Nwagu Legal Consults: A Pandora’s Box: Legal Implications of the Supreme Court of Nigeria’s Recent Decision in Orji Uzor Kalu v. FRN

Background Facts:

The Supreme Court of Nigeria in the recent appeal in Orji Uzor Kalu v FRN was presented with the opportunity to revisit the age-long doctrine of the supremacy of the Nigerian Constitution above every other law of the land. The Hon. Justice M.B Idris of the Federal High Court (as he then was) had been presiding over Charge No: FHC/ABJ/CR/56/07 FRN v. Orji Uzor Kalu & 2 Ors, a serving law maker in the Senate of the Federal Republic of Nigeria under the umbrella of the ruling All Progressives Congress (APC) and Governor of Abia State between May 29, 1999 and May 29, 2007.

Characteristic of most criminal trials before the coming into effect of the Administration of Criminal Justice Act in 2015, the trial had suffered quite chequered a history, same having been on-going since 2007. The Administration of Criminal Justice Act which was largely received by both Bar and Bench as the long-awaited Messiah-law came in force to eschew the technical and procedural bottlenecks which were making names for themselves as the waterloos that stalled criminal proceedings in Nigeria. Life was much easier, or so we thought.

After the close of the case of the prosecution, the defence team of Sen. Orji Uzor Kalu filed and argued a No Case Submission but before ruling was delivered on same the Hon. Justice M.B. Idris was elevated to the Court of Appeal and was duly sworn in. The defence team vide a letter dated 26^th June, 2018 which was served same day applied to the President of the Court of Appeal for a fiat to enable the Hon. Justice M. B. Idris to descend to the Federal High Court and conclude the trial. The said application was made pursuant to section 396(7) of Administration of Criminal Justice Act, 2015. Apparently, they had hoped that their No Case Submission would be granted and the trial would be over. Their request was favourably considered and my Lord, the Hon. Justice M. B. Idris, descended to the Federal High Court, delivered ruling on the No Case Submission and held that the Defendants had a case to answer. I can imagine the disappointment of the Defendants and counsel.

As is typical of every defence counsel, this humble author inclusive, it was time for serious strategizing and tinkering. Then, as in Archimedes principle: Eureka! The defence team filed a motion asking the Hon. Justice M. B. Idris, who they had requested his return to conclude the trial, to recuse himself for the reason that he has been elevated to the Court of Appeal. Of course the judex would have none of it. The resultant appeal up to the Supreme Court ran concurrently with the substantive trial pursuant to the provisions of the Administration of Criminal Justice Act. The Defendants were convicted by the Hon. Justice M.B. Idris and sentenced accordingly.

The Supreme Court empanelled a full court and heard the appeal from the refused motion which judgment was delivered on Friday, 8^th May, 2020 wherein they struck down section 396(7) of the Administration of Criminal Justice Act, 2015 on the premise that it runs in the face of section 253 of the 1999 Constitution of Nigeria (as amended). The apex court further held that the President of the Court of Appeal lacked jurisdiction to issue fiat to Hon. Justice M. B. Idris to descend to the Federal High Court to conclude a part-heard criminal case.

The Relevant Laws:

1999 Constitution of the Federal Republic of Nigeria (as amended) CFRN

Section 1

This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
………….
If any other 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.

Section 4

The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation which shall consist of a Senate and a House of Representatives.

Subsections 2, 3 and 4 with their schedules provide for the items the National Assembly can legislate on: the peace and good government of the Federation, Exclusive Legislative List and Concurrent Legislative List.

Subsection 8 clearly provides that the legislative powers of the National Assembly and that of the House of Assembly of a state shall, save as otherwise provided by the constitution itself, be subject to the jurisdiction of courts of law established in the subsequent section and of judicial tribunals established by law, and that the legislature shall not enact a law which acts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law.

Section 249

There shall be a Federal High Court.
The Federal High Court Shall Consist of -

Chief Judge of the Federal High Court; and
Such number of Judges as may be prescribed by an Act of the National Assembly.

Section 252

For the purpose of exercising any jurisdiction conferred upon it by this Constitution or as may be conferred by an Act of the National Assembly, the Federal High Court shall the powers of the high Court of a State.
Notwithstanding subsection(1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to more effectively exercise its jurisdiction

Section 253

The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court

Administration of Criminal Justice Act, (ACJA) 2015

Section 396(7)

“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.”

Judicial Disposition Prior to the ACJA 2015

The Supreme Court had clearly in the civil case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 SC 32 held that the Hon. Justice Philip Nnaemeka-Agu, then a Judge of the High Court of Anambra State (God rest his soul) was wrong to have come back to deliver judgment in the matter after his elevation to the Federal Court of Appeal. This disposition was followed in a long list of subsequent cases such as: Bichi v.Shekarau (2009) LPELR- 3874 CA, etc.

May it be humbly noted that there was no statutory provision on the issue of whether a judge who has been elevated to a superior court can descend to the inferior court for the purposes of finishing up uncompleted adjudication. The Nigeria legal system, particularly the federal prosecutors, even defence counsel and courts alike, were faced with challenges and bottlenecks that stalled criminal proceedings to the extent that cases lasted nearly forever without resolution, and among such challenges was the recurrent issue of elevation of judges of a high court who have criminal cases uncompleted and which would be made to start de novo. Then the National Assembly in 2015 birthed the Administration of Criminal Justice Act with some innovative and proactive provisions among which is section 396(7) thereof, which has come under the heavy axe of the Supreme Court.

The entire issue in this article bothers on jurisdiction, which is the life-wire of every adjudication by a court; but we shall dwell squarely on the palpably conflicting laws, and the issue of jurisdiction would have readily been sorted out.

Was the (ACJA), 2015 Duly Enacted by the National Assembly?

It is the humble opinion of this author that the Administration of Criminal Justice Act, (ACJA) 2015 was duly and properly enacted by the National Assembly as it complied with the procedure laid down by the Constitution reproduced supra, save, albeit arguably so, for section 253 thereof. At least it complied entirely with the legislative powers in section 4 CFRN and did not flout section 4(8), not until section 396(7) was tested in the apex court viz-a-viz section 253 of the CFRN.

Does Section 396(7) of the ACJA, 2015 Flout Section 253 or any Other Provision of the CFRN?

The Supreme Court of Nigeria has said the last word on this question when it answered in the affirmative and struck down section 396(7) of the ACJA 2015 having regard to section 1(3) of the CFRN. However, this author thinks otherwise, albeit for academic purposes.

My reasons:

Section 249(2) of the CFRN provides: “The Federal High Court Shall Consist of – (a) Chief Judge of the Federal High Court; and (b) such number of Judges as may be prescribed by an Act of the National Assembly.”

Section 252(2)of the CFRN provides: “Notwithstanding subsection(1) of this section, the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to more effectively exercise its jurisdiction.”

Section 253 of the CFRN provides: “The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court.”

Underlining supplied.

Section 396(7) ACJA, 2015 provides: “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.”

In all honesty and with profound respect to the Supreme Court of Nigeria, section 396(7) ACJA, 2015 does not in any manner detract from or curtail the provisions of section 253 of the CFRN. It is easily discernible that section 396(7) of the ACJA rather enlarged the frontiers and scope of the intendment of the provisions of the CFRN on the issue of elevation of a judge which was not envisaged by the CFRN. It filled a lacuna instead, and that is part of the very reasons for making lesser laws. We humbly submit herein that for a provision of law to contradict or contravene another, the said law would have provided the opposite of that other, either expressly or by implication, and that cannot safely be said of section 396(7) of the ACJA in relation to section 253 of the CFRN.

The above position is even more clearly buttressed by section 252(2) of the CFRN which clearly provides that “….the National Assembly may by law make provisions conferring upon the Federal High Court powers additional to those conferred by this section as may appear necessary or desirable for enabling the Court to more effectively exercise its jurisdiction.”

Underlining supplied.

This author is of the strong belief that it was desirable and necessary that section 396(7) of the ACJA be enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction as clearly provided by the CFRN, and the Hon. Justice M. B. Idris, Justice of the Court of Appeal, was right when he relying on the provisions of law cited herein continued to sit on the case as though he was still a judge of the Federal High Court.

Some questions that easily call to mind include: does section 253 of the CFRN envisage the situation my Lord, the Hon. Justice M. B. Idris found himself in? Of course the answer is nay nay. Whereby the CFRN does not, would any law, section 396(7) of the ACJA in this case, be wrong or said to fly in the face of the CFRN and of course declared ultra vires when it provides for such situation not envisaged by the CFRN? A nay nay, too.

It is clear that the literal rule of interpretation does not aid the approach of the apex court in this instance. So whither the purposive, golden and mischief rules of statutory interpretation? That which is not prohibited is allowed. So whereby the CFRN has not barred an elevated judge in deserving circumstances, to come back to conclude his pending part-heard cases, a lesser statute will be proper to take care of the situation.

It is also my view that no where in the CFRN was the phrase ‘Judge of that Court’ as featured in section 253 was defined to exclude a judge who has been elevated to the higher bench, while minding the express and specific provision of section 396(7) of the ACJA. For the purposes of the law in force when he sat in the case in the Federal High Court, the Hon. Justice M. B. Idris was sitting as a judge of that Court. That is the only interpretation discernible from the situation.

I am also of the view that the CFRN is the framework of our body of laws and cannot provide for all eventualities. That is why it gave law making powers to the National Assembly and State Houses of Assembly in section 4 thereof to make lesser laws that will more appropriately attend to the emerging situations; ditto the laws such as the Supreme Court Act, Court of Appeal Act, Federal High Court Act, and High Court Laws of various States, all laws made by the legislature to extend the frontiers of already existing constitutional provisions to reflect specific realities. It follows that the lesser laws provide for more specific situations with the aim of carrying out the spirits and intendment of the CFRN. That was what section 396(7) ACJA did, to our mind, and to hold as did the Supreme Court in this case was taking technicality a bit too far.

It cannot be the law that any situation not provided for or envisaged in the CFRN, albeit specifically provided in another law, would not stand. The opinion of a justice who participated in hearing an appeal but who has retired at the time of judgment can be pronounced, in what capacity does the said judex render his opinion? There was no need to invoke section 1(3) CFRN by the apex court.

Legal Implications of the Decision of the Supreme Court in Orji Uzor Kalu & 2 Ors v FRN

The fore-most legal implication of the decision of the Supreme Court in the appeal is that section 396(7) of the ACJA is no longer part of our body of laws. But there is more to it.

It would also suggest that such laws as sections 22 of the Supreme Court Act and section 15 of the Court of Appeal Act which both provide that the Supreme Court and the Court of Appeal can hear an appeal and determine same as though they were courts of first instance are bad laws, given that the original jurisdictions of those courts have been explicitly provided for in sections 232 and 239 of the CFRN. With this trend, we could fore-see many good laws falling like soldiers in a war front.

It remains my humble view that perhaps section 252 (2) of the CFRN was not drawn to the attention of our noble law Lords at the Supreme Court, else they would have decided otherwise; even as no injustice was identified to have been meted out on the appellants by the fact that the elevated judex came back to conclude his part-heard case.

I think that this decision of the Supreme Court stands to function more as a Pandora’s Box which would likely open a flurry of litigations challenging the legality of lots of other valid laws which have been enacted by the National Assembly for the peace and good government of the Federal Republic of Nigeria. More sections of the said ACJA could still come under the heavy hammer of the court, and the purpose for making the law would have been more defeated than achieved.

One will decline to comment on the conduct of the proceedings by counsel as each counsel is the master of their facts and best judge of the lawful tactics and strategies they choose to adopt in the prosecution of their cases.

The author admonishes more circumspection on the probable collateral effects of certain decisions on our body of laws so that everything that was built over time does not crumble with one fell swoop.