Orji Uzor Kalu’s Judgement: An Urgent Call For Amendment Of The 1999 Constitution By Piribonimibo Isaac Harry

The Supreme Court of Nigeria had on Friday 8/5/2020, declared as nullity the conviction meted out to Orji Uzor Kalu & Ors by Justice Mohammed Idris then of the Federal High Court, on the grounds that the said judgment was delivered in bereft of jurisdiction, since Justice Idris was at the time of the delivery of the said judgement, already elevated to the Court of Appeal. This is regardless of the fact that Justice Idris acted in line with the provisions of Section 396(7) of the Administration of Criminal Justice Act (ACJA) 2015.

Let’s not behave as though we didn’t see this coming. Every active lawyer engaged in criminal litigation knows deep down within him/her that the provision of Section 396(7) of ACJA will one day be hunted down, since same is inconsistent with and grossly violates the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), our grundnorm. We cannot feign ignorance about the 1977 decision of the Supreme Court of Nigeria which upturns a judgement delivered by Honourable Justice Nnaemeka Agu of the High Court of Anambra State (as he then was). Where the Supreme Court, having considered the said judgement to have been delivered after his elevation as a Justice of the Federal Court of Appeal, declared as nullity the said judgement. Interestingly, the said precedent brought to life the provision of the Nigerian Constitution that stresses on the sanctity of judicial offices. Its drafters, in a bid to avoid contradictions in the interpretations of the roles of each of the judicial offices, consciously segmented the functions, titles, responsibilities and compositions at various levels.

A Judge in the High Court or Federal High Court is known and addressed as a Judge of that Court, while his Court of Appeal counterpart is known and addressed as a Justice of the Court of Appeal. The functions of both judicial officers are quite different from each other. Save for the fact that both cadre of judicial officers administer justice in their respective temple, their jurisdictions differ, in that, unlike a High Court, a Court of Appeal cannot entertain criminal trial while exercising its original jurisdiction, please see Section 239(1) of the 1999 Constitution of Nigeria (As amended). Its composition while exercising its original jurisdiction is three Justices as against one Judge for the High Court, please see Section 239 (2). The Justices of the Court of Appeal is stated to rank next to Justices of the Supreme Court and as equals to Chief Judge of a High Courts. The distinction between these two categories of judicial officers is obvious and ought not to be mistaken by anyone.

While choosing not to blame the Executive Arm of the Federal Government and the 7th National Assembly for proposing and passing the ACJA, I wish to state further that the true intent of the law is genuine and progressive of our criminal law system. Testimony abounds in this regards from some of us who have tested its provisions. The positive side of the law, especially the way it quickens the dispensation of criminal justice, far outweighs its negativity, even to the extent that it outshines the entire embodiment of the Act, and perfectly conceals its hidden flaws even at the face of existing judicial precedence like the Justice Nnemeka Agu’s case which provides in the contrary. Unfortunately, Section 386(7) of the ACJA, which incidentally for me, is the most commendable provision of the Act, and which undoubtedly benefits litigants at criminal trials, is that which the Supreme Court, by implication of its decision in the Kalu’s case, has nullified.

For ease of reference, Section 396(7) of ACJA is hereby reproduced:

“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.”

From the purports of the above provision, it is glaring to note that this provision, despite the fact that it runs contrary to the provisions of Sections 1(1) and (3) of the 1999 Constitution of Nigeria (as amended), which emphasizes on the supremacy of the provisions of the Constitution, and which forbids inconsistencies of its provisions with other laws, also derogates the authority of the President of the Court of Appeal, by subjecting him to authorize his justices to submit themselves to the Procedural Rules of a lower Court. How can a Justice of the Court of Appeal, whose rank is equal to the Chief Judge of Federal High Court or of High Courts, be seen sitting under the authority of the latter on justification of completing an unfinished matter within that jurisdiction? This does not just offend the law but also offends common sense. However, the overriding wisdom of its drafter must be commended, as by enacting this law, they actually meant well for our criminal justice system.

What the Orji Uzor Kalu’s judgement portends for the Nigerian justice system is that, several cases, both criminal and civil, whose decisions were delivered functus officio by judges elevated to Court of Appeal, would be reawakened by litigants and convicts alike (where applicable), and tested on appeal. Just like the Rt. Hon. Emeka Ihedioha vs. Sen. Hope Uzodinma’s case, the Supreme Court by this judgement, have activated a consciousness in the mind of litigants to pursue on appeal already concluded matters which shares similar features with that of Orji Kalu’s. I for one would be a victim in this regards, as I already have two judgements in my favour, which the then presiding judges of the Federal High Court condescended from their elevated offices as Justices of the Court of Appeal to deliver the judgements. While I keep expecting notices of appeal any moment from now from Plaintiffs in both matters, I cannot but imagine the quantum of associated hardship this judgement would effect on the Nigerian legal jurisprudence.

Since the problem has already happened, other than playing the blame game, what is expected from every progressive legal mind is to think out a solution to correct this mishap of greater magnitude that has befallen our corpus juris. Should the ACJA be amended? I don’t think so. What I will however advocate for is a further review of the provision of the 1999 Constitution, by introducing a proviso after section 239-240 of the Constitution, allowing for a three months delay prior to the inauguration and oath taking of the newly appointed Justice of the Court of Appeal, to round up and deliver judgements on all preside over cases nearing completion.

For ease of reference sections 239-240 of the 1999 Constitution (As amended) is hereunder reproduced.

“239. (1) Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether –

(a) any person has been validity elected to the office of President or Vice-President under this Constitution; or

(b) the term of office of the President or Vice-President has ceased; or

(c) the office of President or Vice-President has become vacant.

(2) In the hearing and determine of an election petition under paragraph (a) of subsection (1) of this section, the Court of Appeal shall be duly constituted if it consists of at least three Justices of the Court Appeal

240 Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the High Court of the Federation Capital Territory, Abuja, High Court of a state, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a state, Customary Court of Appeal of a state and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.”

The proposed proviso could be added thus:

“Provided that a Judge of the High Court newly appointed to the Court of Appeal shall be given a period not exceeding three months prior to his oath taking and inauguration as a Justice of the Court of Appeal, to complete and deliver judgements on all pending matters nearing completion, which he as a Judge of a High Court has been presiding over before his elevation to the Court of Appeal.”

The operation of the proposed proviso above is possible, as it does not offend any statutory provision or case law. Need I mention that the announcement of elevation of a High Court Judge to the position of a Justice of the Court of Appeal does not automatically make the said appointee a Justice of the Court of Appeal. What activates the said appointment is his/her oath taking and inauguration into that capacity.

While the above suggestion may likely happen in the long run, considering the length of time it would take for the National Assembly to gather two-third of affirmative votes from State Houses of Assembly to amend the Constitution, an interim measure pending the incorporation of the proposed proviso into the Constitution, is for an administrative arrangement between the President of the Court of Appeal and the Chief Judge of the Federal High Court and of States to be worked out, that would facilitate a  delay on the oath taking and assumption of duty in the Court of Appeal by a newly elevated judge, pending the completion of prolong cases nearing completion. This step however, should not prejudice the career interest of the elevated judicial officer. I believe this approach is not illegal.

Section 396(7) of ACJA is a fine law, even though it is inconsistent with the overriding provision of the 1999 Constitution. Its good intendment should not be sacrificed on the Alter of respect for the status of judicial officers. It is not worth it. If the status quo enabled by the Kalu’s Judgement is overlooked, what it portends is that, some accused persons with means and who are mostly on bail, may utilize this shortfall of this judgement for their selfish gains. They may trigger their connections to have elevated to the Court of Appeal, a judge handling their prolonged criminal trial which perhaps, is at the verge of completion, so as  to commence the trial de novo. While this may be good for the judge, and a big win for the accused person, the Nigerian criminal justice system would be left to suffer. This should not be the case.


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