ORJI KALU AND OUR LAWS by Adedeji Obadofin
It would be recalled that on the 8th of May 2020, the Supreme Court of Nigeria nullified the 12 (twelve) year jail term of Senator Orji Uzor Kalu (the former Governor of Abia State and the Chief whip of the Senate) and the former Director of Finance, Abia State Government House, Mr Ude Udeogu (who was sentenced to ten years imprisonement). Hon. Justice Mohammed Idris who was the presiding judge had on the 5th of December 2019 found the accused persons guilty of the corruption charges levelled against them and sentenced them accordingly after the duo were convicted. However what raises the eyebrow in this instant case is on the major ground on which the supreme Court based it’s decision.
The trial which commenced at the High Court in Lagos State (2007) was presided over by Hon. Justice Mohammed Idris. However, he got elevated to the Court of appeal sometimes in June 2018 while the trial was still subsisting. In a bid to conclude the trial, the learned Justice of the court of Appeal took permission from the then president of the Court of Appeal, Zainab Bulkachuwa who issued a fiat backed up with S. 397 of the Administration of Criminal Justice Act which permits a judge of the High Court who has been elevated to the court of Appeal to sit over and conclude matters before him at the High Court. For all intents and purposes, the provision of this section provides thus:
“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 same within a reasonable time provided that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal”
The Supreme Court held that the above provision is not in tandem with the provisions of the Constitution and thereafter ruled that the whole trial amounts to a nullity. Thereafter, the Apex Court ordered a fresh trial of the entire case.
Areas of Agreement
- It is a trite principle of law that any trial done without jurisdiction is a nullity and can never be remedied. See the case of Madukolu .v. Nkedilim (1962)2. SCNLR 341. Indeed, jurisdiction is the life wire of any litigation. Any trial lacking in jurisdiction is void ab-initio. To buttress this point, a consious production of S.253 of the Constitution of the Federal Republic of Nigeria provides that;
“The Federal High Court shall be duly constituted if it consists of at least one judge of that court” This provision however does not open doors to “any judge” but specifically ” any judge of that court” i.e the High Court. Any attempt to deviate from this provision would rob the Federal High Court of the requisite jurisdiction to sit on any matter.
Moreover, S. 239(2) of the Constitution of the Federal Republic of Nigeria states that the Court of Appeal shall be duly constituted if it consists of at least three justices of the Court of Appeal. What this translates into is that a Justice of the Court of Appeal is meant to exercise his judicial powers as bestowed on him. Indeed nothing in the whole gamut of S.249 — S.254 allows a High Court judge who has been elevated to the Court of Appeal to come back and conclude trials before him in the High Court. Indeed, nothing in these constitutional provisions allows a judge to keep his legs firmly rooted in the Court of Appeal and his hands in the High Court. This outrightly renders S. 397 of the Administration of Criminal Justice Act (Cited Supra) which gives such a permission null and void. Moreover, S.1(3) of the Constitution of the Federal Republic of Nigeria provides that any law which is inconsistent with the provisions of the Constitution is entirely null and void. Moreover, the court in the case of Obianwuna & 5 ors .v. Obi Okudo (1979)47. SC.13/1979 held that the judgement passed by Nnaemeka Agu JSC on a matter in the High Court after he had been elevated to the Court of Appeal was null and void. In the case of Sodeinde .v. The State (1978), the court held that a judgement delivered by the Chief Justice of Oyo State on a date after he had been transferred to Ondo State as a chief judge of that state amounted to a nullity. Going by the above provisions, the supreme Court applied the law as it is not minding whose Ox is gored.
Areas of disagreement
- Issues of technicalities: It is quite unfortunate that our legal system has in recent times allowed technicalities take precedence over the core principles of justice which our laws are meant to protect. In the case of Amaechi .v. INEC & ors (2007) LPELR. SC(252/2007, the Supreme court per Oguntade JSC held that “the sum total of the decisions of this court is that the court must move away from the era when the adjudicatory power of the Court was hindered by a constraining adherence to technicalities. This often results in the looser of a civil case taking home all the laurels while the supposed winner goes home in a worse situation than when he approached the Court”
In the instant case of Senator Orji Uzor Kalu and one other, the Economic and Financial Crimes Commission (EFCC) who were the claimants were ordered to start afresh a case which had been decided and the accused persons found guilty merely on grounds of technicalities. What boggles the mind therefore is “where is the concept of Justice in this kind of situation where an accused person is given another chance at redemption on grounds of technicality? .
In the case of Adelusola & ors .v Akinde & ors (2004) LPELR-SC, 259/2001, Edozie JSC held that the attitude of the Courts nowadays is to do substantial Justice without undue adherence to technicalities. In his words, “Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice”.
Furthermore, it is a trite principle of law that there must be an end to litigation. The order of the supreme Court for a fresh trial of Senator Orji Kalu negates this principle. In the case of Oshoboja .v. Amida & ors (2009) LPELR,SC. 54/2002, Muntaka-Coomasie JSC held that it is an application of the rule of Public policy and in the interest of the common good that there should be an end to litigation. This is covered by the established doctrine of interest republicae ut sit finis.
- The case of Senator Orji Uzor Kalu and plethora of other cases has indeed opened up numerous lacunas in most of our laws, most especially, the Constitution of the Federal Republic of Nigeria. The Constitution is expected to expressly voice out on whether or not an High Court judge who has been elevated into the court of Appeal can come back to sit and conclude on cases before him in the Federal High Court. Moreover, S.396(7) of the Administration of Criminal Justice Act should be reviewed. This particular section made use of the words; “notwithstanding the provisions of “ANY OTHER LAW.” This phrase and the entire section itself is inconsistent with the Constitution which is the grund norm.
- It is also recommended that the fresh trial of Senator Orji Uzor Kalu be fast-tracked and timeously decided in order to curb attempts at fabrication and concoction of facts which are meant to totally exculpate the defendants. It is recommended that the defendants be re-arrested by the EFCC, detained and granted administrative bail while the trial continues in full swing.
About the Author
Adedeji Obadofin is a premium Graduate of Law from Kogi State University who is dogged about contributing his quota to the growth and overall development of the legal profession through his articles. He can be reached on 08107297632 for constructive criticisms, commentaries and discussions