The Supreme Court’s judgment nullifying the conviction of former Governor Orji Uzor Kalu for N7.65billion fraud, also nullified Section 396(7) of the Administration of Criminal Justice Act (ACJL) 2015, a major tool in the quest for speedy administration of criminal justice. Is this the end for the Act?
When, last December 5, the Correctional Services wardens led Orji Kalu to the temporary cell on the Federal High Court, Lagos premises minutes after his sentence to 12 years imprisonment for fraud, he smiled at reporters taking his pictures and said, “2023, here we come.”
The former Abia State Governor was probably faking the bravado, but Friday’s judgment by the Supreme Court nullifying his conviction for N7.65 billion fraud, may soon help bring his bluster to reality.
The Apex Court, while delivering judgment in an appeal filed by Kalu’s co-defendant Ude Jones Udeogu, set aside the judgment of Justice Mohammed Idris who convicted and sentenced the duo.
Justice Idris judgment came 12 years after Kalu’s trial began in another Federal High Court.
The judge sentenced the former governor to 12 years in prison while Udeogu bagged 10 years in prison.
A third defendant, Slok Nigeria Limited, was ordered to be wound up and its assets forfeited to the Nigerian government.
The trio was prosecuted by the Economic and Financial Crimes Commission (EFCC) for N7.65 billion fraud committed during his tenure as Abia State governor between 1999 and 2007.
Dissatisfied, Udeogu challenged the judgment at the Appeal Court and lost. But his appeal succeeded at the apex court.
The Supreme Court
A seven-member panel of the apex court in a unanimous decision set aside the judgment of Justice Idris of the Federal High Court in Lagos which convicted and sentenced Messrs Kalu and Udeogu.
Justice Ejembi Eko, who delivered the lead judgment, declared the conviction of the appellants as null and void on the ground that Justice Mohammed Idris was already a Justice of the Court of Appeal as at the time he delivered the judgment sentencing the appellants.
He lacked the power to return to the Federal High Court to conclude the case which he had partly heard before his elevation to the higher bench.
The Supreme Court, also declared as unconstitutional, Section 396(7) of the Administration of Criminal Justice Act (ACJL) 2015, under which Appeal Court Justices had been permitted to return to the high court to continue handling the cases they didn’t complete before their elevation.
But the apex court held that a Justice of the Court of Appeal cannot operate as a judge of the Federal High Court.
Justice Ejembi Eko delivered the apex court’s lead judgment and other members of the panel, comprising, Justices Rhodes-Vivour, Mary Odili, Olukayode Ariwoola, Kudirat Kekere-Ekun, Inyang Okoro and Amina Augie consented.
Court of Appeal
Under Section 396(7) of the Administration of Criminal Justice Act (ACJA), 2015 former President of the Court of Appeal (PCA), Justice Zainab Bulkachuwa (retd), issued fiats to justices, including Justice Idris to return to the Federal High Court to conclude their cases.
On December 9, 2019, Justice Bulkachuwa identified Section 396(7) as being instrumental to the completion of Orji’s trial.
She said she had issued fiats 50 times to about eight Justices of the Court of Appeal, including Justice Mohammed Idris, to enable them to conclude part-heard cases.
Justice Idris, she noted had concluded 15 cases through the application of the provision of section 396(7) of ACJA, in addition to Kalu’s case.
“I have given fiats at least 50 times to about eight Justices of the Court of Appeal to go back and complete their assignments.
“The most recent is that of Justice Idris when he completed the matter of Orji Kalu. But before then, he had completed about 15 matters.
“Similarly, Justice Talba, and Justice Umar, Justice Ojo from the FCT High Court; and from the Federal High Court were Justices Idris, Justice Aliyu, I think about five of them from there, who have completed matters”, Bulkachuwa said in Abuja at a national workshop organised by the Centre for Socio-Legal Studies in collaboration with Federal Ministry of Justice.
What does Section 396(7) of the ACJA say?
In Section 396(7) of the ACJA, 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 partly-heard criminal matter pending before him at the time of his elevation; and shall conclude the same within a reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal.”
Why the Supreme Court nullified the section
A Senior Advocate of Nigeria (SAN) Abiodun Owonikoko explained how the Supreme Court lawfully quashed Orji’s conviction and 12-year imprisonment..
In a Facebook post minutes after the Supreme Court ordered a retrial of Kalu’s case, Owonikoko said: “It was easy to predict that it might not survive on appeal based on that snag of the judge coming back from court of appeal to deliver judgment on a criminal trial that he did not conclude before his elevation.
“Who delivered the judgment at the trial court? Was it Idris J (as he had then ceased to be)? – or Idris JCA (Justice of the Court of Appeal) as he had already become at the material time?”
In nullifying Section 396(7) of the ACJA, the Supreme Court would have relied on several sections of the Constitution, including:
Section 239(2): “The Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court of Appeal;
Section 253: “The Federal High Court shall be duly constituted if it consists of at least one judge of the court
Section 1(3): “if any law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void;”
In 2007, the EFCC charged Orji Uzor Kalu alongside his company, Slok Nigeria Limited and one Mr. Ude Jones Udeogu for alleged money laundering involving the sum of N7.2 Billion in Charge No: FHC/ABJ/CR/56/2007 at the Federal High Court Abuja.
After arraignment, Kalu and the other defendants filed applications, praying the court to strike out the charge on the grounds of non-disclosure of prima facie case, the validity of the law under which he was charged and the breach of an ex-parte order of injunction made by the High Court of Abia State prohibiting his trial in any court.
The trial judge, Justice J. Bello, then of the Federal High Court, Abuja held that there was no merit in any of the grounds.
Dissatisfied with the decision of Justice Bello, Kalu and co-defendants appealed and lost. He also lost at the Supreme Court, which ordered that the case should start afresh at the Federal High Court.
The case was transferred to the Lagos division of the Federal High Court and assigned to Justice Idris consequent upon which trial commenced March 13, 2017.
The root of the problem
During trial, 19 witnesses were called on both sides, the prosecution closed its case on May 11, 2018 and the case was adjourned till May 30, 2018 for defence.
Kalu and co-defendants brought no case submission applications on the day they were supposed to open their defence and the applications were adjourned for adoption of written addresses on June 27, 2018. However, before the adjourned date, the trial judge, Justice Idris was elevated to the Court of Appeal.
A member of Kalu’s legal team Gordy Uche (SAN) wrote to the Court of Appeal President on June 26, 2018 to grant Justice Idris fiat to conclude the case.
Justice Bulkachuwa did and trial resumed.
The same defence team later filed another application asking Justice Idris to recuse himself on the ground that Justice Idris lacked jurisdiction to continue to adjudicate on the case.
The motion was filed on September 25, 2018 (as the trial was gathering steam) and was argued the following day on Kalu’s behalf by another member of his defence team, Mike Ozekhome (SAN) (There were several SANs on his defence team).
Justice Idris turns down request to recuse himself
One of the defence counsel, Dr Mike Ozekhome SAN made an application praying the judge to recuse himself from further hearing the case of Kalu
“On 25th September, 2018, I filed a motion before Justice Mohammed Idris, on behalf of Orji Uzor Kalu, prayerfully requesting the erudite Justice (Judge?) to recuse and disqualify himself from further trying Kalu, as he (Justice Idris), had been elevated to the Court of Appeal on 22nd June, 2018,” Ozekhome said in a statement.
“The following day, 26th September 2018, I argued the motion in proceedings that lasted for about 4 hours. The pith of my argument was that Justice Idris, having been elevated to the court of Appeal, was no longer qualified to sit as a Judge of the federal high court, and was thus disqualified from trying Kalu.
“I contended that section 396 (7) of the ACJA which permits a high court Judge elevated to the court of appeal to continue with and conclude a part heard matter was in gross conflict with the provisions of sections 1(1), 1(3), 238(2), 239, 240, 250(2) and 253 of the 1999 Constitution, and therefore liable to be struck down.
“I cited, inter alia, the earlier Supreme Court case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 S.C 32. I, therefore, urged the court to remit the case file back to the chief judge of the federal high court, for reassignment to another Judge.
The learned trial Judge in a very brief ruling held that though my argument was “compelling and the issues raised recondite and paramount”, he would still go ahead and hear the case since the same issue had earlier been raised (albeit orally) and he had overruled same.
He concluded that since his earlier ruling on the matter was already being challenged at the Court of Appeal, he would go on with the trial.”
Justice Idris, who is usually known for always erring on the side of caution (ex abundante cautela), dismissed the application and continued to hear the case.
Written addresses in respect of the no case submission were adopted and the respective no case submission applications were overruled by Justice Idris as a result of which respective defendants appealed to the Court of Appeal against the ruling dismissing the no case submission.
At this stage, it was only the 2nd defendant, Udeogu who, despite the consent of parties that Justice Idris should conclude the matter, raised the issue regarding the constitutionality of Section 396 (7) of ACJA and the propriety of the fiat issued thereto.
The Court of Appeal dismissed the respective appeals and resolved all the issues against the defendants including the issue of constitutionality of Section 396 (7) of ACJA.
Who filed the appeal at Supreme Court?
The judgment of the Supreme Court was delivered based on the application filed by Udeogu before the apex court.
Kalu did not file any application before the Supreme Court nor did he ask the apex court to quash his conviction. He was a respondent alongside the EFCC in the appeal filed by Udeogu, hence the apex court in its judgment only referred to Udeogu, who was the appellant.
The EFCC was the 1st respondent, Kalu was the 2nd respondent while Slok Nigeria Limited was the 3rd respondent.
Udeogu’s appealed to the Supreme Court was solely on the issue of the constitutionality of Section 396 (7) of ACJA.
Issues raised by the apex court judgment
Can a convict from a criminal trial benefit from a judgment he did not appeal? Or, can he be a secondary beneficiary of a judgment in which he was a respondent?
Observers have noted that Udeogu’s appeal at the Supreme Court arose from the ruling of Justice Idris on the no case submission and not an appeal touching on the merit of the case against Kalu.
They also noted that the Supreme Court never considered the merit of the case and did not, in any way exonerate Orji Uzor Kalu in respect of the allegation of the laundering of over N7.65 Billion belonging to Abia State Government of which he was found guilty by Justice Idris.
Hence the apex court held that the case be reassigned to another judge of the Federal High Court and start de-novo.
A leading constitutional lawyer, Chief Sebastian Ter. Hon (SAN) explained some of the issues.
He said: “The Supreme Court held that the entire proceedings was a nullity. So nothing stops Orji Uzor Kalu from benefitting from that because he was convicted at the Federal High Court which conviction has been nullified by the Supreme Court.
“So, whether or not he appealed the judgment is of no consequences. The judgment was declared a nullity and once a nullity everything is null and void it is as if it never happened, as if it never took place. So, there is nothing wrong with the judgment. The effect of a nullity has long been settled that once something is null and void it is as if it never existed, the whole thing is a nullity.
“The Justice of the Court of Appeal who went back to the High Court to conclude his matter with a fiat from the President of the Court of Appeal was not competent to do so in view of the unequivocal provisions of the 1999 constitution as amended.
“No judge could inherit the case to deliver judgment on it, that is how it works. So the Supreme Court did not make any mistake and Orji Uzor Kalu is entitled to walk the streets free for now until another judgment is given otherwise in the matter”.
For activist lawyer, Femi Falana (SAN) a “criminal appeal is personal, that you even sign your own Notice of Appeal yourself.”
Effects of the judgment
One possible major effect of the Supreme Court’s judgment is that the at least 50 criminal cases pending or concluded at various High Courts in reliance on Section 397 of the ACJA might have to start anew.
Legal Editor JOHN AUSTIN UNACHUKWU, ADEBISI ONANUGA and ROBERT EGBE
Culled: The Nation