The chairman of the Presidential Advisory Committee against Corruption (PACAC), Prof. Itse Sagay, and Lagos lawyer, Mr. Femi Falana have expressed dismay at the Supreme Court’s nullification of the conviction of the former governor of Abia State, Mr. Orji Uzor Kalu over N7.1 billion fraud.
Recall that Justice Mohammed Idris had on December 5, 2015 Kalu to 12 years imprisonment for fraud he was alleged to have perpetrated during his tenure as governor of Abia State between 1999 and 2007.
At the time of the conviction, Justice Idris was already a Justice of the Court of Appeal, but returned to the Federal High Court in Lagos to conclude the case.
But in a unanimous judgment of a seven-man panel delivered by Justice Ejembi Eko yesterday, the Supreme Court quashed the entire trial, including the conviction and sentencing on the grounds that Justice Idris’ return from the Court of Appeal bench to the Federal High Court to conclude the trial was unconstitutional.
The court held that the Federal High Court in Lagos, which convicted Kalu, his firm Slok Nigeria Limited and his former aide, Jones Udeogu, lacked jurisdiction to do so.
The court explained that Justice Idris, who conducted the trial, was no longer a judge of the Federal High Court at the time he sat and delivered the judgement.
It further said the constitution does not permit a judge elevated to a higher court to return to a lower court to conclude a part-heard case.
It however ordered a fresh trial for Kalu and his co-defendants.
Justice Eko declared as unconstitutional the provision of Section 396(7) of the Administration of Criminal Justice Act (ACJA) which was relied on to authorise Justice Idris to return to the Federal High Court to conclude the trial.
“Neither the ACJA 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,” said the judge.
Reacting to the judgement, Sagay said no section of the constitution prevents a judge, who was promoted to a higher court, from continuing to hear pending cases in the lower court.
“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.
“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.”
“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,” he said.
Falana, in his reaction said Kalu’s conviction was a demonstration of the Nigerian legal system’s capacity to serve the interest of pampered members of the ruling class.
He said Section 396(7) of ACJA was introduced to stop rampant instances in which criminal cases involving high profile personalities were stalled for a long period due to the elevation of the trial judge to a higher court.
He told The Punch in an interview that the trial of a former managing director of the defunct Intercontinental Bank, Mr. 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.
“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,” he said.
He said 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.
“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,” he added.
For his part, senior lawyer, Mr. Ahmed Raji SAN agreed with the ruling of the Supreme Court.
However, he said the Constitution must first be amended to empower elevated judges sit and conclude cases they were handling before promotion.
He said the idea of allowing elevated high court judges to conclude part-heard matters was not a bad one taking into consideration the congestion in the courts.
“But it has to be sanctioned by the ground norm,” he added.
Another senior lawyer, Mr. Dayo Akinlaja, applauded the Supreme Court describing the ruling as “right.”
“Once a Court lacks the requisite jurisdiction to determine a cause or action, the proceedings thereof would invariably amount to a nullity no matter how well otherwise conducted.
“The net sum of it all is that the Supreme Court is impeccably right with its decision and the order for the trial to start de novo is equally irreproachable on account of the fact that, in the eye of the law, it is like the defendants have never been tried on the charges brought against them,” he said.
Meanwhile, the Economic and Financial Crimes Commission (EFCC) which prosecuted Kalu and his co-defendants described the judgement as “quite unfortunate.”
Spokesman for the commission, Mr. Dele Oyewale, said the agency was prepared for a fresh and immediate trial of the case because its evidences against Kalu and others “are overwhelming.”
“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 trial of the case because its evidences against Kalu and others are overwhelming.
“The corruption charges against Kalu still subsist because the Supreme Court did not acquit him of them. The entire prosecutorial machinery of the EFCC would be launched in a fresh trial where justice is bound to be served in due course,” Oyewale said in a statement.
Meanwhile, Kalu in a statement issued after the court had set him free said the ruling affirmed his right to fair hearing and equal protection of the law.
“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.
“I want to use this moment to thank my family, my colleagues, my friends, my supporters, the people of Abia State, and all Nigerians for their unflinching and unwavering confidence and trust in me through the very testing period. We all know today that their prayers have not been in vain. I also use this opportunity to express my gratitude to the Nigerian Correctional Service for the unalloyed professionalism and sincere humanity extended to me by its staff while I was in their custody.
“Overall, my experience tested and reaffirmed my belief and confidence in our country, Nigeria.
“My case is a true Nigerian story with a bold made-in-Nigeria stamp on it. It is a story of initial injustice that was caught and ultimately corrected. It is a story of restoration. It is a story of how a wrong was righted and how justice and truth prevailed in the end.
“It is a story of the power of hope. My case should teach us all that even though we may not get things right at the first attempt, with patience and dedication, we shall get them right eventually. That is the lesson of my case and that is the lesson of our country – that with dedication and patience, we shall place Nigeria in its rightful place eventually,” he said.
