The Supreme Court on Friday nullified the trial and conviction of a former governor of Abia State, Orji Kalu, and others for N7.1bn fraud.
But no sooner was the judgment made public than the Chairman of the Presidential Advisory Committee against Corruption, Prof. Itse Sagay, SAN, expressed his disapproval of the Supreme Court judgment.
Also, a human rights lawyer, Mr Femi Falana (SAN), said the nullification of Kalu’s conviction was a demonstration of the Nigerian legal system’s capacity to serve the interest of pampered members of the ruling class.
Kalu and his co-accused were on December 5, 2019 convicted and sentenced to jail terms by Justice Mohammed Idris, who was already a Justice of the Court of Appeal, but returned to Federal High Court in Lagos, to conclude the case.
But in a unanimous judgment of a seven-man panel led by Justice Olabode Rhodes-Vivour, the apex court nullified the entire trial, including the conviction and sentencing, on the grounds that Justice Mohammed Idris’ return from the Court of Appeal bench to the Federal High Court to conclude trial was unconstitutional.
It also ordered a fresh trial for Kalu and his co-defendants.
The Friday’s judgment of the Supreme Court was on an appeal filed by one of Kalu’s co-defendants, Jones Udeogu, challenging the fiat given to Justice Idris by the then President of the Court of Appeal on the strength of Section 396(7) of ACJA, to return to the Federal High Court to conclude the trial.
Although, Kalu and Udeogu had, in 2018, applied to the then President of the Court of Appeal, Justice Zainab Bulkachuwa (retd), to issue a fiat to Justice Idris to enable him to conclude the trial, they turned around to challenge the constitutionality of the fiat after it was issued to Justice Idris and the trial had made further progress.
Justice Ejembi Eko, who delivered the Supreme Court’s lead judgment on Friday, declared as unconstitutional the provision of Section 396(7) of the ACJA which was relied on to authorise Justice Idris to return to the Federal High Court to conclude the trial.
Justice Eko held, “Neither the Administration of Criminal Justice Act nor any other statutes, including the Court of Appeal Act, authorises the President of the Court of Appeal to give fiat to a Justice of the Court of Appeal to return to the Federal High Court and perform the functions of the Federal High Court judge.
“The President of the Court of Appeal, not having such authority, acted ultra vires the power of her office when she gave authority to Justice M.B. Idris to conclude the trial.
“The President of the Court of Appeal does not have the power to assign a case to the Federal High Court judge. Also, the Federal High Court Chief Judge cannot meddle in the internal affair of the Court of Appeal.”
Justice Eko held that “once a judge has been elevated to the Court of Appeal, he cannot change to be a judge of the Federal High Court.”
“Section 396(7) of the Administration of Criminal Justice Act does not purport to give him a new appointment.
“Appointments to superior courts of records are exclusively made by the President. Section 396(7) of the Administration of Criminal Justice Act appears to have usurped the powers of the President. That provision is a nullity and the trial is a nullity.”
The apex court set aside “the judgment of the Court of Appeal in appeal CA/L/1064C/2018 delivered on April 24, 2019, particularly in relation to the appellant”.
It ordered that the case be “remitted to Federal High Court to be reassigned by the chief judge to another judge of the court.”
The Economic and Financial Crimes Commission had arraigned Kalu, his firm, Slok Nigeria Limited, and Udeogu, who served under him as the Director of Finance and Account at the Abia State Government House in Umuahia, at the Federal High Court in Abuja in 2007.
Following a request by the EFCC, the case was later transferred to the Lagos Division of the Federal High Court and assigned to Justice Mohammed Idris.
After the EFCC closed the case of the prosecution with 19 witnesses, Kalu and his co-defendants filed no-case submissions.
But before Justice Idris could hear and rule on the no-case submission, he was elevated to the Court of Appeal bench in June 2018.
In order to prevent the case from being transferred to another judge to start afresh, Kalu’s lawyer, Prof. Awa Kalu (SAN), activated Section 396(7) of the ACJA and applied to the Court of Appeal’s President, Justice Zainab Bulkachuwa, to give a fiat to Justice Idris, so that he could return to the High court to conclude the case.
As a result, Justice Idris was given a fiat to continue hearing the case, with a condition that he must conclude it by the end of September 2018.
On July 31, 2018, the judge dismissed the defendants’ no-case submissions and ordered them to open their defence.
The defendants later challenged the jurisdiction of the judge to hear the case, arguing that he was no longer a judge of the high court.
They also filed an application seeking a stay of proceedings pending the outcome of their appeals.
Justice Idris dismissed both.
The Court of Appeal in Lagos also, on April 24, 2018, dismissed the appeal against Justice Idris’ ruling.
Udeogu further appealed to the Supreme Court, which upheld his appeal on Friday.
S’Court judgment, a setback, says Sagay
Reacting to the judgment, the Chairman of the Presidential Advisory Committee against Corruption, Sagay, expressed his disapproval of the Supreme Court judgment.
Sagay, while responding to the judgment, told one of our correspondents that no section of the constitution prevented a judge, who was promoted to a higher court, from continuing to hear pending cases in the lower court.
He said, “I think this judgment is a great disservice to this country. It’s a great setback because it drags us back into the iniquity of cases that have no end without any good reason at all.
“We found, in many cases, judges had spent up to five to seven years on a case, they were promoted and then they could not continue with it. A new judge would start and the case would begin all over again. It was killing our judicial system. That’s why the National Assembly passed that law under the ACJA.
“To my knowledge, there is no provision of the constitution that prohibits a judge who has been promoted to a higher court from completing a case he is considering in his current court.”
He added, “I’m not aware that there is any such provision and I know that, in the past, the judiciary had, by their own interpretation, stated that you cannot be a member of two courts at the same time.”
The senior lawyer also argued that justice should always take precedence over judicial interpretations.
Nigeria’s legal system serving ruling class – Falana
In his reaction, Falana recalled that the Section 396(7) of ACJA was introduced to stop rampant instances where criminal cases involving high profile personalities were stalled for a long period as a result of the elevation of the trial judge to a higher court.
He recalled how the trial of a former Managing Director of the defunct Intercontinental Bank, Erastus Akingbola, which had been fixed for final arguments, was made to start afresh, because the then trial judge, Justice Habeeb Abiru, was elevated to the Court of Appeal bench.
He said, “The same members of the ruling class have now got the Section of ACJA annulled. Head or tail, the members of the ruling class win, and it is the system that suffers.
“The Nigerian legal system has demonstrated its capacity to function effectively and serve the interests of the pampered members of the ruling class.
“A couple of months ago, ex-Emir Lamido Sanusi’s ex parte application to secure his personal liberty from illegal banishment was assigned, heard and granted the day it was filed at the registry of the federal court. On that same day, the certified true copy of the court order was obtained, served and obeyed by the detaining authorities.”
Falana noted that Kalu’s appeal against his conviction and sentence was pending at the Court of Appeal while the proceedings at the trial court were quashed on the basis of the appeal filed by his co-defendant, Jones Udeogu.
He added, “Notwithstanding the order of the Supreme Court that the trial is commenced de novo (afresh), the case will not be concluded soon.
“Once again, the trial will have to go back to the Supreme Court!”
Kalu hails S’Court, says ‘I’ve learnt invaluable lessons’
But Kalu on Friday hailed the judgment even as he said that his five months in jail afforded him the opportunity of learning invaluable lessons about Nigeria and the citizenry.
Kalu said, “The past five months have been quite a profound period for me. As challenging as that period has been, it has provided me an opportunity to learn invaluable lessons about our country, our peoples, our justice system and the true meaning of love. I mean love for family, love for our country and love for humanity.
We’re set for Kalu, others’ retrial –EFCC
Meanwhile, the EFCC has said it is set for the immediate retrial of Kalu.
According to the News Agency of Nigeria, EFCC’s spokesman, Mr Dele Oyewale, in a statement on Friday said the commission expressed sadness over the nullification of Kalu’s conviction by the Supreme Court.
“The EFCC considers the judgment of the apex court as quite unfortunate. It is a technical ambush against the trial of the former governor.
“The Commission is prepared for a fresh and immediate retrial of the case because its evidence against Kalu and others is overwhelming.
“The corruption charges against Kalu still subsist because the Supreme Court did not acquit him of them,” the statement read.