In what the Acting Chairman of the Economic and Financial Crimes Commission described as a ‘Technical Ambush’, the Apex Court on May 8, 2020, delivered judgement in the appeal of Ude Jones Udeogu, one of the co-Defendants of former Governor of Abia State, Senator Orji Uzor Kalu, allowing the appeal on the ground that Section 396(7) of the ACJA which allows an elevated High Court Judge to go back to the court below to complete part-heard criminal matters, is unconstitutional. Dr Mike Ozekhome, SAN, Femi Falana, SAN, Uche Wigwe, and Chino Edmund Obiagwu, SAN dissect the judgement of the Apex Court, which in some quarters is seen as being controversial and bad for Nigerian jurisprudence
Legal Implications of the
Nullification of Udeogu’s
Conviction and Orji Kalu
Dr Mike Ozekhome OFR, SAN
On Friday, 8th May, 2020 Supreme Court of Nigeria nullified and set aside “the judgement of the Court of Appeal delivered on 24th April, 2019 as it affected Ude Jones Udeogu only. It was silent on Orji Uzor Kalu.It remitted the case back to the Chief Judge of the Federal High Court (FHC) for “reassignment to another Judge of the FHC, for trial de novo”. Orji Uzor Kalu has not been released, as was done Udeogu. The Nigerian Correctional Service (NCS), a new and better name for the Nigerian Prisons Service, argued that Kalu was not affected by the judgement of the Supreme Court. I humbly disagree with this position, on grounds of law and judicial precedents.
Nigeria’s System of Government
Nigeria operates a constitutional democracy, where our laws, conducts, actions and inactions,are governed by due process and rule of law, as against rule of the thumb. As held by the Supreme Court in GARBA v FEDERAL CIVIL SERVICE COMMISSION & ANOR (1988) LPELR-1304 (SC):
“The rule of law knows no fear, it is never cowed down; it can only be silenced….In Governor of Lagos State v Ojukwu (1986)1 NWLR (Pt. 18) 621, this court said fully, per Obaseki, JSC, on the essence of the rule of law :”Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the State, it is the duty of the government to allow the law to take its course, or allow the legal and judicial process to run its full course”.
As also held in THE MILITARY GOVERNOR OF LAGOS STATE & ORS. v OJUKWU & ANOR, The Nigerian Constitution is founded on the rule of law, the primary meaning of which is that, every thing must be done according to law. It means also that, government should be conducted within the frame-work of recognised rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight met wand of law, as opposed to the uncertain and crooked cord of discretion’ “. See also OMATSEYE v FRN (2017) LPELR-42719(CA); EKANEM v AKPAN & ORS (2018) LPELR-44036 (CA).
Law and Morality
Many people mistake law for morality. Laws are rules that a country mandates its citizens to follow compulsorily, for the purpose of maintaining law and order and regulating the entire society. Morality, on the other hand, concerns people’s beliefs which border on their notion of right and wrong, or good and bad behaviour. Sanctions are imposed against those who infringe on the law.The law can also be changed, by the Legislature. On the contrary, morality cannot be deliberately changed “just like that”. It evolves slowly, and it is a society, not law, that creates its own morality, which is usually more flexible and malleable. Laws and morals do not therefore, mean the same thing. They are incongruous. What is moral may be illegal, and what is legal may be immoral. For example, some religions and societies accept as moral, the marriage of a man to two or more wives. But, this is considered illegal by the law against bigamy (Section 370, Criminal Code), when it involves marriage under the Marriage Act, Cap M6, LFN,2004. As another example, a poor hungry woman may rush to a bread seller, snatch a loaf of bread and run home to feed her hungry children. This may be considered moral – because it was designed to save her dying children, but, it is illegal. It is stealing, pure and simple.
As an opposite example, a court may discharge and acquit a big-time politician or a very wealthy business mogul accused of stealing billions of naira, based on non-availability of evidence to prove the case “beyond reasonable doubt” as prescribed by the Constitution and Section 135(1) of the Evidence Act 2011. Such a discharge and acquittal may be considered immoral, by an angry public. But, the judgement and the findings of the trial Judge based on the facts and law applicable to the case, are legal. See EKPO v INEC & ORS (2013) LPELR-20359 (CA); UCHE v STATE (2015) LPELR-24693 (SC).
The Holy Bible,Exodus 20:13; Deuteronomy 5:17; Romans 13:9; Matthew 5:21; and the Holy Quran, Surah Al-Maeda, verse 32 and Surah Al-Israh, verse 33 provide that: “thou shall not kill”.
Murder is immoral.w It is also illegal (Section 316 of the Criminal Code). However, insanity (Section 28), and self defence (Section 287) completely exonerate a murderer; provocation (Section 283); accident (Section 24) and mistake (Section 25), also downgrade murder to manslaughter.
The Facts of the Orji Kalu/Udeogu Case On 31st October, 2016, Orji Uzor Kalu, Ude Jones Udeogu and Slock Nig.Ltd, were arraigned before the FHC, Lagos. 19 witnesses testified for the Prosecution, with several exhibits tendered.
On 28th May, 2019, the Appellant filed a no-case submission, which the Respondent opposed on 17th July, 2018. In the meantime, the trial Judge, Hon.Justice M.B. Idris, had taken his oath of office as a Justice of the Court of Appeal on 22nd June, 2019, a position he was elevated to, two days earlier.
On 2nd July, 2018, the then President of the Court of Appeal, Hon Justice Zainab Bulkachuwa, JCA (as she then was) issued Justice Idris a fiat, purportedly under Section 396(7) of the Administration of Criminal Justice Act (ACJA), to continue and conclude the matter “before the end of September, 2018”. Section 396(7) allows a “Judge of the High Court who has been elevated to the Court of Appeal” (CA) to continue to “have dispensation to continue to act 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”.
On 31st July, 2018, Justice Idris dismissed the no-case submission. Mr Udeogu (not Orji Kalu) challenged Justice Idris’ competence to continue to hear the matter after his elevation to the CA.
On 24th April, 2019, the CA dismissed the appeal, and it did this by seeking to distinguish extant SC authorities and precedents in OGBUNYINYA E ORS v OKUDO F ORS (1979) SCC 77 and OURLINE LTD v S.C.C. NIG. LTD F ORS (2009) 17 NWLR (Pt 1170) 383. This, notwithstanding that the CA was aware of the above precedents, including GABRIEL IYELA v COP (1969) 1 NMLR 180; and SODEINDE v THE STATE (FCA|1b|20|1977).The CA also did this, in spite of wholly agreeing with the Apex Court’s principle laid down in the above cases, that a Judge elevated or appointed to a higher court would cease to be a Judge from the court from which he was elevated and would therefore, lack the requisite jurisdiction. They agreed that the decisions are “still extant and applicable, in appropriate cases”.
The SC upheld the appeal and annulled the trial, as it pertains to Jones Udeogu ONLY. Can Orji Kalu take benefit of this, not being Udeogu? This is the question for determination.
The law is that, if co-accused persons (Udeogu and Kalu) were to have different presentations and evidence led in proof of the charge against them during a trial, then the discharge of Udeogu may not necessarily lead to the discharge of Kalu. The SC so held in YUSUF v FRN (2017) LPELR-43830 (SC); and OKORO v THE STATE (2012) LPELR-7846 (SC).
But, Kalu and Udeogu had a Joint Trial
For the record, Kalu and Udeogu were both convicted and sentenced by the FHC, Lagos, to 12 and 10 years’ imprisonment, respectively, on 5th December, 2019. The trial was a joint one, under one charge; same Judge; same court; same time; same facts; same witnesses; and the same evidence. Kalu and Udeogu were thus, tied together by the same umbilical cord. They were inseparable Hamlet and the Prince of Denmark; 6 and half a dozen. They were in the same boat and either swam or sank together, in the raging current of the criminal trial. It must be stated that, Kalu and Udeogu were jointly convicted and sentenced together under counts 24, 25, 27, 28, 30, 31, 32, 34, 37, 38 and 39 (eleven whole counts out of 28). Kalu, on the other hand, was sentenced on 18 separate counts.
It is also pertinent to state that, during the final proceedings of October 22, 2019, the prosecution had argued that the second Defendant (Udeogu) had already admitted to the offence, both in his extra-judicial statement and under cross-examination. He argued that, “the admission is binding on all Defendants”. The Judge agreed, in convicting them. So, what has changed? Nothing, between when the Judge convicted Kalu and Udeogu, and 8th May, 2020 when the SC delivered its judgement. Can Orji Uzor Kalu take Benefit of the Supreme Court Judgement Yes, he can.The position in law shows that, in cases where an accused is tried jointly with another accused and their case is clearly inseparable and interwoven, the conviction of one can never stand where his co-accused is discharged and acquitted. The Supreme Court emphasised this in ALO v STATE (2015) LPELR-24404 (SC), when it held that: ”…where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was discharged and acquitted”. See also AFRIBANK NIG PLC v HOMELUX CONSTRUCTION COMPANY LTD & ANOR (2008) LPELR-9020 (CA); UMANA & ANOR v STATE (2018) LPELR-44403 (CA); SHEKETE v NAF (2007) 14 NWLR (Pt. 1053) 159 at 202; YAU v STATE (2012) LPELR-20798 (CA); and UKPE v STATE (2012) LPELR-19715 (CA).
It is clear and beyond argument, that the case and trial of Orji Kalu and Udeogu, being an inseparable joint one, the decision of the SC which set aside the trial of Udeogu, applies with equal force and in similar measure to Kalu. For the avoidance of doubt, and for those concerned that the “fight against corruption”, has in their perception been “defeated”, the SC DID NOT SET Udeogu free, nor discharge him (the benefit of which Kalu is equally entitled to). It merely set aside the trial of Udeogu and remitted the case back to the Chief Judge of the FHC for reassignment to another Judge of the same FHC, for “trial de novo”. In other words, it is not yet Uhuru for them.
So, let us be patient. Let the wheels of justice grind to their sure destination, even if slowly. True, justice delayed is justice denied. But, more serious is “justice hurried, is justice crushed”. See THE CHAIRMAN, NATIONAL POPULATION COMMISSION v THE CHAIRMAN, IKERE LOCAL GOVERNMENT & ORS (2001) 7 S.C. (Pt. III) 90 at 97-8, 100; TRADE BANK PLC v UDEGBUNAM & ANOR (2004) ALL FWLR (PT. 200) 1576 at 1590 C.A.
The imperious Section 396(7) ACJA, which now been roundly invalidated and struck down by the SC, has brazenly but, unfortunately, challenged eye-ball-to-eye-ball, the supremacy of the Constitution as the grundnorm and font et origo of our democratic dispensation, contrary to Section 1(3) of the same Constitution. Even the ACJA itself was promulgated, not only to “promote the efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime”, but, equally, for the “protection of the rights and interest of the suspect, the Defendant and the victim”. So,‘fiat justicia ruat caelum’ (let justice be done though the heavens fall). But, the heavens have never fallen. They will not fall now.The NCS is hereby, humbly advised to release BOTH Ude Udeogu and Orji Uzor Kalu immediately, if they have not already done so. The NCS should await their fresh arraignment, and trial. As was once stated by Cassandra Clare,“the law is hard, but it is the law”.
Dr Mike Ozekhome OFR, SAN, Human Rights Lawyer and Activist