Supreme Court Did Not Declare Section 396(7) Of The ACJA Unconstitutional In Its Recent Decision In Ude Jones Udeogu V FGN & 2Ors. By Yusuf Shoetan Esq.

 1. INTRODUCTION

On the 8^th of May, 2020, the Supreme Court of Nigeria delivered a landmark decision in the case between UDE JONES UDEOGU V FEDERAL REPUBLIC OF NIGERIA & 2ORS (popularly referred to as UZOR KALU case). Expectedly, the theme of the judgement has been misconceived as nullifying the provisions of Section 396(7) of the Administration of Criminal Justice Act, 2015. Our effort in this piece is to demonstrate how this judgement is not an authority for the nullification of that section. Rather, it is a re-iteration of the principle that an act based on a non-existent law is null and void.

2. FACTS

Justice Ejembi Eko of the Supreme Court summed up the material facts in the lead judgement. On the 31^st of October, 2016, ORJI UZOR KALU, SLOK NIGERIA LIMITED and UDE JONES UDEOGU were arraigned before Justice Idris at the Federal High Court, Lagos. While the case was ongoing, Justice Idris was elevated to the Court of Appeal on the 20^th of June 2018. To enable Justice Idris conclude this matter which was already part-heard, the President of the Court of Appeal, issued a ‘FIAT/Permission’ dated 2^nd July, 2018 vide a letter with reference number PCA/S.19/XIV/20. The PCA purportedly acted pursuant to Section 396(7) of a phantom “Criminal Justice Act, 2015”. Justice Idris had until September, 2018 to conclude this corruption matter. This FIAT did not go down well with one of the defendants, UDE JONES UDEOGU who contested the legality of the FIAT, although under the mistaken belief that it was issued under Section 396(7) of the ACJA.

3. THE LAW

Stare decisis is an integral part of our laws. The principle in a nutshell states that the ratio in a case is binding on the court and other inferior courts in cases of similar facts. Determining a ratio is very important when examining the pronouncement of courts in order to avoid misinterpretations which may distort the intentions of the courts. Justice Karibi-Whyte JSC (as he then was) in SAVANNAH BANK OF NIGERIA V. P.A.S.T.A. LTD[1]  gave a useful guide in determining the ratio of a case. He held that;

“In determining the ratio decidendi of a case, it is safer to consider the claim before the court and the issue which the court was called upon to decide. The reason given by the court for deciding the claim before it is the ratio which the court is obliged to follow in subsequent cases. Accordingly, opinions in the judgement which are not material facts, even where relevant to the determination of the case do not constitute part of the ratio decidendi.”

Additionally, Professor Glandville Williams in his time-honoured book, “Learning the Law” opined that the ratio decidendi of a case can be defined as the material fact plus the decision thereon. This definition and the pronouncement by Justice Karibi-Whyte quoted above were cited with wholehearted approval by Justice Nweze of the Supreme Court in WALTER WAGBATSOMA V FRN SC.517/2015.

At this juncture, the relevant question is what are the material facts in this appeal? The crux of the decision of the Supreme Court in this appeal is basically the “FIAT/permission” which was issued by the President of the Court of Appeal pursuant to a non-existent Criminal Justice Act, 2015. The Fiat/Permission was not issued pursuant to 396(7) Administration of Criminal Justice Act 2015 as widely believed. This much was mentioned by Justice Ejembi Eko while delivering the lead judgement. He held thus;

“The parties, particularly the Appellant, seem to think that the President, Court of Appeal on 2^nd July, 2018, issued his FIAT/permission, to Hon. Justice M.B. Idris, JCA, ‘to conclude the part-heard matter: FHC/CR/56/07’ pursuant to and in furtherance of Section 396(7) of the Administration of Criminal Justice Act, 2015 and not Section 396(7) of the non-existent Criminal Justice Act, 2015.”

My Lord thereafter declared the FIAT/Permission a nullity because it was issued pursuant to a non-existent law. He held:

“ The Criminal Justice Act, 2015, under which the President, Court of Appeal issued the FIAT/Permission pursuant to Section 396(7) thereof (as opposed to the Administration of Criminal Justice Act, 2015) does not exist in the corpus juris of the Laws of the Federation of Nigeria, particularly the 2015 edition thereof. Ordinarily, an act done pursuant to, or in furtherance of a non-existent law is itself a nullity. It has no binding effect…” (underlining ours)

To our mind, this is the main decision of the court. Other comments about the legality of the Section 396(7) of the ACJA are mere obiter because they focused on a fact which was not before the court.

4. CONCLUSION

Nowhere in the material facts was it mentioned that the instant FIAT was issued pursuant to Section 396(7) of the ACJA 2015. It is therefore impossible for this case to determine the constitutionality of that section because the ACJA was not mentioned at all in the FIAT. The courts are not known for guesswork. The copious opinions of the Supreme Court Justices on the constitutionality or otherwise of Section 396(7) of the ACJA are at best an indication of what the court would do when the legality of the that section eventually comes before it.

YUSUF SHOETAN ESQ., 07035751461, Khalif.legal@yahoo.com

[1] (1987) 1 SC 198, PP. 278-279

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