I
read with much pleasure, my learned friend, Uche Amulu’s commentary
and the analysis contained therein, of the recent judgment of the
Supreme Court of Nigeria (hereafter, “SCoN”) in the case of Orji
Uzor Kalu v. FRN
(hereafter “Orji
Kalu”). For purposes
of brevity, I will adopt the facts of the case and his summary of the
judgment as he laid them out. I may however add or proffer an
alternative summary, which Mr. Amulu may have not included (for good
reasons I believe) if need be. I have also read the said Judgment of
the SCoN.
As
he had already noted, the relevant laws to this analysis are (1) the
Constitution of the Federal Republic of Nigeria, 1999 (as Amended)
which hereafter shall be referenced simply as “the constitution”
and (2) the Administration of Criminal Justice Act 2015 (hereafter
ACJA).
My
review of the SCoN’s judgment is conducted from two main legal
perspectives or methods, viz
the black- letter or
doctrinal method and the socio-legal methods. In acknowledgement of
the divergent definitions that these two terms lend themselves, let
me clarify what I mean in reference to the black-letter or doctrinal
and the socio-legal methods.
For
the purposes of this rejoinder, my use of the term “black-letter”
method of analysis refers to an analysis or review of the judgment
from a strictly legal perspective and on a correctness (as opposed to
reasonableness) standard. This is a method of analysis that will
simply examine the SCoN’s judgment in the light of the
“letter-of-the-law”. For that reason, I sought to determine what
the SCoN said the law is (viz-a-vis
the relevant
sections/provisions of the constitution and ACJA) and offer my
opinion on whether or not they are correct in that their
interpretation of those laws.
On
the socio-legal analysis, I analysed the SCoN’s judgment from a
reasonableness standard, taking into account, its impacts to and
consequences for (a) The constitution, (b) Cost of Litigation and
Access to Justice (c) Integrity and Administration of the Criminal
Justice system particularly AND (d) The integrity and administration
of the overall litigation/court systems in general.
In
conclusion, I offer some recommendations on how remedy the effects or
consequences of the SCoN’s judgment.
The
Black-Letter/Correctness Analysis
It
appears to me, that the central issue on the appeal to the Supreme
Court was whether or not the trial Judge, M.B. Idris J (as he then
was and now JCA) was a Judge of the Federal High court within the
meaning of sections 249 (2)(b), 250, and 253 of the constitution,
when he rendered judgment and convicted the defendants in the Orji
Kalu case. Framed
differently, the appeal was a direct challenge to the validity and
constitutionality of section 396 (7) of the ACJA 2015. Again, Mr.
Amulu has laid out these provisions in his initial commentary, and I
adopt them as laid out for this rejoinder. However, just to put
things into perspective, the said section 396(7) of the ACJA gives or
(now more accurately) purported to give “a
judge of the High Court, who has been elevated to the Court of Appeal
. . .dispensation to continue to sit as a high court judge”
so as to conclude “any
partly-heard criminal matter pending before him at the time of his
elevation”.1
The
undisputed fact in this case was that Idris J, had already subscribed
to the oath of office as a Justice of the Court of Appeal at the time
of rendering the judgment. Secondly, he received a “fiat”
pursuant (purportedly) to the said section 396(7) of the ACJA, from
the
President of the court of Appeal
(PCA) to go back and conclude the said Orji
Kalu trial.
I supplied the emphasis above for a reason to be addressed later.
I
have read arguments that the defendants (or at least one of them) in
the Orji
Kalu case
actually sought the dispensation of the PCA upon which Justice Idris
returned to conclude the trial and that therefore it was
‘unconscionable”
for them to benefit from the irregularity that they had themselves
authored. In my opinion, this is of no moment because it is settled
law from a long line of decided cases that neither the court nor
parties can confer jurisdiction on a court that lacks one, whether by
express agreement or by implied conducts.2
The
Supreme Court determined that Idris (JCA) “having
been elevated to the Court of Appeal, has ceased to be a Judge of the
Federal High Court. Accordingly, he had been deprived of whatever
jurisdiction he had as a Judge of the Federal High Court”
to further adjudicate on the Orji
Kalu trial
and render judgment on it. Eko (JSC), delivering the unanimous
Judgment, further held that section 396(7) of the ACJA was
inconsistent with section 290(1) of the 1999 constitution. Applying
section 1(3) of the constitution, he declared the said section 396(7)
of ACJA void to the extend of its inconsistency.
I
do not quite agree with a finding section 396(7) of ACJA inconsistent
based on section 290(1) of the constitution. But in any case, saddled
with the same task, and on strict application of the black-letter
method, I would have arrived at the same conclusion but on the basis
of section 253 of the constitution, as opposed to section 290(1) of
it. Section 253 of the constitution which established the
jurisdiction of the Federal High Court, states that the court shall
be deemed properly constituted “if
it consisted of at least one
judge of that court”.
It
follows therefore, again speaking strictly from a black-letter
perspective, that at the time of rendering the judgement, M.B. Idris
is a not a judge of the Federal High Court. And where once the SCoN
has found section 396(7) to be inconsistent with the constitution,
his status as a Justice of the Court of Appeal at the time of the
judgment renders the said judgment bereft of jurisdiction.
The
question that needs to be considered, but perhaps not on a
black-letter consideration of the judgment, is whether two things can
be said to be in conflict or inconsistent with each other if they are
complimentary to each other and ultimately reconcilable. This line of
thought will be considered in the socio-legal analysis of the
judgment.
On
a strict application of the principles of jurisdiction as laid down
in the seminal case of Madukolu
v Nkemdilim, the
trial court in the Orji
Kalu
case, (a
la Idris
J) because it was not “properly
constituted”
is therefore bereft of jurisdiction3,
and the effect/consequence of any judgment delivered by a court
without jurisdiction is, has always been and may well continue to be,
a nullity4.
While
I may agree with Mr. Amulu in his analysis that “section
396(7) of the ACJA [was]enacted by the National Assembly with aim of
giving the Federal High Court additional powers to more effectively
exercise its jurisdiction”, I
do not however believe that they effectively achieved that aim. The
power to grant dispensation to conclude a trial at the
Federal High Court was
vested in the President of the Court of Appeal, thereby negating the
effects of section 19 (3) & (4) of the Federal High Court Act
which vested the power of administration and assignment of cases in
the Chief Judge of the Federal High Court. That, in and of itself
alone, is problematic.
On
the basis of the foregoing analysis, and having read the full
transcript of the Supreme Court’s reason for its decision, this is
surely not one of those judgments that you wonder what exactly is the
law it applied or how they came to their conclusion. The Supreme
Court, having approached its interpretation of the relevant sections
of the constitution literally and rigidly (I may add), was entitled
to the conclusion that it reached and can therefore, in my opinion,
not be faulted on a strict black-letter based analysis of the extant
laws.
The
Socio-Legal/Reasonableness Analysis
As
we all know, the effects and consequences of judgments go beyond the
immediate parties for who they were rendered/delivered. The grand
purpose or duty of a court of law is, in my opinion, to do justice.
Granted that there may not be a generally accepted/acceptable
definition of what justice is/entails, what is justice is not or does
not entail is however not as controversial.
A
court of law must always be guided by this primary purpose, as with
the rules of law, in approaching its decisions. With respect, I feel
like the SCoN, by its decision in the Orji
Kalu
case, sacrificed substantial justice on the alter of doctrinal
affirmation or discipline. I say that because, this case, no matter
the way you look at it, turns on constitutional interpretation, on a
simple phrase in the constitution (i. e. “one
judge of that court”
in section 253) and finally turns on a balancing exercise between the
competing rights, factors and interests in this case.
As
Mr. Amulu rightly noted, the constitution, though clearly states that
the Federal High Court is only properly constituted when it has at
least “. . . one
judge of that court”:
who or what ”. . . one
judge of that court”
means/refers to, had not received any prior Judicial interpretation.
This was an opportunity for the SCoN to render that interpretation,
bearing in mind, the aims, purpose and objectives of the
Administration of Criminal Justice Act 2015, as well as other equally
poignant factors that will be outlined shortly.
In
my opinion, a reasonable approach to interpreting or defining
who/what “one judge
of that court” means
is not the literal interpretation approach or rule which the SCoN
seems to have adopted in this case. In the English seminal case of
Dupont Steel v Sirs
which seems to be the foundational precedent for statutory
interpretation in most common law countries, Lord Justice Diplock had
this to say about the interpretational role of the courts5:
“When
Parliament legislates
to remedy . . . a defect or a lacuna in the existing law .
. . the role of the judiciary is confined to ascertaining from the
words that Parliament has approved as expressing its intention what
that intention was, and to giving effect to it”.
A
corresponding Nigerian authority in this regard is the case of Rabiu
v State where the SCoN
had this to say specifically about constitutional interpretation6:
“In
interpretation of the Constitution, mere technical rules of
interpretation are to some extent inadmissible in a way
so as to defeat the principles of government enshrined in the
constitution
Where the question is whether the constitution has used an expression
in the wider or narrow sense,
the court should whenever possible and in response to the demands of
justice, lean to the broader interpretation unless
. . . narrower the interpretation would best carry out the object
and purpose of the constitution”
Also,
in AG Lagos State v.
Eko Hotels Ltd & Anor,
the SCoN restated this position when it held that7:
“ .
. . where the meaning
[of the Constitution] is not directly obvious on the face of the
language, the court will investigate the intention behind the use of
the language and come out with an interpretation or construction that
best fits the apparently hidden intention”.
From
the purpose of ACJA 2015, it was clear that it set out to cure some
defects/mischiefs in the administration of criminal justice. Its
purpose was said to promote8:
“efficient
management of criminal justice institutions, speedy dispensation of
justice, protection of the society from crime and protection of the
rights and interests of the suspect, the defendant, and the victim”.
Applying
these authorities, I will submit that the phrase “one
judge of that court”
does not immediately lend itself to a clear and unambiguous meaning,
especially when viewed in the light of said section 396(7) of ACJA,
which until this judgment, was a valid law. It is my opinion, that
the SCoN, should have approached their interpretation of both section
290(1) and 253 of the constitution in such a manner that would not
defeat the central purpose of ACJA or metastasise the mischief or
defect (viz
unreasonably long periods of trial)
that the said section had intended to cure/remedy. By its
interpretation, I argue that the Supreme Court has rather than “save”
the constitution (as many commentators were quick to assert), further
endangered the constitution in the following ways.
Hampers
the Actualization Fair Trail Within Reasonable Time, Liberty/Freedom
of Movement
Section
37 of the constitution guarantees “fair
hearing within a reasonable time”
in the “determination
of . . . civil rights and obligations”
of all citizens. This is a right that is more on paper than
attainable for most Nigerians encountering the criminal justice
system. With no pun intended, Eko (JSC), had conducted a review of
the instant section 396 of ACJA, particularly its subsection 2, and
acknowledged that that section, as well as section 395(2) of ACJA and
section 36(1) of the Constitution are “all
about . . . speedy trial”9.
It
will sadly be the case, following this judgment, that criminal trials
will continue to take longer (double the time) whenever the instance
such as was the case in Orji
Kalu
arises and the trial Judge is elevated to the Court of Appeal. The
aspect of this that undermines the fairness of such trial is in the
case of a less wealthy defendant (or complainant). Assuming that the
defendants in this case were not persons with the financial
wherewithal to prosecute their defence to whatever length required.
The implication for a less wealthy defendant will be a doubling of
the cost of the trial, which could hamper the quality of
representation that defendant receives where such defendant is no
longer able to afford the services of a good/senior lawyer and is
then forced to hire probably a new wig.
On
the reverse, the opponent is the Federal (or State) government, with
‘unlimited’ resources.
When
considered further in the light of the fact that the prosecution
viz-a-viz
the
State/FRN (and not the defendant) would have caused the elevation of
the Judge, it becomes even more unconscionable and unfair that this
would be the legal principle because the defendant is being thrown
into undue hardship for the actions of the prosecution.
The
impact of this on personal liberty is best appreciated when liberty
is viewed beyond physical liberty10.
Anyone who has been subject or part of litigation (whether criminal
or civil) will understand the emotional and mental toll that it takes
on the participants. Recall that sometimes, the defendants may be on
onerous bail conditions that places severe restrictions to a lot of
things in their lives, including movement (travelling abroad is the
most common). The
Supreme Court itself agreed this much when it held that seizure of
international passport of a citizen amounted to an incursion into
that citizen’s freedom of movement in Director
of SSS v Olisa Agbakoba11.
On
the basis of these analysis, I will adopt the words of the Supreme
Court itself in Rabiu
(supra) to submit that by this Judgment in Orji
Kalu, it has defeated
“the principles of
government enshrined in the constitution” a
la fair trial, trial
within a reasonable time, liberty and freedom of movement.
Increases
the Cost of Conducting Litigation and Access to Justice
As
I noted earlier, the implications of this judgment go beyond the
immediate defendants and also beyond the prism of criminal Law
system. In a country like ours where the justice system and the
judiciary itself are known to be susceptible to influence or
manipulations, elevation of trial judges could be the next tactics
for obstructing justice and frustrating poorer litigants from
accessing the individual justices in their case.
Imagine
an influential defendant or plaintiff (including government or a
government agency) who knows that his or her case is weak (whether
criminal or civil), and just influences the elevation of the trial
judge on the eve of judgment. Think about the proverbial case of the
poor widow and the rich/influential opponent; where the poor widow
strives with the last drop of her possessions to try and reclaim her
property that the so called influential opponent had snatched off
her, and after about 5 years of trial, whether by the making of the
rich/influential opponent or not, the Judge is elevated to the court
of appeal on the eve of rendering judgment. By this time, the widow
is more probable than not to have run out of resources and may not be
able to finance a whole new trial as a result of this.
On
the basis of this Orji
Kalu judgment, that
widow’s access to justice has been undermined, if not totally
denied.
Undermines
the Integrity of Criminal Trials and Its Investigations
Cases
such as the Orji Kalu
case is one which perhaps the evidence is not time sensitive.
However, there are trials and criminal investigations that its
evidence and the underlying investigation may be sensitive to passage
of time (rape/sexual assault may be one of them). With this judgment
and the consequence thereof a
la trial de
novo, this legal
principle may have only contributed to denying the victims in such
cases justice for no error or wrongdoing of their own.
Consider
the implications of this judgment to malicious and
politically-motivated prosecutions that we all know, go on in
Nigeria, then you will understand why this decision could very easily
become a tool for oppression and persecution more than anything else.
Defendants could very easily be arraigned on trumped-up charges, and
on the eve of their acquittal, the trial Judge is elevated to the
court of Appeal so as to start their ordeal afresh.
Undermines
the Integrity of Litigations Generally
One
scenario to illustrate this point is our election petition cases,
which the constitution stipulates has to be concluded within a set
timeframe (180 days I believe). I would not think it is beyond what a
desperate government in power could do to frustrate any given
election petition matter in which it fears might not be favourable to
it, by causing the elevation of a member of such tribunal on the eve
of concluding the matter so as to begin a new hearing, by which the
180 days may either completely elapse, or no longer be enough to take
the matter up till the last appellate court for review.
On
the basis of these socio-legal considerations, I will submit that the
decision of the Supreme Court in the Orji
Kalu case is
impeachable on a reasonableness standard.
The
Way Forward
It
still remains the duty and obligation of the legislature to
make/amend laws. Truth remains that if the legislature had done its
duty thoroughly and properly with respect to the vexatious section
396(7) of ACJA, the Supreme Court will have no issue giving effect to
it.
Having
said that, I am of the strong view that the durable and sustainable
cure to this defect in the ACJA is a constitutional amendment, that
would:
- permit Justices of the Court of Appeal to serve as Judges of the respective High Courts from where they have been elevated to the court of appeal, on an agreement/arrangement between the President of the Court of Appeal and the Chief Judge of that High court, for the purpose of concluding “partly-heard” matters in the interest of Justice
- Alternatively, High Court Judges elevated to the Court of Appeal may be prohibited or prevented from subscribing to the oath of office as Justices of the court of Appeal, until after such time that hey have concluded “partly-heard” and “imminently-ending” trials pending before them at the High Court. As an incentive, this could be done so that for the purposes of their rights and privileges as Justices of Court of Appeal, their time in office as JCAs would start counting at the date of their appointment as opposed to the date of their subscription to the oath of office as JCAs, which could be a long time after due to delays in concluding cases at the High Court.
Ikenna
Aniekwe writes from Toronto, Canada and apologises for the length of
this commentary.
Ikenna
Aniekwe holds a Bachelor of Engineering degree (Elect/Elect - Power
Option) from Nnamdi Azikiwe University, Awka Nigeria; an LLB (Summer
cum Laude) from the University of the West of England, Bristol UK, BL
from the Nigerian Law School and most recently, an LLM in
International Business and Human Rights Law (research) from the
prestigious Osgoode Hall Law School of York University, Toronto
Canada.
Ikenna
is also a Senior Associate at NICCOM LLP niccomllp.com where he
brings his wide breadth of his experience into bear in advising on
the firm’s most remarkable works.
Prior
to his sojourn into Law, Ikenna was (and still retains a substantial
interest as) a renowned filmmaker with skills in screenwriting,
Directing and Producing with over 50 Film titles to his credit.
He
also has a hobby and a side career in football, with a certification
and license from the Footballer Association of England and Wales in
Adult football coaching. He is also a member of the Nigerian Referees
Association for over a decade, a registered member of the Referees
Association of England and Wales (Non-active) and of the Canadian
Soccer Referees Association.
Ikenna
is an avid researcher of law with a broad interest in International
Law and Human Rights generally; particularly the effects of
International Business norms and practices on Human Rights in the
Global South. He hopes to proceed on a PhD studies in the near
future.
Citations:
1
Administration
of Criminal Justice Act, 2015, s. 396 (7)
2
See
Braithwaite
v. Skye Bank PLC [2012]
LPELR-15532 (SC)
3
(1962) All NLR 578 at 594
4
See
Matari
& Ors v. Dangaladima & Anor [1993]
LPELR-1846 (SC)
5
[1980]
1 All ER 529
6
[1980]
8-11 SC 130
7
[2006] LPELR-3161 (SC)
8
Administration of Criminal Justice Act 2015, s.1
(1)
9
Destra Investment Ltd v. FRN & Anor [2018]
LPELR-43883(SC)
10
Section 35 of the constitution guarantees
personal liberty
11
(1999) LPELR-954 (SC)
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