By Israel Olawunmi
On Friday, 8th of May, 2020, the Supreme Court quashed the sentence 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. The accused persons were sentenced to twelve and three years in prison on allegations of a N7.65 billion fraud.
The judgment of the Supreme court did stem out of an appeal filed by the accused persons challenging the constitutionality of section 396(7) of the Administration of Criminal Justice Act (ACJA). Consequent to this, the Supreme Court in a unanimous judgment by a seven man panel set aside the judgment of the Federal High Court as a nullity.
Eko JSC, who delivered 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 the decision he gave thereto was one on want of jurisdiction, hence a nullity. Furthermore, 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 of the Federal Republic of Nigeria (as amended). 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.
This decision has since been greeted with mixed reactions, as many a person feel, the accused persons in this case actually applied for the recall of Justice Idris to adjudicate on the matter from the Court of Appeal, and should not be challenging same, solely because it didn’t tilt in their favour. Since same amounts to”approbating and reprobating, and it is trite that , “allegans contraria non post andienudus” (a person cannot be allowed to blow hot and cold with regards to the same transaction).Followed by some other reasons as it pertains to the case, especially the clog created by the doctrine of constitutional supremacy.
Coming back to this discourse, as to the constitutionality of Section 396(7) ACJA. The section in dispute 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 partly heard criminal matter pending before him at the time of his elevation, and shall conclude the same within a reasonable time, provided that this section shall not prevent him from assuming duty as a Justice of a Court of Appeal.”
The purport of the above provision, is that a Justice of the Court of Appeal, upon elevation from the high court, can adjudicate on cases he partly heard whilst a judge of the high court even upon elevation. Hence, at the same time the Justice, maintains dual appointments and can exercise dual judicial powers in two different courts.
And this begs the question as to the constitutionality of this statutory provision as to this dual status. For purposes of emphasis and clarity, S 494 of ACJA defines a “part heard criminal matter”, as a trial where the prosecution has closed his case.
Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria, equally provides that:
“If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and other law shall to the extent of the inconsistency be void.”
It cannot be overemphasized, that the Constitution is the principal organic law, and any law that fails its litmus test shall be declared null and void.
The courts in a litany of cases have upheld the doctrine of constitutional supremacy especially in a constitutional democracy as ours. In Ibidokun v Adaralode  23 WRN 86 SC, the court held that section 41 of the Land Use Act 1978 which purports to exclude the jurisdiction of the high court of a state as regards land matters in rural areas, conflicts with S 272 of the 1999 Constitution, hence, null and void.
It is noteworthy that, the Federal High Court and the Court of Appeal are albeit, established by the Constitution, they are imbued with distinct powers and functions.The composition of both courts equally differ.
Section 253 of the 1999 Constitution provides that: “The Federal High Court shall be dully constituted if it consists of at least one judge of that court.”
The intendment of the above provision, is that no judge of any other court, be it of coordinate or superior jurisdiction , can constitutionally exercise the powers provided for in S 253 of the Constitution, unless this section is however, amended, as the Constitution did use “judge of that court”
For the purpose of clarity, judicial officers of the Federal High Court are referred to as “judges”, whilst judicial officers of the court of appeal as ” justices of the court of appeal “. It is safe to concede that the usage of the phrase, ” judge of that court ” by the draftsmen of the constitution is a deliberate one.
It is noteworthy that, in interpreting any provision of the constitution, such must not be read in solitude of other provisions, but a community reading so as to reflect the intendment of the Constitution. In Nafiu Rabiu v State (1980) 8-11 SC 130 at 148 -149, Udo Udoma JSC held inter alia that the constitution must be construed so as not to defeat its obvious ends. Furthermore, Obaseki JSC in AG Bendel v AGF (1982) 3 NCLR 62, held that in interpreting the constitution, effect should be given to every word, and no constitutional provision should be construed so as to defeat its evident purpose.
Another germane issue, this may bring is the issue of jurisdiction. In Obeta v Okpe(1996) 9 NWLR (Pt 473) 411, the court held that jurisdiction is the vires of a court to come into a matter before it. Jurisdiction is the oxygen and life wire of any adjudication. Where a court is in want of jurisdiction, its decision ends as a nullity, no matter how well conducted and decided . Any objection on jurisdiction touches on the competence and legality of the court to entertain the matter in question.
In the locus classicus case of Maduklou v Nkemdili(1962) 2 SCNLR 341 the court held that to answer the question as to jurisdiction of a court, one of the conditions to fulfill is that, the court must be duly composed as to its members and qualifications.
Bearing in mind Section 253 of the Constitution, one may be forced to ask if a Judge of the Federal High Court presiding over a criminal trial has the jurisdiction to continue the hearing of the matter after he has been elevated to the Court of Appeal as a Justice. The answer is unarguably, flowing from the aforementioned provision one in dissension? The answer is a “no”. Hence, a disqualification to this end. One may even ask, in what capacity will he be signing the judgment, is it as a judge of the federal high court or as a justice of the court of appeal?. The answer isn’t as palatable.
Furthermore, upon subscribing to the oath of office as a Justice of the Court of Appeal, Justice Idris or any Justice of the Court of Appeal captured by S 396(7) ACJA have their oaths as judges of the federal high court thrown in the bin of extinction, as same is now dormant in law, hence, cannot function in two courts.
It is pertinent to add at this point that S 3(2) of the Court of Appeal Act 2010 provides that:
“The President shall rank equal to a Justice of the Supreme Court and the other Justices of the Court of Appeal rank next to the Justices of the Supreme Court and equal to the Chief Judge of the Federal High Court”
From the above provision, even the idea of a justice of the court of appeal bearing in mind the status and rank, coming down to the lower court to put up a new cap and preside on matters. It’s arguably somewhat, a grotesque, as it makes an open mockery of the justice, bearing in mind his rank and status, as provided for in the Court of Appeal Act.
It is noteworthy that the Supreme Court in Uzor Kalu’s case made no pronouncement on his guilt or otherwise. It only set aside the conviction by the trial court, and, ordered for a trial de novo (the case to be tried anew by the trial court by a new judge of the trial court), since there was an alteration in the composition of the lower court in this case. In Gabriel Iyela v Commissioner of Police (1969) 6. U. I. L. R. 169, at that time, the Magistrate sentenced the accused in Kaduna, he had been transferred to another state. He however, came down and delivered the judgment. The judgment was held to be null and void, since he had vacated office.
On a conclusive note, the decision of the Supreme Court in this case isnt a new one. The Federal High Court itself, in Federal Republic of Nigeria v Kenneth Iwueke Suit No/FHC/ABJ/CR/ 85/2009, delivered on the 25th of January, 2019 declared the provision unconstitutional.
And it is with no pretension that Section 396(7) ACJA aims to effect speedy trials, because we cannot paper over the cracks that delayed trials or trial de novo may come with, they have their attendant cons, we can’t play ostrich games about them. Cons such as the expensive nature of public prosecution, deterioration of human memory, the likelihood of witness(es) dying or being unavoidably absent for one reason or the other , before the conclusion of , grown disinterest in continuing as witnesses, thanks the “monotonous” nature of the trial etc.
The intention of Section 396(7) ACJA is noble and laudable, but the reality is that, the Constitution is clear and supreme. In Ishola v Ajiboye( 1994) 7-8 SCNJ 1, it was held that:
“The constitution is supreme not only when another law is inconsistent with it but also when another law seeks to compete with it in an area already covered by the constitution”.