On the 29th of April 2019, the Federal High Court sitting in Lagos (Coram: Hon. Justice Mohammed Idris) convicted the Ex-Governor of Abia State of Nigeria, Chief Orji Uzor Kalu and sentenced him to 12 years imprisonment, among other sentences.

Prior to the conclusion of the case, Idris J. was elevated to the Court of Appeal. Notwithstanding the elevation, the then President of the Court of Appeal, Hon. Justice Zainab Bulkachuwa (Rtd), gave the Judge a fiat pursuant to section 396(7) of the Administration of Criminal Justice Act (ACJA) 2015, permitting His Lordship (Idris J.) to descend to the lower Court (Federal High Court) to deliver the Judgment in issue.

The appeal against the Judgment to the Court of Appeal was refused, hence the appeal to the Supreme Court. Interestingly, on Friday May 8, 2020, the Supreme Court quashed the conviction of Chief Orji Uzor Kalu on the grounds that the Federal High Court acted without jurisdiction in convicting Chief Orji Uzor Kalu. The Supreme Court thus sent the matter back to the Chief Judge of the Federal High Court for reassignment.

Concerned Nigerians, particularly some legal practitioners have “queried” the decision of the Supreme Court and wondered what the provision of section 396 (7) of ACJA 2015 is still doing in ACJA and why the Supreme Court failed to uphold the said provision. With insinuation that the decision is more political than legal.

While awaiting the fuller reason for the decision of the Supreme Court, it has become imperative to put it in words that the present decision of the Supreme Court is legally sound and without blemish.

From inception, Section 396(7) of the ACJA 2015 has been red-flagged, leaving curious minds to ponder on whether the provisions would survive a judicial test.

Section 396(7) of the ACJA VS Sections 250 and 253 of the Constitution

Section 396(7) of the ACJA 2015 provides that:

Notwithstanding the provision of any other law to the contrary, a Judge of a 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 purposes 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 appointment of Judges of the Federal High Court is sanctioned by Section 250 of the 1999 Constitution of Nigeria (as amended). And unless a person is so appointed and took the appropriate judicial oath of office and the tenure still subsisting, he cannot sit as a Judge of the Federal High Court. Section 253 of the same Constitution stipulates that the Federal High Court shall be duly and properly constituted if it consists of at least one judge of that court.

With this in mind, it is simply elementary that the provision of Section 396 (7) of the ACJA 2015, which allows a former Judge of the High Court, who has been elevated to the Court of Appeal to return to the lower court to conclude part-heard criminal matters and deliver judgment is contrary to and inconsistent with sections 250 and 253 of the Constitution.

It is inconsistent because it allows a Judicial Officer who has ceased to be a judge of that court to sit as a judge against the spirit of Section 253 of the Constitution, which prescribes that only a judge of that court can sit and form a quorum.

The locus classicus case of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 is an authority that quorum/proper constitution of the Court is an essential component of jurisdiction. And a court that is not properly constituted lacks jurisdiction to entertain any matter. An improperly constituted court is an incompetent court. A trial, no matter how well conduct, without jurisdiction, is a nullity. A court cannot impose jurisdiction on itself when it has no jurisdiction. Parties cannot by their agreement confer jurisdiction on a court.

In the present Orji Uzor Kalu’s appeal, as the Supreme Court has been reported to have held that Idris J. cannot act as the Judge of 2 (two) courts at the same time. Hon. Justice Idris was already a Justice of the Court of Appeal, as at the time his Lordship delivered the Judgment. This is clearly indicative that as the time of the Judgment, which the Supreme Court has now set aside, Idris J. was no longer a Judge of the Federal High Court as envisaged by the Constitution. Thus, any law or instrument empowering him to sit and deliver judgment as a Federal High Court Judge is null and void to the extent of its inconsistency with the Constitution.

In Ogbuinyanya v. Okudo (1979) 9 SC 32, the Supreme Court set aside a judgment delivered by Nnaemeka-Agu J. (as he then was) in 1977, because by the time the judgment was delivered his Lordship (Nnaemeka-Agu J.) had been elevated to the Federal Court of Appeal (i.e., the Court of Appeal as it was then known), but only came to deliver the judgment. The Supreme Court set aside the judgment on the ground that his Lordship (Nnaemeka-Agu, J.) was no longer competent to sit as a Judge of the High Court of Onitsha. The Supreme Court consequently remitted the case to the High Court for retrial for that reason. It is interesting to point out that the case started in 1958 as Suit No O/71/58. It is more interesting to note that the matter is still pending at the Supreme Court.

The provisions of section 396(7) of the ACJA 2015 was meant to be a legislative intervention to cure the perceived hardship that decisions like Ogbuinyanya v. Okudo (supra) caused. But that intervention cannot be permissible when it is still inconsistent with constitutional provisions.

This is simply the law. Call it strict legalism, but I am afraid, that is what the law is mostly all about. Section 396(7) of ACJA 2015 has been struct down and it is not the first nor will it be the last statutory provision that will be struct down for its inconsistency with the Constitution. The fact that it involves a politically exposed person does not make it peculiar at this time.

Conclusion

As much as speedy dispensation of criminal justice is desirable, it should not be at the expense of rule of law. It should not be an affront to our dear Constitution. The Supreme Court being the alpha custodian of our Constitution has once again shown that the supremacy of the Constitution should and cannot be compromised on the altar of speedy trial of a criminal case.

For Chief Orji Uzor Kalu, it is only a discharge and not an acquittal. It is too early in the day to roll out celebration drums. If the prosecution is willed, let the prosecution and the associated intrigues restart. More briefs and more pays for the lawyers!

Featured Image Credit: Vanguard.