Why Supreme Court quashed conviction of Orji Kalu, others

Godwin Tsa

The Supreme Court on Friday quashed the sentence and conviction of ex-governor of Abia state, Senator Orji Kalu and Mr. Udeh Udeogu by Justice Mohammed Idris of the Lagos division of the Federal High Court.

Kalu was sentenced to 12 years  and Udeogu, three years in prison for an alleged N7.65 billion fraud. The judgment of the apex court is a fall out of an appeal filed by Udeh Jones Udeogu challenging the constitutionality of section 396(7) of the Administration of Criminal Justice Act (ACJA), which was allowed by the court.

In his judgement, Justice Idris convicted and sentenced the first defendant, Senator Kalu, to five years imprisonment on counts 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11; three years on counts 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33; 12 years on counts 34, 35, 36, 37 and 38 and five years on count 39. All the sentences are to run concurrently meaning he would have been in prison for 12 years from the day of conviction.

The second defendant was convicted and sentenced to three years imprisonment on counts 24, 25, 27, 28, 30, 31, 32 and 10 years on counts 34, 37, 38 and 39.

The sentences were to run concurrently meaning he would have been in jail for 10 years.

Justice Idris further held that Mr Kalu’s company, Slok Nigeria Limited, the third defendant, be wound up and all assets forfeited to the federal government.

But in a unanimous judgment on Friday,  a panel of seven Justices of the Supreme Court set aside the judgment of the Federal High Court as a nullity.

Justice  Ejembi Eko who read the lead judgment held that Justice Mohammed Idris having been elevated to the bench of the Court of Appeal was no longer a Judge of the Federal High Court and therefore acted out of jurisdiction.

The apex court further held that section 396(7) of the Administration of Criminal Justice Act (ACJA), 2015 which allows the President of the Court of Appeal to issue a fiat to Justice Idris to adjudicate on the  case is a nullity as it conflicts with the provisions of the 1999 constitution.

The controversial section 396(7) of ACJA, which was declared a nullity by the Supreme Court reads: “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.”

However, the apex court  held that the fiat issued to  Justice Idris by the Court of Appeal President dated July 2, 2019 pursuant to section 396(7) of the Administration of Criminal Justice Act was unconstitutional.

Justice Eko held that “ the President of the Court of Appeal acted ultra vires her powers when she issued the fiat to Justice Idris to sit as a judge of the Federal High Court. The Federal High Court and the Court of Appeal are established by the Constitution with distinct powers and functions. The President of the Court of Appeal has no powers to assign dual powers to a Justice of the Court of Appeal to meddle in the internal affairs of the  Federal High Court.

“Justice Mohammed Idris having been elevated to the Court of Appeal ceased to be a Judge of the Federal High Court and therefore lacked the jurisdiction to adjudicate on the case. Section 396(7) of ACJA did not give him new powers to perform dual functions. Section  396(7) of ACJA conflicts with section 253 of the constitution which  provides that: ‘The Federal High Court shall be dully constituted if it  consists of at least one judge of that court. It is therefore a nullity.

“The implication is that Justice Idris acted without jurisdiction. It is settled law that jurisdiction is the life wire of adjudication and if a court has no jurisdiction to decide a case, the proceedings remain a nullity ab initio, no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication.

“Accordingly, the judgment delivered on December 5, 2019 I hereby set aside. The case file is to be remitted to the Chief Judge of the Federal High Court to be assigned to another judge for trial de novo. This is because you cannot put something on nothing and expect it to stand as the whole trial was a nullity ab initio.”

In her contribution to the judgment, Justice Amina Augie held that section 396(7) of ACJA “ has no place in our statute books. A Justice of the Court of Appeal cannot go back to the High Court and put up a new cap to preside on cases. The section is inconsistent with the Constitution and is therefore null and void.”

Other Justices on the panel are Justices Mary Odili;  Bode Rodhes-Vivour,  Kudirat Kekere-Ekun, Inyang Okoro and Olukayode Ariwoola.

The appellant had through their counsel, Chief Solo Akuma, SAN; Dr. Anwa Kalu, SAN challenged the jurisdiction of the trial court to adjudicate on the matter.

They argued that Justice Idris who delivered the judgment having been elevated to the bench of the Court of Appeal can no longer sit as a judge of the Federal High Court. They further challenged the constitutionality of section 396(7) of ACJA and urged the court to declare it unconstitutional.