The Orji Kalu Verdict; A Slavish Devotion to Technicality – Kenneth Ikonne

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The Supreme Court of Nigeria yesterday set aside the conviction and imprisonment by the Federal High Court, Lagos, of Senator Orji Uzor Kalu, former Governor of Abia State, for fraud. The Supreme Court held that Justice MOHAMMED IDRIS LIMAN, who pronounced the judgment of the trial court convicting Senator Kalu, had, at the time of the judgment, lost the jurisdiction to preside, having been elevated, and sworn in, as a judge of the Court of Appeal. The Supreme Court thus quashed the conviction and sentence, and ordered that the Senator be tried afresh by another judge of the Federal High Court.

The Senator had, in December, 2019, been found guilty, alongside his company, Slok Nigeria Limited, and one other person, of defrauding the Abia State government to the tune of N7.65 billion Naira, during his tenure as Governor of the State between 1999 and 2007. He was sentenced to a term of imprisonment for twelve years. The conviction was the denouement of a trial that had spanned twelve long years, prolonged mostly by delays engineered by the Senator’s defence team.

The judgment of the Supreme Court turned on the interpretation of section 396(7) of the Administration of Criminal Justice Act, 2015, and section 253 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Supreme Court held that section 396(7) of the Administration of Criminal Justice Act was inconsistent with section 253 of the Constitution, and was therefore, to the extent of the inconsistency, void, in keeping with the provisions of section 1(3) of the Constitution.

In my humble view, the interpretative approach adopted by the Supreme Court was too restrictive and mechanical, and has produced a manifestly absurd and technical outcome. A purposive and liberal construction of section 396(7) of the Act would have shown that there is no inconsistency whatsoever with section 253 of the Constitution. And a purposive canon of construction was the appropriate canon to have been employed in the circumstances.

Now, section 396(7) of the Administration of Criminal Justice Act 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 PART – HEARD CRIMINAL MATTER PENDING BEFORE HIM AT THE TIME OF HIS ELEVATION and shall conclude the same within a reasonable time.”

On the other hand, section 253 of the Constitution provides that:

“The Federal High Court shall be duly constituted if it consists of at least one judge of that court.”

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There is a crucial and novel reason in law for the enactment of section 396(7) of the Administration of Criminal Justice Act. That reason was the need to eliminate one of the key mischiefs responsible for the non – conclusion of Criminal trials in our Criminal Justice System: the fact that it is the judge who heard all the evidence, and conducted the trial, that must write and pronounce the judgment, or else the judgment is a nullity. Once the particular judge who conducted the trial is elevated before judgment, no matter how long the trial has lasted, and not withstanding that key witnesses may have died or left the jurisdiction, the trite position, which section 396(7) was enacted to remedy, is that the trial must start DE NOVO, or afresh.

Thus, a trial like Kalu’s own, which had been conducted by Justice LIMAN for 12 arduous years, stood the risk of being commenced DE NOVO, unless the elevated judge, relying on section 396(7), was given permission by the President of the Court of Appeal, to return to the trial court for the specific purpose of concluding the trial, and pronouncing judgment, within a reasonable time.

Viewed against this backdrop, the purposive and liberal reasoning which the Supreme Court should have adopted is that when an elevated judge of the Court of Appeal invokes the specific jurisdiction enshrined in section 396(7) of the Administration of Criminal Justice Act, and returns to the trial court for the specific purpose of concluding a criminal matter that had been part – heard by him, that returning judge is, in the eyes of the law, deemed to be a judge of the Federal High Court, and is thus competent to conclude the specific criminal trial. Had the Supreme Court been less mechanical and more creative, and adopted this flexible and purposive canon, it would have seen clearly that section 396(7) of the Administration of Criminal Justice Act was not in conflict at all with section 253 of the Constitution, but rather, complemented it.

Tragically, the Supreme Court’s undue devotion to technicalities has shot down an ingenious statutory innovation without propounding an alternative remedy to that fundamental cog which requires that a criminal matter must start DE NOVO if the judge that part – hears the evidence is elevated to the Court of Appeal. Now, all that defendants in a corruption trial will do is to to employ every forensic trick to delay their trial, while hoping that the trial judge is elevated and the trial is thus automatically frustrated by operation of law!

This is the mischief which a liberal and purposive construction of section 396(7) of the Administration of Criminal Justice Act would have avoided. According to HALSBURY’s LAWS OF ENGLAND, volume 44(1) page 906 paragraph 1474:

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“…the office of all judges is always to make such construction as shall:
(a) suppress the mischief and advance the remedy.
(b)suppress subtle inventions and evasions for the continuance of the mischief PRO PRIVATO COMMODO (for the private good), and
(c)add force and life to the cure and remedy according to the true intent of the makers of the Act PRO BONO PUBLICO (for the public good).”

The admonition above is the fount of the PURPOSIVE canon of statutory interpretation. The canon presumes that Parliament intends that the Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find a construction which furthers every aspect of the legislative purpose (ie, a purposive construction). It may thus be necessary to give the enactment, particularly where it is not grammatically ambiguous, a strained construction. In the English case of JONES V. WROTHAM PARK SETTLED ESTATES (1979) 1 ALL E.R. 286 AT 289, LORD DIPLOCK held that:

“I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act.”

Similarly, in A.G. OF NEW ZEALAND V. ORTIZ(1982) 3 ALL E.R. 432 at 442, STAUTON, J, referred to:

“the power of the courts to disregard the literal meaning of an Act and to give it a purposive construction.”

SEE also paragraph 1475 of HALSBURY’S LAWS OF ENGLAND, VOL 44(1).

It is a cardinal principle of legal policy which all courts are enjoined to adhere to in the interpretation of statutes, including the Constitution, that where the application of one of the opposing constructions of an enactment would produce a beneficent result (that is, a result beneficial to the subject or the state), that is a factor favouring that construction, and indicates that the Court should widen the application of the enactment. On the other hand, where the application of one of the opposing constructions of an enactment would produce an adverse result (that is a result detrimental to the subject or the state), that is a factor telling against that construction. SEE HALSBURY’s LAWS OF ENGLAND Vol. 44(1) page 838 paragraph 1379.

There also exists in Statutory Interpretation a presumption favouring consequential construction. By it, it is presumed to be the legislative intention that the Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment corresponds to its legal meaning, must assess the likely consequences of adopting each construction. If, on the balance, the consequences of a particular construction are more likely to be adverse than beneficent, that is a factor telling against that construction and may call for a strained interpretation. Where the application of an enactment yields an adverse result, the interpretative factors may on the balance indicate that the Court should curtail its application. On the other hand, where the application of an enactment yields a beneficent result, the interpretative factors may on the balance indicate that the Court should widen its application. This is the crux of the liberal construction. SEE also A.G. LAGOS STATE V. A.G. FEDERATION & 35 ORS (2003) 12 NWLR (PT.883) 1 at 159; ADESANYA V. PRESIDENT OF NIGERIA (1981) 2 N.C.L.R. 358 at 359.

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The Supreme Court completely ignored all these hallowed interpretative maxims in Kalu’s case, with horrendous consequences for Nigeria’s efforts to curb official corruption. The judgment cannot be justified by the old decision in OGBUINYINYA V. OKUDO, where NNAEMEKA – AGU, JCA ( as he then was) returned to the High Court of the East Central State, sitting in Onitsha, to deliver judgment in a trial he had conducted before elevation to the Court of Appeal. The decision was rightly set aside on appeal, there being no legislation empowering him in that regard. The situation in Kalu’s case is thus clearly distinguishable on the facts – and in law.

Orji Kalu’s conviction was one of the few signal successes of President Buhari’s much vaunted anti – corruption campaign, and was all the more remarkable because the convicted politician was a key ally of the President, and a member of the ruling All Progressives Congress – the President’s political party. In a nation blighted by years of mind – boggling corruption and rampant impunity, resulting in decrepit infrastructure and economic ruin, President Buhari’s promise to confront the malady headlong and stamp it out had raised hopes. And when the Senator was convicted last December, despite having strenuously campaigned for the President’s re – election, it was taken to be a clear indication that not even loyalty to the President was going to be a ticket to compromise the President’s resolve to stamp out the malaise!

Now, all those expectations have turned to ashes in the mouth, especially in Orji Kalu’s native Abia State, where successive governments since 1999 have left the State in ruins. The Supreme Court’s verdict is devoid of philosophy and is a rude setback to the present administration’s anti corruption efforts.

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