a mischief, the mischief of cases having to suffer the misfortune of a fresh start once the judge handling it gets promoted to a Higher Court. The practice of denovo seems to have gained affirmation in Nigeria’s system of adjudication since the case of Ogbuninya v. Okudo [1979] NSCC 77 was decided. Hon. Justice Philip Nnaemeka-Agu while being a High Court Judge delivered judgment in a case he had been presiding over 2 days after his elevation to the Court of Appeal was gazetted by the Military Head of State. The Supreme Court was moved by the legendary Chief Rotimi Williams, SAN to declare the judgment invalid. The Supreme Court agreed with him and since then, the shadow of this decision has never ceased to haunt the judicial system. Once the judge gets elevated, the case has to start afresh, even if the elevation comes a day before the delivery of judgment.

In 2012, the trial of Erastus Akingbola, former Managing Director of defunct Intercontinental Bank Plc, in connection with alleged mismanagement of the bank’s depositors funds had proceeded to the stage of judgment, counsel to the parties having adopted final addresses. Few days before the date slated for the delivery of judgment, the trial judge, Hon. Justice Abiru got elevated to the Court of Appeal. With this development, the matter could not be concluded despite the time and public resources that went into the prosecution of same.

No doubt, if their Lordships of the Apex court had viewed section 396 (7) as a problem solving device, the decision of the Supreme Court would have been otherwise. In the Interpretation of statutes, courts take into consideration the history behind the enactment of the law and the mischief it was introduced to cure: Engr Charles Ugwu v. Senator Ifeanyi Ararume (2007) LPELR-3329 (SC) at 34 paragraphs B-E per Tobi, JSC.

Section 396(7) and the Constitution

The decision of the Supreme Court setting aside the judgment of the Federal High Court which convicted Dr. Orji Uzor Kalu and Ude Jones was predicted on the reasoning that The Hon. Justice M.B. Idris, JCA who handed down the conviction no longer had jurisdiction to so do having ceased to be a Judge of the Federal High Court when he delivered judgment in the matter. Essentially section 397(6) was held to be in conflict with section 253 of the Constitution which provides that:

The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court

The question then is whether Hon Justice Mohammed Idris who had been elevated to the Court of Appeal bench could still exercise jurisdiction as a Judge of the Federal High Court within the contemplation of section 253 of the Constitution, it is humbly submitted that the poser ought to be answered in the positive.

It is submitted with due respect that even though Idris, JCA was generally no longer a Judge of the Federal High Court, the legal implication of the provision is to deem him a Judge of the Federal High Court for the purpose of hearing to finish the case which was already part heard.

The legislative device employed by the National Assembly in section 396(7) of ACJA is consistent with a similar constitutional device employed in section 252(2) of the Constitution which provides that:

(2) Notwithstanding subsection (1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred on this section as may appear necessary or desirable for enabling the Court more effectively to exercise it’s jurisdiction.

Section 252(2) of the Constitution demonstrates that the National Assembly could, confer additional powers on the Court to enable it exercise it’s jurisdiction. This provision is not merely cosmetic or a mere surplursage.

The validity of the legal fact that section 396(7) of ACJA compliments section 252(2) is not a matter of conjecture as all the National Assembly did was to confer additional powers on the Federal High Court in relation to jurisdiction exercised on Part heard Criminal matters

It is trite that in interpreting the Constitution, the Court must be conscious of the fact that the Constitution is a living document which must be interpreted liberally and not with stultifying narrowness, see Sir Udo Udoma, JSC in Nafiu Rabiu v. State (1980) NSCC 291 at 300 where His Lordship intoned:

My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general Maxim ut res magis valeat quam pareat. I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.

In Attorney General, Bendel State v. Attorney General of the Federation (1981) 10 SC 1, (2001) FWLR (pt. 65) 448, the Supreme Court per Obaseki, JSC laid down twelve rules of constitutional interpretion, rules five and six state thus:

5. The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entity, hence a particular provision should not be severed from the rest of the Constitution.

6. While the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed, can yield new and further import of it’s meaning.

It is submitted with respect that a progressive construction of section 252(2) and 253 as commanded by Obaseki, JSC would have saved section 397(6) of ACJA. Were section 252(2) and 253 read together as Obaseki, JSC envisaged, it would have been clear that section 396(7) of ACJA was a complement of section 252(2) and as such within constitutional limits.

Furthermore, section 10(2) of the Interpretation Act is relevant here and it’s text is reproduced:

An enactment which confers power to do any act shall be construed as also conferring all such other powers as are reasonably necessary to enable that act to be done or are incidental to the doing of the act.

It is therefore submitted that section 396(7) of ACJA is valid and Constitutional, being an ingenious legislative device designed to conserve the jurisdiction of the Federal High Court in part heard Criminal matters.

Definitely, another opportunity would present itself for the Supreme Court to reconsider it’s stance in Udeogu’s case, we hope their Lordships would give a teleological approach to section 396 (7) and restore it to the statute books.

The effect of this decision is far reaching on the Nigerian justice delivery system, numerous cases that have been prosecuted to reasonable conclusion pursuant to fiat granted to Justices of the Court of Appeal would have to either commence denovo or be abandoned all together.

The decision reduces the confidence of the public in our Justice system as it rather elevated the letters of the law over and above the imperative to make the law work for the development of the society.

It is hoped that the Supreme Court would reconsider it’s stance in no long time when an opportunity presents itself and restore section 396 (7) of ACJA to the statute books.

© Vincent Adodo, ESQ.
Legal Practitioner and Socio- Economic Rights Advocate.