The Supreme Court Ruling In Senator Uzor Kalu’s Trial: The Boxes Left Unchecked By Destiny Ogedegbe – A Rejoinder. By Christian N. Oti, Esq

I must commend your article with respect to the above subject-matter published on (possiblog.wordpress.com) However, with respect, as attractive as it is, you erred dangerously in law. Ordinarily, I wouldn’t have responded to it but you touched flippantly in my view on the very foundation of our legal jurisprudence in your analysis.

It is also my belief that the justice we seek cannot exist in vacuum. It must be weaved into and according to the legal jurisprudence of the system in place for a State. No matter the sentiments or emotion any lawyer has regarding any decision or action of any arm of government, the question should always be whether the Law was followed?

With these in mind, I shall attempt to address your article under the following issues:

1. Whether the provision of Section 396(7) of ACJA is inconsistent with the constitution of the Federal Republic of Nigeria (hereafter the Constitution)
2. Whether the decision of Honorable Justice M. B. Idris in the said case can stand in law by any stretch of imagination.
3. Whether the constitutional supremacy and Jurisdiction are figments of judicial interpretation.

ISSUE ONE: At the outset, we must reproduce the supremacy and inconsistency provisions of the constitution to see what the grundnorm says in this regard for the purpose of clarity. Section 1(1)(3) reads thus:

• This constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
• 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.

It is further necessary to see the provisions of Section 396(7) of the Administration of Criminal Justice Act, 2015. This is to help examine the purported authority wherein the Honourable Justice acted. It reads thus:

• Notwithstanding the provisions of any other law to the contrary, a judge of the High court who has been elevated to the Court of Appeal shall have a 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.

Now, looking at this provision, some questions come to mind: does the legislature have the power to appoint judges? What is the position of a High court Judge having been elevated to the Court of Appeal? What is the composition of a Federal High Court as in this instance?

Firstly, it must be stated that it is the President that must appoint federal court judges. The constitution provides in Section 250(2) as follows:

The appointment of a person to the office of a Judge of the Federal High Court shall be made by the President on the recommendation of the National Judicial Council.

Clearly, by the enactment of the ACJA provision quoted above, the legislature encroached into the executive power of the President to appoint Judges of the Federal high court, thereby usurping power that it does not have and by so doing violated the principle of separation of powers. The Court in the case in review, per Ejembi Eko, J.S.C., held that Section 396(7) ACJA was an unnecessarily gratuitous legislative interference with, intrusion into or an outright usurpation of the appointing powers of the Executive arm consigned specifically to the President.

Furthermore, the position of a Federal High Court Judge having been elevated to the appellate court is that he clearly ceases to hold office as a High Court Judge and in so far as he is no longer a member of that court, he cannot validly be made to sit in the same court over any matter. Thus, I find it really difficult to see that the learned author believes that the said provision of the ACJA was a valid intervention to cure the mischief of protracted criminal matters.

ISSUE TWO: Flowing from the principles explained in issue one, can the ruling of M. B. Idris, J.C.A., on the 31^st July, 2018 be valid in law. The learned author in his article argued strongly that if the Supreme Court had given section 396(7) ACJA a purposive or intellectual interpretation, it could have upheld the decision. I must remind him that judicial interpretation is not in the realm of academics. Judicial interpretation must be done within the boundary of the particular laws, and that where the wordings of a law are clear, unambiguous and unequivocal, judicial meaning must be given to it and no amount of purposive reading can alter the literal words. You only introduce the mischief or purposive rule of interpretation when the literal meaning is not specific and clear.

The constitution in Section 253 provides for the composition of the Federal High Court to consist of at least one Judge of that court. The operating word here is OF THAT COURT. There is no way the ruling of the Honourable Justice having been elevated to the Court of Appeal can be valid in law. What purposive approach can be used to vary the constitutional words here? The author of the said article misconstrued greatly the tenor of section 253 of the constitution when he submitted that other judges of the Federal High Court can sit alongside the elevated Judge, without invalidating the decision. I must posit unequivocally that the author seem to intend to perform some magic by deleting the other part of the provision. The use of “at least one judge” in the provision is to show the minimum that is expected to complete the needed quorum. However, the wordings of the section went further to add a qualification, to wit; that any of those judge(s) that must sit despite the number(s) must be “of that court”. This I submit is very imperative to the true interpretation of the provision. Thus, the legislative wordings of ACJA cannot do the intended magic of the learned author as well, seeing the clear wordings of the constitution herein. A Judge having been elevated cannot be deemed to be of a particular court. It is this simple.

It is conceded that the constitution was silent as to partly-heard cases but the fact remains that the constitution envisages that at all times and for all intent the Judge in charge of a case must be of the court.

ISSUE THREE: In the said article in focus, the learned author averred that the principle of constitutional supremacy and jurisdiction are figments of judicial interpretation and legal rhetoric. He further stated that there is no place in the constitution where the principle of raising the issue of jurisdiction at any time is enshrined.

I find the submission of the author quite alarming and disdainful of the very foundation of our legal jurisprudence. It appears he allowed himself to be enveloped with emotions than law. Is the learned author feigning ignorance of the copious provision of the supremacy of the constitution as cited above? Or does he not grasp that only statute vest jurisdiction in a court? I refer him to the various provisions of Section 232, 233, 239, 240, 251, 254C, 257, 272 of the constitution that invest jurisdiction to the different courts. It is necessary to state that other statutory provisions give jurisdiction to the court as well. How can anybody aver that these are mere rhetoric?

It is noteworthy that the role of the judiciary is to interpret laws and they must do so in line with statute. The principle that jurisdiction can be raised at anytime even on appeal is merely giving vent to the wordings of statute. It is really otiose to expect this to be in the constitution. There is a reason why each court has its own jurisdiction. It is not a matter of cosmetic surplusage or figment, or howsoever described.

The query of what the intendment or spirit of the constitution is, can be seen by giving a clear meaning to the unambiguous provision of it. It is necessary to point out to the author therein, that the case of Inakoju v. Adeleke (2007) which he cited to portray where the Supreme Court overlooked the provisions of the constitution as to section 188(10) on ouster clause was misconceived by him. It must be clear that the decision merely decided that for the ouster clause to apply, the processes and procedure of removing a governor in the preceding subsections must have been fulfilled. Thus, the court did not violate the constitution, rather it was established.

CONCLUSION AND RECOMMENDATION: It is not enough to critique a work without offering better options. The present author empathize with the learned author and assure him that the worry of the situation is shared by all well meaning Nigerian, but  must advise him to take his own advice of intellectualism in line with the laws of the country and offer recommendations whenever he criticizes a court decision.

What then can be done looking at the slow pace of our criminal justice system viz-a-viz the issue of elevation, dismissal, death or otherwise of judges handling a matter and the effect of trial de novo?

First, it is time for us to take advantage of technologies in our proceedings: The argument against a judge taking over a partly- heard case is that the weighing of evidence and the demeanor of the witnesses will be lost thereby. It is argued that this can be cured with the use of an audio/visual recording that will clearly be used to replay the proceedings thus far for the next judge that will take over such case. It must also be stressed that only a Judge of that court is ordinarily expected to take over partly-heard cases.

Secondly, we can establish special courts for corruption cases as it deals with public wealth: considering the nature of our political system, it will be vital to have a special court where every case bordering on corruption can strictly be dealt with. Consequently, more judges will be appointed to man this court.

Thirdly, the court can treat the effect of such take-over of partly heard cases as a mere irregularity that can be waived: This is especially so when the substance of the case did not prejudice or mislead the defendant. It takes taking the record of proceeding made by the judge on oath while transmitting to the new judge. If the constitution recognizes that a Justice of the Supreme Court or of the Court of Appeal can deliver judgment in a matter he did not hear, I see no reason why a Judge cannot take over a partly heard case and conclude same (see the proviso of section 294(2) of the constitution)

Lastly, we must be specific as to the time a criminal trial must be concluded instead of just a reasonable time. And same must be adhered to strictly. Heavy fines should be imposed on any party that flaunts the timeline prescribed. The number of witnesses should also be specific, to avoid situation where parties just delays the proceeding with unnecessary witnesses.

It calls for emphasis that in filling any gap or seeking to interpret statutory provision, such must be done in line with the clear wordings of the constitution. Lawyers must be quick to protect the constitution against any inconsistency of any other law. It is also clear and worth stating that with the above suggestions, the constitution may not go through the process of amendment.