“…Supreme Court’s Nullification of Kalu’s Conviction Right But, Bad for Anti-corruption War”

By Alex Enumah

Senior lawyers in the country on Friday applauded the decision of the Supreme Court which set aside the conviction of former governor of Abia State, Senator Orji Kalu, for corruption. A Federal High Court in Lagos had last December sentenced the former governor and his former Finance Director to 12 and 10 years prison terms respectively for embezzling funds belonging to Abia State between 1999 to 2007 when Senator Kalu was governor.

The trial judge who is currently a Justice of the Court of Appeal, following a fiat by the then President of the Court of Appeal, Justice Zainab Bulkachuwa, had returned to the lower court to conclude his trial of Kalu. However delivering judgment in an appeal by Jones Udeogu and Slok Nigeria Limited, a company linked to Kalu, the apex court in a unanimous decision held that the lower court lacked the jurisdiction to try the suit because the trial judge had been elevated to the Court of Appeal. The Supreme Court in the judgment read by Justice Ejembi Eko, subsequently nullified the conviction and sentencing and ordered a fresh trial of the case.

Reacting to the apex court decision senior lawyers in their contributions noted that although the decision of the Supreme Court was in order, it however overshadowed the gains of the Administration of Criminal Justice Act as relates to speedy dispensation of justice. In his response, Mallam Ahmed Raji SAN, while agreeing with the judgment, however said that the Constitution must first be amended to empower elevated judges sit and conclude cases they were handling before promotion.

According to Raji, the idea of allowing elevated high court judges to conclude partly heard matters was not a bad one taking into consideration the congestion in the courts. But it has to be sanctioned by the grundnorm. “The noble lords have spoken and that is the law. If the system wants elevated judges to retain the power to conclude partly heard matters, then the constitution should be amended to that effect. Such cannot be achieved through ordinary statute like Administration of Criminal Justice Act.

“Just like the time limit for determination of election matters could not be achieved by the Electoral Act, the same standard is also applicable”, he said. Another senior lawyer, Dr Kayode Olatoke, said, “The decision of Supreme Court is the correct interpretation of the law and that has been my own view of the position of the law that that aspect of ACJA which allow a Court of Appeal justice to come and sit as a high court judge is unconstitutional and an aberration.

Also reacting, Mr John Baiyeshea, said, “My reaction, first and foremost is that the Judgment of the Supreme Court is correct. But it is a sad and tragic story of how the fight against corruption is being frustrated purely by technical judgment/Justice.

“This case took more than 10years to prosecute, because the accused persons did everything possible to ensure that the case was never successfully prosecuted. They even went as far as the Supreme Court on appeal on preliminary objections just to frustrate the case. The Supreme Court after more than seven years held that his trial should go on and be concluded. It is because of situations like this that the Administration of Criminal Justice Act, made provisions to address such antics”, he said. While arguing that Justice is not a one-way traffic, Mr Baiyeshea said that the case of Kalu was not examined on merit by the Supreme Court.

“And in view of the terrible congestion of cases at the Supreme Court, it is a puzzle that Orji Kalu was able to traverse the very congested Court of Appeal Lagos Division to the Supreme Court in just about 4months or so from his conviction. And having his case concluded with the speed of lightning! “I think Justice in this case is lopsided and/or one-sided. This is because Nigerian people and society also deserve to have criminal cases (particularly bordering on corruption and economic sabotage by few privileged, high profile and politically exposed persons) be determined on merit also within very short time.

“This type of judgment encourages the criminally minded political office holders, and other criminal elements to commit crimes with relish. They take advantage of our porous, permissive and technical legal system, and the nation continues to bleed to death”, he said. He argued that the fresh trial was dead on arrival as the prosecutors, witnesses and even the trial courts have now been frustrated, tired, weary and worn out. He said although the judgment of the Supreme Court was right (on technical ground), it is tantamount to technical Justice. “It would even have been better (Justice), if the Appeal had been heard on merit through the Court of Appeal to the Supreme Court and the convict eventually set free.

“All stakeholders would have heaved a sigh of relief, believing that the case was not frustrated. Meanwhile, corruption will continue to have a field day and a free reign. It’s a setback for Nigeria”, he said. On his part, Mr Dayo Akinlaja SAN argued that, “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.

“It is plain as day and simply incontestable that the judgment of the Supreme Court cannot be faulted. His lordship that gave the judgment of the trial Court was not of the Federal High Court as at the time of the delivery of the judgment in question. That being the case, the judgment was blighted by want of capacity on the part of the judex and, by extension, robbed the Court of jurisdiction.

“It is equally a settled legal position that any statutory provision that is inconsistent with the provisions of the Constitution is null and void to the extent of the inconsistency. On the standpoint of that situation, the provision of the Administration of Criminal Justice Act relied on to issue a fiat to his lordship to deliver the judgment after having been sworn in as a Justice of the Court of Appeal is not compatible with the provision of the Constitution that prescribes in unequivocal terms that the Federal High Court must be presided over by a Judge of that Court.

“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. Also speaking, an Abuja based lawyer, Mr Steve Ekeh argued that the Judge who conducted the trial and conviction of Senator Kalu having been elevated to the Court of Appeal, had no jurisdiction to conclude the trial and pass judgment.

“The scenario would have been different if the judge had concluded trial and had written his judgment but was unable to deliver same before his elevation. If this was the position, he could obtain a fiat from the Court of Appeal to deliver the judgment. In the case of Orji Uzo Kalu, the fiat was given to conclude the trial and deliver judgment. “The judge had no jurisdiction to conclude the trial as he was no longer a judge of the Federal High Court. So there was a technical error, which ocassioned lack of jurisdiction and where a court conducts trial without jurisdiction, its judgment would be null and void and liable to be set aside irrespective of how well the trial is conducted and how sound the judgment”, he said. Mr Ekeh further stated that the order of retrial was in order as the Supreme did not exonerate or discharge and acquit Kalu for the alleged crimes. “He will have his day again in court”, he added.

Culled from Thisday newspaper

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