By Henry Ojelu
Reactions to the Supreme Court ruling on Orji Uzor Kalu’s conviction, on Friday, are interesting. A Senior Lecturer in Law described quashing of the 12-year jail term handed the former Governor of Abia State by the lower courts and ordering of retrial as “correct, but unfortunate.”
While a Senior Advocate of Nigeria, SAN, said taking away the discretion of the court will occasion injustice for very serious cases, a rights advocate said the constitution is superior to any other law, including the Administration of Criminal Justice Act, ACJA.
It’s the right decision, unfortunate situation — Ojo
A Senior Law Lecturer at the Lagos State University, LASU, Gbenga Ojo, said the verdict was right even though it has exposed a lacuna in Nigeria’s law.
His words: “It is the right decision, but unfortunate situation. Right because a judge elevated to the Court of Appeal is no longer a member of the High Court. Any decision given by him in respect of a matter before him in the High Court after his elevation is a nullity.
“That was the Supreme Court’s decision in Ogbugbunya V Obi Okudo. Justice Umeneka Agu was elevated to the Supreme Court at the time he read the judgment at the Court of Appeal.
“The judgment was set aside. However, it exposes wide ‘gap’ or ‘short coming’ in our law: after conviction, after trial and the case proved beyond reasonable doubt, he will walk the street and return to the Senate. This is unfortunate.
“Two things are necessary. One, amend the Constitution in terms of Section 397 of ACJL, which allows the judge elevated to the Court of Appeal to read his judgement like Kalu’s case. Two, EFCC should arrest and detain him. Grant him administrative bail and later arraign him in court. It is frustrating though. Justice is rooted in confidence of the people.
“It should not happen again, otherwise people will lose confidence in the judiciary. The Constitution should be altered quickly to avoid a repeat of this unfortunate incident.”
Lessons from judgement— Adegboruwa
Senior lawyer, Ebun Adegboruwa(SAN), in his reactions to Supreme Court ruling on Orji Uzor Kalu, hailed fast-tracking of the case, but said that abolishing stay of proceedings through legislation and taking away the discretion of the court and the right to fair hearing of a defendant, will occasion injustice for very serious cases.
He said the lessons he took in the case are: “When very serious constitutional issues are raised in a matter, it may be good for the trial court to exercise some reasonable caution to await the outcome of the appeal, so long as the appellant is not by that means seeking to prolong the case.
“It is good to fast track the hearing of cases involving serious constitutional matters, so that applications for stay in criminal matters will no longer be a headache for the prosecution.
“There has to be a reasonable balance, between the right to fair hearing of a defendant, in respect of very serious appeals, and the power of the prosecution to have the cause heard expeditiously.
“To abolish stay of proceedings via legislation and taking away the discretion of the court and the right to fair hearing of a defendant, will keep working injustice for very serious cases. There are several cases to be affected by this judgment now. You can imagine the time, money and energy spent in this case. It is the same government that is prohibiting stay of proceedings that will have to conduct the trial de novo, giving lawyers on both sides so much job to do.
“The accelerated hearing of the appeal is commendable, given that many cases are to be affected thereby. When lawyers agree to hear a case expeditiously, justice will be granted by the court in the manner that society desires.”
Apex court acted according to law —CAC
In his reaction to the Supreme Court ruling on Orji Uzor Kalu, the Executive Director of Cadrel Advocacy Centre, Evans Ufeli, said the verdict is on point.
His words: “The Supreme court acted according to law not minding whoever is involved. You see, the issue of jurisdiction is sacred in law and once a court acts without it, any judgement therefrom no matter how brilliantly delivered, must fail. See the case of ISAAC OBIUWEBI V. CENTRAL BANK OF NIGERIA (2011) 7 NWLR PT 465 (SC).
“Jurisdiction is the threshold matter. It is very fundamental as it goes to the competence of the court to hear and determine a suit. It is mandatory that the court takes the issue of jurisdiction very seriously and decline when so convinced that hearing a suit and delivering judgement on same will amount to a nullity.” See BRONIK MOTORS LTD & ANOR V. WEMA BANK LTD 1990 2NWLR PT 31 P172, MADUKOLU V. NKEMDILIM 1962 1 ANLR PT 4 P. 587.
“The above issues are sacrosanct and same, cannot be compromised in law. I am writing this specifically for non-lawyers to understand. Justice Mohammed Idris was elevated to the court of appeal sometime ago and while there the President of the Court of Appeal issued a fiat to him pursuant to Section 369 (7) of the Administration of Criminal Justice Act 2015 to continue the trial of former Governor Orji Uzor Kalu.
“Section 396 (7) of the Administration of Criminal Justice Act says: ‘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 matter pending before him at the time of his elevation and shall conclude the same within a reasonable time; provided that this subsection shall not prevent him from assuming duty as a Justice of the court of appeal’.
“The above section of the Administration of Criminal Justice Act is unconstitutional and this is the fulcrum of the Supreme Court’s decisions in this case. An act of Parliament cannot be using the expression, ‘notwithstanding the provision of any other law to the contrary,’ when the constitution still remains the highest law in the land and has clear provisions of supremacy, subjecting every contrary law to nullity to the extent of their inconsistencies.
“Justice Mohammed Idris acted and convicted former governor Orji Uzor Kalu when his elevation to the Court of Appeal had already robbed him of jurisdiction to continue sitting as a High Court Judge. In the eyes of the law, the moment he was elevated to the Court of Appeal in the hierarchy of courts, his jurisdiction over that matter was extinguished and the Supreme Court has entrenched this position further to say that Section 369 (7) of the Administration of Criminal Justice Act upon which the President of the Court of Appeal issued a fiat to Justice Mohammed to continue the matter is unconstitutional.”