Appeal Court justice as judge of High Court: A commentary on the Supreme Court decision in Udeogu v FRN
Chino Obiagwu(SAN)

By Chino Obiagwu(SAN)

The decision of the Supreme Court of Nigeria in the case of Ude Jones Udeogu v Federal Republic of Nigeria & 2 Others(SC622c/2019, delivered on May 8, 2020), known in the media as the Orji Kalu case, has set Nigeria’s criminal jurisprudence backward in a manner that is hardly justifiable.

The crux of the judgment is that section 396(7) of the Administration of Criminal Justice Act 2015, ACJA, which allowed a High Court judge who is newly elevated to the Court of Appeal to return and conclude his part-heard criminal matters at the High Court while also performing his functions as a justice of the Court of Appeal, is unconstitutional because it conflicts with the provisions of the 1999 Constitution on the composition of the High Court.

The Supreme Court held that a justice of the Court of Appeal is not a judge of the High Court, and therefore cannot sit as such judge, and that a statute such as ACJA cannot confer on him powers that is absent in the constitutional provision.

The innovative provision of section 396(7) of ACJA was introduced to reduce incidents of part-heard criminal cases starting afresh because the judge handling the cases is appointed to a higher court. This practice of starting cases de novo usually lead to failure of prosecutions, because the witnesses will nearly always be reluctant to return to court for another round of tedious trials.

The Supreme Court found in this case that section 396(7) of ACJA contravenes section 290 of the Constitution because it tries to give powers of a High Court judge to a justice of the Court of Appeal, which is not given by the Constitution. Being the grundnorm, any law contrary to the constitutional provision is null and void.

We respectfully hold the view that the decision is, procedurally and substantively, unjustified. It is procedurally flawed because it was the appellants in the case (as defendants at the trial court) who requested for the newly elevated trial judge to return to complete the trial. A person cannot benefit from his own actions, if later found to be unlawful.

The decision is also substantively flawed because a statute can give additional powers to a judge or justice, or to the court, and that would not be considered as unlawful or conflicting with the Constitution. It will conflict with the Constitution if such statutory provision removes, limits or diminishes the constitutional provisions.

There are other provisions of many statutes that permit the justices of the appeal court to exercise the powers of the trial court, such as sections 16 and 22 of the Court of Appeal Act and Supreme Court Act respectively. Also, laws establishing administrative inquiries or panels, permit a judge to sit as chair or member of such administrative panel, without diminishing his powers as a judge of the High Court or justice of the appeal court when he returns to that position or concurrently performs same.

Thus, section 396(7) of ACJA simply added a function to the newly appointed justice of the Court of Appeal but has not diminished his role, position or function as a justice of the Court of Appeal. Secondly, on substantive flaw of the decision, is that, it is statute that determines the judicial function of the judicial officer, and on this particular purpose of completing part-heard criminal matters, the statute (ACJA) has, for that purpose only, created a judicial function for the newly elevated justice of the Court of Appeal, which does not limit or stop him from also sitting as justice of the Court of Appeal. For that purpose and period, he is a judge of the High Court.

A provision of a statute that is in conflict the provision of the Constitution is voided because the (statutory) provision, if put into effect, will defeat the constitutional provision or limit its application or efficacy. A statutory provision cannot be considered as conflicting with the constitution if it does not interfere or limit or obstruct the provisions of the Constitution. We most respectfully think that section 396(7) of ACJA did not interfere with section 290 of the Constitution to limit or diminish its purport.

Facts of the case

On October 13, 2016, the former Governor of Abia State (now a Senator), Orji Kalu, his company Slok Nigeria Ltd, and Mr Jones Udeogu, were charged at the Federal High Court Lagos with 7-count charges of corruption. The trial commenced before Justice M.B. Idris and the prosecution called 19 witnesses and closed its case.

The defendants filed a no-case submission, and before this was heard and determined, Justice Idris was on 20 June 2018 appointed as justice of the Court of Appeal, and was sworn-in on 22 June 2018. Upon the letter of request by the counsel to one of the defendants, the President of the Court of Appeal, acting under the provisions of section 396(7) of ACJA, issued permission for Justice Idris to return to the High Court and complete the case.

If the case were to be re-assigned to another judge of the High Court, it would have to start afresh, and the prosecution will have to recall all the witnesses. This is a herculean task, which this new provision of ACJA sought to prevent.

Now, Justice Idris returned and completed the case, and the defendants were convicted. The former Governor was sentenced to 12 years in prison and Mr Udeogu to 14 years.

Meanwhile, when Justice Idris heard the no-case submission made by the defendants, he overruled it and held that they had a case to answer, whereupon they appealed to the Court of Appeal, where they raised the issue that Justice Idris could not continue to hear the case after his elevation. The Court of Appeal dismissed the appeal and held that the provision of section 396(7) of ACJA in this respect was in order. It was this decision of the Court of Appeal that was appealed to the Supreme Court.

While the appeals were pending, the trial continued at the High Court. Of course, in pre-ACJA dispensation, the trial would have stopped to await the decision of the appeal courts, an infamous enterprise that had stalled hundreds of cases of politically exposed persons, and had considerably stultified Nigeria’s fight against corruption. This is because under section 306 of ACJA, a trial cannot be stayed or suspended because of an appeal against any interlocutory decision of the court.

Some state-level versions of ACJA have gone further to provide that no interlocutory appeal can be filed, and that any complain against any decision of the court should be brought as one appeal at the end of the case. Section 306, as well as section 396(7) of ACJA now struck down by the Supreme Court, are among the 54 or so innovations in ACJA, which are highly acclaimed to have kick-started modernizing and improving our criminal justice administration.

Section 396 (7) of ACJA provides thus: “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 matte pending before him at the time of his elevation and shall conclude thesame within a reasonable time: Provided that this subsection shall not prevent him from assuming duty as a justice of the Court of Appeal.”

Decision of the Supreme Court

The Court of Appeal had held that, ordinarily, where a judge is elevated to the Court of Appeal, he ceased to exercise the function of his former judicial position, and any action or decision he made would be void. This has been Nigeria’s adjudicatory jurisprudence for long, as exemplified in such cases as Ogbunyinye v Okudo (1979) NSCC 77, and Our Line Ltd v S.C.C. Nigeria Ltd & Ors(2009) 17 NWLR (Pt. 1170) 383; Iyela v C.O.P (1969) 1 NMLR 180, among many other cases.

However, the Court of Appeal found that where a statutory provision gives a special dispensation to an elevated justice, then it is a lawful exception to the rule. It was this decision that the Supreme Court overturned and declared section 396(7) of ACJA that made such dispensation as unconstitutional. Hon. Justice Ejemba Eko, who read the leading judgment of the Supreme Court, stated that the section conflicts with:
‘… the powers or the jurisdiction of the Federal High Court as dulyconstituted under Section 253 of the Constitution. That is, that “theFederal High Court shall be duly constituted if it consists of at leastone Judge of that Court”. I should think that the special dispensation granted to the “Judge of the High Court elevated tothe Court of Appeal – to continue to sit as a High Court Judge onlyfor the purpose of concluding any part-heard criminal matterpending before him at the time of his elevation” cannot beaccommodated under or by Section 252 of the Constitution. I must point out, right away, that by the tenor of Section 253 of theConstitution, the Federal High Court is not duly constituted byJudge(s) who had ceased to be judge(s) of that Court by the fact ofhis elevation to the Court of Appeal or otherwise.’

His Lordship Ejemba Eko JSC then concluded emphatically that: “Ab initio, section 396(7) of the ACJA 2015 was set out to frontally contradict and challenge the letters, substance and spirit of section 290 (1) of the 1999 Constitution. To that extent, section 396(7) of the ACJA 2015 is inconsistent with the Constitution, particularly section 290 (1) thereof. Therefore, by operation of section 1(3) of the Constitution, section 396(7) of the ACJA 2015 to the extent of its inconsistency with section 290 (1) of the Constitution, is void.”

All the six other justices that sat at the Full Panel of the court agreed with the leading judgment, a procedural situation that will make a judicial revisit of the decision an uphill task.

The process through which the President of the Court of Appeal issued the permission for Justice Idris’s returning to complete the hearing of the case was initiated by the appellants. For decades, it is the law that the courts cannot be used as an instrument for a person to take advantage of his own illegal act (as it now turned out, as found by the Supreme Court, that the fiat/permission was unlawful). Sodipo v Lemmimkainen (1986) 1 NWLR (Pt. 15) 220 per Aniogulu JSC.

We do not think there is a constitutional breach for a statute to confer on an appellate court the powers of a trial court, or for a statute to confer on a judicial officer of a particular court the powers or functions of judicial officer of another court. It is in the law of this land that judges of the High Court or justices of appellate courts are regularly appointed as judges of tribunals or chairs or members of administrative panels of inquiry.

It has not been argued, as was successfully submitted in this case, that because the person who has the constitutional function to appoint such a judge or justice has only appointed him as such judge of the High Court or justice of the Court of Appeal, and therefore he cannot assume any other function on appointment by another person because that will conflict with the constitutional powers to appoint. In other words, as was stated in the Supreme Court’s judgment, it is the President of the Federal Republic of Nigeria that has the constitutional duty to appoint a judge of the High Court, and so, the president of the Court of Appeal could not by her fiat, appoint a justice of the Court of Appeal as a judge of the High Court.

If this argument is stretched, then a justice of the Supreme Court or of the Court of Appeal or a judge of the High Court, cannot be appointed into another function, including the election tribunals or administrative panels of inquiry because there are different persons who are constitutional or statutorily authorized to appoint a judge or justice, and members of election tribunals or administrative panels of inquiry.

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It is the function of the enabling statute and Practice Directions issued under the statute that panels of election tribunals are appointed from among judges and justices, who are already appointed by the President of the Federal Republic of Nigeria on recommendation of National Judicial Council, and sworn-in in accordance with the Constitution. It is not the same President, on recommendation of the National Judicial Council, that appoints such judges or justices to election tribunals or administrative panels of inquiry.

The point we are making, most respectfully, is that, once the statute confers a judicial function on a person, and in this case, section 396(7) of ACJA to a newly appointed justice of the Court of Appeal for a function that will be performed at the High Court, that judicial officer is for that purpose statutorily authorized to perform the function of the High Court judge. There is nothing in conflict with his position, role and function as the justice of the Court of Appeal.

The same situation is seen in section 16 of the Court of Appeal Act, in which the Court of Appeal is given the powers of the trial court, and thus can exercise all the powers of that court upon hearing an appeal. The Court of Appeal can, under the section, review the evidence, evaluate them and make any orders which the High Court ought to have made. That statutory function has not diminished the constitutional position or status of the justice of that appellate court. See also section 22 of Supreme Court Act that gives similar powers to the justices of the Supreme Court.

To this extent, we see no conflict in the provisions of section 396(7) of ACJA with sections 290 of the 1999 Constitution or any provision of the Constitution. However, as the Supreme Court has ruled, that section is unconstitutional and now struck down. The implication is that several cases that had been concluded by newly elevated justices of the Court of Appeal will have to be reviewed and upturned.

The upheaval implications of this decision to our criminal jurisprudence is profound, and its negative impact will set us back in the task of advancing the much needed purpose of ACJA, which is fair, speedy and effective criminal justice administration in Nigeria.

We proposed any of the two legislative ways forward, that is: (1) To insert similar provision as in section 369(7) of ACJA in the Constitution as a proviso to section 290; (2) To include in the Constitution, which is at the moment under review by the National Assembly, a provision that a judicial officer elevated to a higher court or to another function, should concluded all part-heard matters before taking his oath of office to the new office. Thus, the current case law that upon mere announcement of the elevation of a judge or magistrate, he can no longer perform the function of his former office, will be legislatively overruled.

It is eagerly hoped among the pro-ACJA community that another opportunity will soon arise in which the Supreme Court will have to revisit Udeogu v FRN, and hopefully, overrule itself. As a policy court, the Supreme Court has always strived to uphold jurisprudential guidance that will enhance, rather than limit, public interest and the rule of law.

*Obiagwu(SAN), is National Coordinator, Legal Defence and Assistance Project, LEDAP.

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