I read with much pleasure, my learned friend, Uche Amulu’s commentary and the analysis contained therein, of the recent judgment of the Supreme Court of Nigeria (hereafter, “SCoN”) in the case of Orji Uzor Kalu v. FRN (hereafter “Orji Kalu”) . For purposes of brevity, I will adopt the facts of the case and his summary of the judgment in Orji Kalu as he laid them out. I may however add or proffer an alternative summary, which Mr. Amulu may have not included (for good reasons I believe). I have also read the said Judgment of the SCoN.
The relevant laws to this analysis are mainly (1) the Constitution of the Federal Republic of Nigeria, 1999 (as Amended) which hereafter shall be referenced simply as “the constitution” and (2) the Administration of Criminal Justice Act 2015 (hereafter ACJA).
My review of the SCoN’s judgment is conducted from two main legal perspectives or methods, viz the black- letter or doctrinal method and the socio-legal methods. In acknowledgement of the divergent definitions that these two terms have lent themselves over the years, let me clarify what I mean in reference to the black-letter or doctrinal and the socio-legal methods.
For the purposes of this review, my use of the term “black-letter” method of analysis refers to an analysis or review of the judgment from a strictly legal perspective and on a correctness (as opposed to reasonableness standard). This is a method of analysis that will simply examine the SCoN’s judgment in the light of the “letter-of-the-law”. For that reason, I will simply seek to determine what the SCoN said the law is (viz-a-vis the relevant sections/provisions of the constitution and ACJA) and offer my opinion on whether or not they are correct in that their interpretation the those laws.
On the socio-legal analysis, I will seek to analyse the SCoN’s judgment from a reasonableness standard, taking into account, its impacts to and consequences for such things as:
i. The constitution
ii. Cost of Litigation and Access to Justice
iii. Integrity and Administration of the Criminal Justice system particularly
iv. The integrity and administration of the overall litigation/court systems in general.
In conclusion, I offer some recommendations on how remedy the effects or consequences of the SCoN’s judgment.
THE BLACK-LETTER/CORRECTNESS ANALYSIS
It appears to me, that the central issue on the appeal to the Supreme Court was whether or not the trial Judge, M.B. Idris J (as he then was and now JCA) was a Judge of the Federal High court within the meaning of sections 249 (2) (b), 250, and 253 of the constitution, when he rendered judgment and convicted the defendants in the Orji Kalu case. Framed differently, the appeal was a direct challenge to the validity and constitutionality of section 396 (7) of the ACJA 2015. Again, Mr. Amulu has laid out these provisions in his initial commentary, and I adopt them as laid out for this rejoinder. However, just to put things into perspective, the said section 396(7) of the ACJA gives or (now more accurately) purported to give “a judge of the High Court, who has been elevated to the Court of Appeal . . .dispensation to continue to sit as a high court judge” so as to conclude “any partly-heard criminal matter pending before him at the time of his elevation”.
The undisputed fact in this case was that Idris J, had already subscribed to the oath of office as a Justice of the Court of Appeal at the time of rendering the judgment. Secondly, he received a “fiat” pursuant (purportedly) to the said section 396(7) of the ACJA, from the President of the court of Appeal (PCA) to go back and conclude the said Orji Kalu trial. I supplied the emphasis above for a reason to be addressed shortly.
I have read arguments that the defendants (or at least one of them) in the Orji Kalu case actually sought the dispensation of the PCA upon which Justice Idris returned to conclude the trial and that therefore it was ‘unconscionable” for them to benefit from the irregularity that they had themselves authored. In my opinion, this is of no moment because it is settled law from a long line of decided cases that neither the court nor parties can confer jurisdiction on a court that lacks one, whether by express agreement or by implied conducts.
The Supreme Court determined that Idris (JCA) ”having been elevated to the Court of Appeal, has ceased to be a Judge of the Federal High Court. Accordingly, he had been deprived of whatever jurisdiction he had as a Judge of the Federal High Court” to further adjudicate on the Orji Kalu trial and render judgment on it. Eko (JSC), delivering the unanimous Judgment, further held that section 396(7) of the ACJA was inconsistent with section 290(1) of the 1999 constitution. Applying section 1(3) of the constitution, he declared the said section 396(7) of ACJA void to the extent of its inconsistency.
I do not quite agree with a finding of inconsistency with the constitution, against section 396(7) of ACJA based on section 290(1) of the constitution. However and in any case, saddled with the same task, and on strict application of the black-letter method, I would have arrived at the same conclusion but on the basis of section 253 of the constitution, as opposed to section 290(1) of it. Section 253 of the constitution which established the jurisdiction by of the Federal High Court, states that the court shall be deemed to have been properly constituted “if it consisted of at least one judge of that court”. It follows therefore, again speaking strictly from a black-letter perspective, that at the time of rendering the judgement, M.B. Idris is a not a judge of the Federal High Court. And where once the SCoN has found section 396(7) to be inconsistent with the constitution, his status as a Justice of the Court of Appeal at the time of the judgment renders the said judgment to bereft of jurisdiction.
The question that needs to be considered, but perhaps not on a black-letter consideration of the judgment, is whether two things can be said to in conflict or inconsistent with each other if they are complimentary to each other. This line of thought will be considered in the socio-legal analysis of the judgment.
On a strict application of the principles of jurisdiction as laid down in the seminal case of Madukolu v Nkemdilim, the court in the Orji Kalu case, because it was not “properly constituted” is therefore bereft of jurisdiction , and the effect/consequence of any judgment delivered by a court without jurisdiction is, has always been and may well continue to be, a nullity .
While I may agree with Mr. Amulu in his analysis that “that that section 396(7) of the ACJA [was]enacted by the National Assembly with aim of giving the Federal High Court additional powers to more effectively exercise its jurisdiction”, I do not however believe that they effectively achieved that aim. Firstly, the power to grant dispensation to conclude a trial at the Federal High Court was vested in the President of the Court of Appeal, thereby negating the effects of section 19 (3) & (4) of the Federal High Court which vested the power of administration and assignment of cases in the Chief Judge of the Federal High Court. That, in and of itself alone, is problematic.
On the basis of the foregoing analysis, and having read the full transcript of the Supreme Court’s reason for its decision, this is surely not one of those judgments that you wonder what law exactly is the law applying or how they came to their conclusion. The Supreme Court, having approached its interpretation of the relevant sections of the constitution literally and rigidly (I may add), was entitled to the conclusion that it reached and can therefore, in my opinion, not be faulted on a strict black-letter based analysis of the extant laws.
THE SOCIO-LEGAL/REASONABLENESS ANALYSIS
As we all know, the effects and consequences of laws or judgments go beyond the immediate parties for who they were made/delivered. So much as there may be differing views on what exactly is the grand purpose of law, I don’t think that there may be any assessment or analysis of the purpose of courts that may not, one way or another, include its duty to do justice. Granted that there may not be a generally accepted/acceptable definition of justice, what is not justice is however not as controversial.
A court of law, and more so the Supreme Court that sets the tone of the law for other courts to follow, must always be guided by this primary purpose, as with the rules of law, in approaching its decisions. With respect, I feel like the SCoN, by its decision in the Orji Kalu case, sacrificed substantial justice on the alter of doctrinal affirmation or discipline. I say that because, this case, no matter the way you look at it, turns on constitutional interpretation, on a simple phrase on that constitution (i. e. “a judge of that court” in section 253) and finally turns on a balancing exercise between the competing rights/factors in this case.
As Mr. Amulu rightly noted, the constitution, though clearly states that the Federal High Court is only properly constituted when it has at least “. . . one judge of that court”: who or what ”. . . one judge of that court” means/refers to had not received any prior Judicial interpretation. This was an opportunity for the SCoN to render that interpretation, bearing in mind, the aims, purpose and objectives of the Administration of Criminal Justice Act 2015, as well as other equally poignant factors that will be outlined shortly.
In my opinion, a reasonable approach to interpreting or defining who/what “one judge of that court” means is not the literal rule that the SCoN seems to have adopted here. In the English seminal case of Dupont Steel v Sirs which seems to be the foundational precedent for statutory interpretation for most common law countries, Lord Justice Diplock had this to say about the interpretational role of the courts :
“When Parliament legislates to remedy . . . a defect or a lacuna in the existing law . . . the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it”.
A corresponding Nigerian authority in this regard is the case of Rabiu v State where the SCoN had this to say specifically about constitutional interpretation :
“In interpretation of the Constitution, mere technical rules of interpretation are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the constitution Where the question is whether the constitution has used an expression in the wider or narrow sense, the court should whenever possible and in response to the demands of justice, lean to the broader interpretation unless . . . narrower the interpretation would best carry out the object and purpose of the constitution”
Also, in AG Lagos State v. Eko Hotels Ltd & Anor, the SCoN restated this position when it held that :
“ . . . where the meaning [of the Constitution] is not directly obvious on the face of the language, the court will investigate the intention behind the use of the language and come out with an interpretation or construction that best fits the apparently hidden intention”.
From the purpose of ACJA 2015, it was clear that it set out to cure some defects/mischiefs in the administration of criminal justice. Its purpose was said to promote :
“efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime and protection of the rights and interests of the suspect, the defendant, and the victim”.
Applying these authorities, I will submit that the phrase “one judge of that court” does not immediately lend itself to a clear and unambiguous meaning, especially when viewed in the light of said section 396(7) of ACJA, which until this judgment, was a valid law. It was therefore wrong (in the reasonableness standard) to have approached the interpretation from a literal perspective. It is my opinion, that the SCoN, should have approached their interpretation of both section 290(1) and 253 of the constitution in such a manner that would not defeat the central purpose of ACJA or metastasise the mischief or defect (viz unreasonably long periods of trial) that the said section had intended to cure/remedy. By its interpretation, I argue that the Supreme Court has rather than “save” the constitution (as many commentators were quick to assert), further endangered the constitution and the overall administration of Justice in the following ways:
Hampers the Actualization Fair Trial Within Reasonable Time and other Fundamental Rights
Section 37 of the constitution guarantees “fair hearing within a reasonable time” in the “determination of . . . civil rights and obligations” of all citizens. This is a right that is more on paper than attainable for most Nigerians encountering the criminal justice system. With no pun intended, Eko (JSC), had conducted a review of the instant section 396 of ACJA, particularly its subsection 2, and acknowledged that that section, as well as section 395(2) of ACJA and section 36(1) of the Constitution are “all about . . . speedy trial” .
It will sadly be the case, following this judgment, that criminal trials will continue to take longer (double the time) whenever the instance such as was the case in Orji Kalu arises where the trial Judge is elevated to the Court of Appeal. The aspect of this that undermines the fairness of such trial is in the case of a less wealthy defendant (or complainant). Assuming that the defendants in this case were not a former Governor with the financial wherewithal to prosecute his defence to whatever length required. The implication for a less wealthy defendant will be a doubling in expenditure, which could hamper the quality of representation wherein such defendant is no longer able to afford the services of a good/senior lawyer and is then forced to higher probably a new wig. On the reverse, the opponent is the Federal (or State) government, with ‘unlimited’ resources.
When considered further in the light of the fact that the prosecution viz-a-viz the government (and not the defendant) would have caused the elevation of the Judge, it becomes even more unconscionable and unfair that this would be the legal principle. Situate this within the context of malicious politically-motivated prosecutions that we all know, go on in Nigeria, then you will understand why this decision could very easily become a tool for oppression and persecution more than anything else; whereby defendants are arraigned on trumped-up charges, and on the eve of their acquittal, the trial charge is elevated to the court of Appeal so as to start their ordeal afresh.
The impact of this on personal liberty is best appreciated when liberty is viewed beyond the scope of physical liberty . Anyone who has been subject or part of litigation (whether criminal or civil) will understand the emotional and mental toll it takes on the participants. Recall that sometimes, the defendants may be on onerous bail conditions that places severe restrictions to a lot of things in their lives, including movement (travelling abroad is the most common). The Supreme Court itself agreed this much when it held that seizure of international passport of a citizen amounted to an incursion into that citizen’s freedom of movement in Director of SSS v Olisa Agbakoba .
On the basis of these analysis, I will adopt the words of the Supreme Court itself in Rabiu (supra) to submit that by this Judgment in Orji Kalu, it has defeated “the principles of government enshrined in the constitution” a la fair trial and within a reasonable time, liberty and freedom of movement.
Increases the Cost of Conducting Litigation and thereby Undermines Access to Justice
As I noted earlier, the implications of this judgment go beyond the immediate defendants and also beyond the prism of criminal Law system. In a country like ours where the justice system and the judiciary itself are known to be susceptible to influence or manipulations, elevation of trial judges could be the next tactics for obstructing justice and frustrating poorer litigants from accessing the individual justices in their case.
Imagine an influential defendant or plaintiff (including government or a government agency) who knows that his or her case is weak (whether criminal or civil), and just influences the elevation of the trial judge on the eve of judgment. Think about the proverbial case of the poor widow and the rich/influential man; where the poor widow strives with the last of her possession to try to reclaim a piece of land from this bullyish rich/influential man, and after about 5 years of trial, whether by the making of the rich man or not, the Judge is elevated to the court of appeal on the eve of rendering judgment. By this time, the widow is more probable than not to have run out of resources and may not be able to finance a whole new trial as a result of this.
On the basis of this Orji Kalu judgment, that widow, as with any other litigant that finds themselves in such similar situation, has had their access to justice practically undermined at best, if not totally denied.
Undermines the Integrity of Criminal Trials and Its Investigations
Cases such as the Orji Kalu case is one which perhaps the evidence is not time sensitive. However, there are trials and criminal investigations that its evidence and the underlying investigation may be best reliable in shorter periods of time (rape may be one of them). With this judgment and the consequence thereof a la trial de novo, this legal principle may have only contributed to denying the victims justice for no error or wrongdoing of their own.
Undermines the Integrity of Litigations Generally
One scenario by which this point can be illustrated is with our Election Petition (EP) cases. The constitution as we know, stipulates that the whole trial in EP cases must be concluded within 180 days. I would not think it is beyond what a desperate government in power could to to frustrate any given election petition matter in which it fears might not be favourable to it, by causing the elevation of a member of such tribunal on the eve of concluding the matter so as to begin a new hearing, by which the 180 days may either completely elapse, or no longer be enough to take the matter up till the last appellate court for review.
On the basis of these socio-legal considerations, I will submit that the decision of the Supreme Court in the Orji Kalu case is impeachable on a reasonableness standard.
THE WAY FORWARD
It still remains the duty and obligation of the legislature to make/amend laws. Truth remains that if the legislature had done its duty thoroughly and properly with respect to the vexatious section 396(7) of ACJA, the Supreme Court will have no issue giving effect to it.
Having said that, I am of the strong view that the durable and sustainable cure to this defect in the ACJA is a constitutional amendment, that would:
a. permit Justices of the Court of Appeal to serve as Judges of the respective High Courts from where they have been elevated to the court of appeal, on an agreement/arrangement between the President of the Court of Appeal and the Chief Judge of that High court, for the purpose of concluding “partly-heard” matters in the interest of Justice
b. Alternatively, ensures that High Court Judges elevated to the Court of Appeal may not subscribe to the oath of office as Justices of the court of Appeal, to sustain their jurisdiction as High Court Judges, until such a time that they have concluded “partly-heard” and “imminently-ending” trials pending before them at the High Court. As an incentive, this could be done so that for the purposes of their rights and privileges as Justices of Court of Appeal, their time in office as JCAs would start counting at the date of their appointment as opposed to the date they actually subscribed to the oath, which could be a year later due to delays in concluding cases at the High Court.
I am of the view that achieving a speedier dispensation or administration of our justice system is fundamental to sustaining both its integrity and functionality, as well as restoring the diminished confidence of the public in the system. I am tempted to say that had the Supreme Court ever cared about these germane factors, it is difficult to see how they could come up with their interpretation and consequential judgment in the Orji Kalu case. As such, the necessary amendments to remedy the pitfalls of the Orji Kalu judgment ought to be done and very quickly too.
Ikenna Aniekwe writes from Toronto, Canada and apologises in advance to anyone for finds the length of this review unusually long.
Profile of the Writer
Ikenna Aniekwe holds a Bachelor of Engineering degree (Elect/Elect – Power Option) from Nnamdi Azikiwe University, Awka Nigeria; an LLB (Summer cum Laude) from the University of the West of England, Bristol UK, BL from the Nigerian Law School and most recently, an LLM in International Business and Human Rights Law (research) from the prestigious Osgoode Hall Law School of York University, Toronto Canada. He is currently undergoing the Law Licensing processes and hopes to be called to the Canadian Bar in 2021.
Ikenna is also a Senior Associate at NICCOM LLP (www.niccomllp.com) where he brings his wide breadth of experience into bear in advising on the firm’s most remarkable works.
Prior to his sojourn into Law, Ikenna was (and still retains a substantial interest as) a renowned filmmaker with skills in screenwriting, Directing and Producing with over 50 Nollywood Film titles to his credit.
He also has a hobby and a side career in football, with a certification and license from the Footballer Association of England and Wales in Adult football coaching. He is also a member of the Nigerian Referees Association for over a decade, a registered member of the Referees Association of England and Wales (Non-active) and of the Canadian Soccer Referees Association.
Ikenna is an avid researcher of law with a broad interest in International Law and Human Rights, particularly the effects of International Business norms and practices on Human Rights in the Global South.