By Ogbu, Blessing Ekpere Esq.
On Friday, the 8th of May, 2020, the Supreme Court delivered an epochal judgment nullifying the judgment of the trial court which convicted the former Governor of Abia State and Senator representing Abia North in the Senate, His Excellency, Senator Orji Uzor Kalu. Well, the judgment is not epochal in the strict sense of the word: before today, the revered Honourable Justice Philip Nnaemeka-Agu, JSC had returned, in 1977, to the Anambra State High Court from whence he was elevated to the Court of Appeal to conclude a part-heard matter he has trying before his elevation to the bench of the Court of Appeal.
In a landmark decision in the locus classicus of Ogbuanyinya & 5 Ors. v. Obi Okudo (1979) 9 S.C. 32 the Supreme Court held that the judgment of the trial court delivered by the Honourable Justice Nnaemeka-Agu JCA (as he then was) was null, void and of no effect because, at the time he delivered the said judgment, he was no longer a Judge of the Anambra State High Court, having been appointed to the Federal Court of Appeal some time in 1977. In Our Line Ltd. V. S.C.C. (Nig.) Ltd. (2009) 17 NWLR (PT. 1170) 382, the Supreme Court set aside the judgment of the High Court of Anambra State which Anthony Iguh JSC delivered on the 20th of July, 1993.
At the time he delivered the judgment, Anthony Iguh JSC, who was handling the matter as the Chief Judge of Anambra State, had been elevated to the Supreme Court. The Supreme Court, in discountenancing his argument that he had not been sworn in as a Justice of the Supreme Court at the time he delivered the judgment, held that he lost the jurisdiction to deliver judgment in the case having been issued his letter of appointment as a Justice of the Supreme Court before he delivered the judgment in issue.
The judgment of the Supreme Court in the Kalu case is, however, epochal in the broad sense of the word because it is the first judgment of the apex Court on this subject delivered after the enactment of the Administration of Criminal Justice Act 2015 (hereinafter referred to as the ACJA 2015). It is epochal because it will provide a direction on the fate of similar cases pending before the Court of Appeal and the Supreme Court today.
The Supreme Court, in setting aside the conviction of Senator Kalu, held that judgment of the trial court was delivered without jurisdiction and in breach of the Appellant’s right to fair hearing. Shocking as this judgment may be considering that the trial lasted for twelve years, it is important to state for the records that the judgment did not derive its validity from the narrow rules of technical justice. Far from the insinuations of members of the public, including lawyers, that the judgment was technical justice, this judgment was founded on substantive justice. The judgment was a product of substantive justice for two reasons: first, the judgment touched on the fundamental requirement of jurisdiction; and, second, the judgment raised the serious question of supremacy of the constitution.
Jurisdiction is the core of every judicial proceeding in a court or tribunal established by the constitution or an Act of Parliament. Jurisdiction is so fundamental that it can be raised at anytime in the course of the proceeding. In fact, it can be raised on appeal for the first time. Jurisdiction, according to Black’s Law Dictionary (6th edition) is the power of the court to decide a matter in controversy and presupposes the existence of a duly constituted court with control over the subject matter. It is the power of the court to inquire into the facts before it, apply the law to the facts, evaluate the evidence adduced by the parties before it, make decisions after a proper application of the law to the facts and considered evaluation of the evidence before it and deliver its judgment.
It is trite that a proceeding conducted without jurisdiction goes to no moment, notwithstanding that the proceeding was beautifully conducted. Jurisdiction has three components: composition and competency of the court, subject-matter of the case and procedural regularity. These three must exist before a court can be said to have jurisdiction.
In the celebrated locus classicus on jurisdiction, Madukolu v. Nkemdilim (1962) 2 SCNLR 341, the Federal Supreme Court per Vahe Bairamian FJ held that:
“…I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when; (1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and; (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3) the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.“
Since then, the principles enunciated in this case have guided the courts in the determination of questions of jurisdiction.
The judgment of the Supreme Court is valid because it touches on questions of constitutional law. Section 6(1) of the CFRN 1999 as amended provides that “the judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. Subsection 5 enumerates the courts as the Supreme Court, the Court of Appeal, the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, the Sharia Court of Appeal of the Federal Capital Territory, the Customary Court of Appeal of the Federal Capital Territory, the High Court of a State, the Sharia Court of Appeal of a State, the Customary Court of Appeal of a State and such courts or tribunals that may be established by an Act of Parliament or a Law of the House of Assembly of a State.
The relevant sections of the constitution, which are, sections 230 – 284, explicitly provides for the powers and composition of each of the Courts established under the Constitution. These courts, according to section 36(1) of the CFRN 1999 as amended, must be constituted in such manner as to secure their independence and impartiality. The implication of these provisions is that a judicial officer of one of the courts established therein, having subscribed to the oath of office and oath of allegiance relevant to that court pursuant to section 290 of the Constitution, is precluded from sitting in another Court established therein to hear and determine matters thereat.
Doing so would go against the first principle of jurisdiction laid down in Madukolu v Nkemdilim, to wit: competency of the judex and composition of the Court. It also infringes on the right to fair hearing of the parties before it as its composition does not guarantee independence and impartiality. And, there is the key issue of signature which is one of the key elements of a valid judgment under section 294(1) of the CFRN 1999 as amended. As the Learned Silk, Adegboyega Awomolo SAN aptly captured it in his discourse on the subject, ” how would the Justice sign the judgment? If he signs as ‘a judge of the Federal High Court,’ he lies; and if he signs as a ‘Justice of the Court of Appeal’, it is unlawful. How then does he sign?”
The problem, therefore, revolves round the provision of section 396(7) of the ACJA 2015. The section provides that “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.”
Section 396 (7) of the ACJA 2015 which Justice M.B. Idris relied on to return to conclude the part-tried case and deliver the judgment therein is an Act of Parliament which is inconsistent with the express provisions of the Constitution relating to the composition of the courts established under the constitution. Section 1 (3) of the CFRN 1999 as amended provides that “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.” The Supreme Court, in Oloyede Ishola V. Memudu Ajiboye (1994) 7-8 SCNJ 1 528, declared 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”.
From the foregoing, therefore, the judgment of the Supreme Court is a sound and valid judgment which conforms to all the rules of substantive justice. The culprit here is the Legislature. In its enactment of the ACJA 2015, the National Assembly included a number of provisions which tore at the fabrics of constitutional supremacy with visceral brutality. One of such provision is section 306 which provides that application for stay of proceedings shall not be entertained in criminal trials. This is a grave violation of the constitutional guarantee of the right of fair hearing of the parties in a trial before a court or Tribunal established under the constitution or an Act of Parliament. It takes away the right of the parties to appeal against interlocutory decision of the judex.
Another is section 396 (7) which the Supreme Court struck down in the Kalu case for being inconsistent with the provisions of the constitution and, therefore, null, void and of no effect whatsoever. The Supreme Court has been consistent in guarding jealously the powers of the court and the supremacy of the constitution. In Ogaga v. Umukoro (2011) 18 NWLR (Pt. 1279) 924, for instance, Mary Ukaego Peter-Odili JSC quoting with approval the decision of the Supreme Court per Iguh, JSC in Benin Rubber Producers Cooperative Marketing Union Ltd v. Ojo (1997) 9 NWLR (Pt. 521) 388 held that “all existing laws and/or any provision in a state law which are not in conformity or tend to derogate from the powers of such courts shall to the extent of such inconsistency, be void.”
If the National Assembly was minded to expedite criminal trials in Nigeria and save the time that is lost when trials commence de novo, it should have constitutionalised the provision of Section 396 (7) of the ACJA 2015 and amended the relevant provisions of the constitution accordingly. The ACJA 2015, like many legislations enacted by the Parliament since Nigeria ‘ s return to civil rule in 1999, is nothing short of a product of legislative indolence.
The National Assembly should be progressive and proactive in its constitutional duty. This constitutional duty, as provided for in section 4 of the CFRN 1999 as amended, is to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution. This duty presupposes the enactment of laws which create the necessary synergy between the government and the citizens. So far, all successful constitutional amendments, apart from the tokenism of the Third Alteration which constitutionalised the National Industrial Court, have been to improve the conditions of the political elites.
Ogbu, Blessing Ekpere
It was easy for the National Assembly to pass the First Alteration which provides for the financial independence of the Independent National Electoral Commission and the National Assembly, the Second Alteration which provides for new timelines for the conduct of national elections, and the Fourth Alteration to the Constitution which relates to the new age for qualification for political offices, the funding of the Houses of Assembly of States directly from the Consolidated Revenue Fund of the State, the time within which to hear and determine pre-election and post – election matters, and provides sufficient time to INEC to conduct bye-election and provide grounds for de-registration of political parties and makes provision for the disqualification of a person who was sworn in as President or Governor to complete the term of the elected President or Governor from being elected to the same office for more than a single term.
Yet, it is always difficult for the National Assembly to amend constitutional provisions which could have made administration of justice easy, make the social and economic rights in Chapter II of the Constitution justiciable, strengthen the protection of the fundamental rights of the citizens guaranteed in Chapter IV of the Constitution so as to prevent the rapacious encroachment of the executive and the legislature on this protected territory, and improve the lives of ordinary Nigerians. It seems the entire legislative apparatus of the State exists solely to satisfy the cravings of the political elites. Nigerians should rise up, reject legislative tokenism and demand competent and citizen-centred representation from the members of the National Assembly.
Still on other matters arising…
Some members of the public are confused as to the effect of the judgment of the Supreme Court on the status of Senator Kalu. We submit that the orders made by the Supreme Court are clear. First, the judgment of the trial court was set aside for being one without jurisdiction. What that means in effect is that the judgment of the trial court was null, void and of no effect whatsoever. In the eyes of the law there was no judgment. Second, the Supreme Court returned the case to the trial court for a retrial. That means the case will commence de novo.
On whether Kalu can rely on the defence of autrefois convict provided for in section 36(9) of the CFRN 1999 as amended, it is submitted here that since there is no valid and subsisting judgment in the first place, that defence cannot avail Kalu. By ordering a trial de novo, Kalu is deemed in the eyes of the law not to have been tried at all. Technically, he is not an ex – convict. He cannot therefore rely on section 36(9) to quash his retrial. What is more? It is the Supreme Court that ordered the retrial.
Ogbu, Blessing Ekpere, Esq. a legal practitioner, writes in from Abuja, and can be reached via: sir_ideology@yahoo.com