Orji Uzor Kalu, Udeogu vs FRN & Ors: What Supreme Court failed to consider

INTRODUCTION:

LAGOS, Nigeria –  “…A Judge should ask himself the question how, if the makers of the Act had themselves come across this rock in the texture of it, they would have straightened it out? He must then do so as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.”

The above statement encapsulates the need for the Courts in interpreting the provisions of a statute to adopt an approach that will give meaning to the purpose for which the statute interpreted was made and that will accord with common sense. Adopting this liberal and purposive approach to the interpretation of the provisions of the Constitution, the Supreme Court of Nigeria way back in 1981 in the case of Rabiu vs. The State [1981] 2 NCLR 293 at page 326 held as follows:

“—-that the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way as to defeat the principles of government enshrined in the Constitution.

And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution, to indicate that narrower interpretation will best carry out the objects and purposes of the Constitution.”

In the recent decision of the Supreme Court of Nigeria in the criminal case of Ude Jones Udeogu v FRN & Ors, the proceedings in the case bothering on corrupt practices which lasted for a period of over 5 (five) years was set aside and a retrial ordered on the basis that the judge who decided the case had at the material time of his judgment ceased to be a judge of the Federal High Court in which the case was decided by virtue of his elevation to the Court of Appeal and therefore lacked the powers to sit as a judge of that court. 

The provision of section 396(7) of the Administration of Criminal Justice Act, 2015 (ACJA) which was enacted to deal with such situation of the elevation of a judge to an appellate court by giving the elevated judge the dispensation to conclude any matter being heard by him as of the time of his elevation was declared unconstitutional and void. A retrial of the previously convicted defendants in that case was ordered after over 5(five) years of prosecution.

As expected, the decision of the Supreme Court provoked heated debate, discussion and arguments from stakeholders in the legal profession and the general public particularly as same bothers on corrupt practices and has occasioned the freedom of a former Governor convicted for the offences charge on an issue which does not relate to the merits of the case against him. Whilst some legal pundit aligned themselves with the position of the Supreme Court, some others have criticized the decision of the Supreme Court as being overly technical and a product of slavish adherence to judicial precedent.

In this article, I will attempt a review of the decision in the light of the legal implications and pitfalls of same and consider the adoption of a more purposive approach towards the interpretation of the Constitution and section 396(7) of the ACJA.

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The Facts and Decision in Udeogu v FRN:

Sometime in 2007, the Economic and Financial Crimes Commission (EFCC) charged the former Abia State Governor, Orji Uzor Kalu alongside his company, Slok Nigeria Limited and Mr. Ude Jones Udeogu, the former Commissioner of Finance for money laundering by conspiring and diverting Billions of Naira from the State treasury at the Federal High Court Abuja. Upon arraignment, Kalu and co- defendants challenged the validity of the charges preferred against them on the ground that the charge was in breach of the ex-parte order made by the Abia State High Court and that evidence before the Court does not disclose a prima facie case.

The Federal High Court found no merit in the argument. Consequently, Kalu appealed to the Court of Appeal, the Court of Appeal upheld the trial Court decision and Kalu further appealed to Supreme Court. The Supreme Court dismissed the appeal and affirmed the lower Court decision. The Supreme Court further ordered the Chief Judge of the Federal High Court to assign the case to another Judge for expeditious trial. 

Consequently, the case was transferred to the Federal High Court, Lagos division and assigned to Honourable Justice M.B Idris and the defendants were re-arraigned before him on the 31st of October, 2016 following which trial commenced and the prosecution closed their case after calling 19 witnesses within a period of two years. Upon adjourning the case for defence, the Defendants entered a no case submission within which period, Honourable Justice Idris was elevated to the Court of Appeal as a Justice of the Court. 

The 1st Defendant, through his legal team, wrote to the President of the Court of Appeal requesting that a fiat be granted to Honourable Justice Idris pursuant to the provision of Section 396(7) of the ACJA 2015, to conclude the hearing of the case before the end of September 2018. This line of action was probably initiated by the 1st Defendant with the hope that the no case submission entered by him will be successful but that was not to be as the no case submission was dismissed by Honourable Justice Idris on the 31st of July, 2018 following which the Defendants were called upon to open their case.

Shocked by the dismissal of their no case submission, the Defendants changed their strategy and elected to challenge the jurisdiction of the Court as constituted by Honourable Justice Idris in their appeal against the ruling dismissing their no case submission on the basis that as an elevated judge, Honourable Justice Idris has ceased to be a judge of the Federal High Court and therefore could not have validly decided the no case submission. The Court of Appeal in a unanimous decision affirmed the ruling of Honourable Justice Idris hence the further appeal to the Supreme Court.

The Supreme Court was called upon to decide whether the provision of section 396(7) of the ACJA is not contrary to sections 250(2) and 253 of the 1999 Constitution (as Amended) and whether Honourable Justice Idris as a Justice of the Court of Appeal can validly sit as a judge of the Federal High Court upon the fiat granted by the President of the Court of Appeal. In affirming the appeal, the Supreme Court held as regards the constitutionality of the provision of section 396(7) of the ACJA as follows:

“The enactment of section 396(7) of ACJA, 2015 is an attempt by the National Assembly, in view of this Court’s interpretation of section 254(1) of the 1979 Constitution  which is reproduced as the substantial part of section 290(1) of the 1999 Constitution, to whittle down the operation of the said provisions of the Constitution. Ab initio section 396(7) of the ACJA, 2015 was set out to frontally contradict and challenge the letters, substance and spirit of section 290(1) of the 1999 Constitution…therefore, by operation of section 1(3) of the Constitution, section 396(7) of the ACJA. 2015 to the extent of its inconsistency with section 290(1) of the Constitution is void.”

The Supreme Court further held that the fiat issued by the President of the Court of Appeal is ultra vires her powers and a usurpation of the power of the Chief Judge of the Federal High Court.

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LEGAL ANALYSIS OF THE SUPREME COURT DECISION:

A careful study of the decision of the Supreme Court in Udeogu v FRN simply reveals that same is basically predicated on judicial precedent in terms of applying previous interpretation of the provision of section 254(1) of the 1979 Constitution which is in tandem with the provision of section 290(1) of the 1999 Constitution by the Supreme Court.

The decisions which the Supreme Court followed was in the case of Ogbunniya v Okudo & Ors (1979) NSCC 77 and Our Line Ltd v SCC Nig. Ltd. (2009) 17 NWLR (pt. 1170) 383. In those cases, the provision of section 254(1) of the 1979 Constitution which is impari materia with the provisions of section 290(1) of the 1999 Constitution was interpreted to mean that once a judge is elevated from a trial Court to the Court of Appeal, he ceases to be a judge of the trial Court from which he was elevated and cannot determine any pending case in the trial Court.

The Supreme Court took the view that Honourable Justice Idris was wrong to have held that the cases of Ogbunniya v Okudo and Our Line Ltd v SCC Nig. Ltd were inapplicable on account of section 396(7) of the ACJA.

Granted that the Supreme Court in the light of the letters of the law were on firm legal footing in their conclusion I am of the firm view that the Supreme Court should not have come to that conclusion for reasons which I will now canvass.

Firstly, on the issue of whether the provision of the section 396(7) of the ACJA is inconsistent with the provision of section 290(1) of the 1999 Constitution, I am of the firm view that the interpretation adopted by the Supreme Court based on the previous decision in Ogbunniya and Our Line Ltd’s case is not in tune with the realities of today and spirit of the people for which the law exist.

The interpretation unfortunately ignores the mischief for which section 396(7) of the ACJA was enacted which should not be the case. Let me give a bit of history to the law.

Prior to the introduction of section 396(7) of the ACJA, the vice or societal ill that has ravaged the nation and its nascent democracy has been that of corruption and corrupt practices on account of which the development of the country has remained stunted. The Supreme Court admitted this much in the case of A.G Ondo State v A.G Federation & Ors. (2002) 9 NWLR (Pt.772) 222 where per Uwias, CJN (as he then was) opined in the lead judgment that:

“Corruption is not a disease which afflicts public officers alone but society as a whole. If it is therefore to be eradicated effectively, the solution to it must be pervasive to cover every segment of the society.”

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In his concurring judgment, per Ogwuegbu JSC opined thus:

 “Any legislation on corruption and abuse of power must be of concern to every Nigerian notwithstanding that its operation will affect property and civil rights for citizens in a State. Such an enactment like all enactment of the National Assembly will be of paramount force.”

The level of corruption in the country became more worrisome by the fact that when the perpetrators of the corrupt practices are investigated and arraigned in Court, they easily find solace on available technical points and loopholes in our judicial system to ensure delay in the trial of their cases with the hope to probably wear out or cause fatigue to the prosecution which may on account of the length of time spent in the prosecution loose vital witnesses on account of death and other related issues. One of such breeding ground for delay easily latched on to is the scenario in the case of Udeogu v FRN to wit; where the case will have to commence denovo because the judge to whom the case is assigned has been elevated to an appellate Court or in other cases transferred out of jurisdiction or attains the age of retirement. This scenario has often resulted in the eventual freedom of those suspected of corrupt practices hence members of the public began to lose confidence in the institution of government and the judiciary to champion the fight against corruption.

Therefore, to seal up the seeming loophole created by the possible elevation of a judge before whom such criminal case is pending, section 396(7) of the ACJA was introduced to the effect 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 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.”

The mischief intended to be cured by section 396(7) of the ACJA is to prevent delay and obstruction of part- heard criminal trial as a result of the elevation of the judge hearing the matter.

Sadly, in construing the provisions of section 396(7) of the ACJA, the Supreme Court failed to take cognizance of the mischief intended to be cured and merely viewed the issue from the narrow compass of an attempt to avoid the implication of the previous interpretation of the Constitution by the Court. In fact, the Supreme Court failed to consider in the entire judgment why the provision was introduced but held itself bound to only the letters of the law. This approach in my view has occasioned injustice to the prosecution.

It is my submission that what the Supreme Court should have done in the circumstances is to adopt a purposive approach in its interpretative role by taking into cognizance the fact that the Constitution as at the time it was made could not have envisaged the current situation in terms of the level of corrupt practices and delay in the administration of criminal justice thus the interpretation given to the provision of the 1979 Constitution in the previous cases of Ogbunniya and Our Line Ltd’s case which was influenced by the prevailing circumstances at that time out to have been distinguished as rightly done in my view by Honourable Justice Idris.

The purposive approach to construing section 396(7) of the ACJA would entail a process in which the Supreme Court takes account of the words of the legislation according to their ordinary meaning and also the context in which they are used, the subject matter, the scope, the background, the purpose of the legislation, in order to give effect to the true intent of the legislation and not just the intention of parliament only.

The purposive interpretation approach suggested here is not new, it is in fact what the Supreme Court has suggested and adopted in the case of A.G Ondo State v A.G Federation & Ors. as follows:

“The court is conscious of the history of corruption in Nigeria and should not be at liberty to construe the ICPC Act or any Act of the National Assembly by the motives which influenced the legislature, yet when the history of the law and legislation tells the court what the policy and object of the legislature were, the court is to see whether the terms of the acts are such as fairly carry out the policy and objective.”

The Supreme Court in the case of A.G Ondo v A.G Federation & Ors. was called upon to consider the constitutionality of the Independent and Corrupt Practices Act and the Court in arriving at its decision took into cognizance the endemic nature of corruption in Nigeria. Even though some provisions of the ICPC Act was declared void, the Supreme Court still affirmed the constitutionality of the ICPC Act.

This same approach was adopted and commended by the Supreme Court of the Dominion of Canada in the case of Re: Anti-Inflation Act (1976) 2 S.C.R 373 where the Court was faced with the test of determining whether the Canadian Anti-Trust Act, 1976, was enacted for the peace, order and good government of the Dominion of Canada and whether it did not, in the circumstances under which it was enacted invade the legislative competence of the provinces. The court held that:

“The Anti-Inflation Act is valid legislation for the peace, order and good government of Canada and does not, in the circumstances under which it was enacted … invade provin¬cial legislative jurisdiction…the preamble to the Act was sufficiently indicative that Parliament was introducing a far-reach¬ing programme prompted by what was in its view a serious national condition and the absence of the very word “emergency” was not unduly significant. The validity of the Act did not stand or fall on the preamble but the preamble provided a base for assessing the gravity of the circumstances giving rise to the legisla¬tion.”

In the United Kingdom, a purposive interpretation of then Finance Act of the United Kingdom was adopted by the House of Lords in the case of Pepper v Hart [1992] 3 WLR 1032 where the Court was called upon to decide whether a teacher at a private school will have to pay tax on the extra perks he gets from reduction of school fees. The Court in that case departed from its previous decisions and had recourse to the Hansard in considering the background of the law and giving effect to the purpose for it. Lord Griffiths opined in that case thus:

“The days have passed when the courts adopted a literal approach. The courts use a purposive approach, which seeks to give effect to the purpose of legislation and are prepared to look at much extraneous material that bears upon the background against which the legislation was enacted.”

The progressive trend by Courts in those other Jurisdictions such as the United Kingdom, Canada and India, is to adopt the purposive approach to decipher the purpose of the statute. 

A purposive interpretation of the provision of section 396(7) of the ACJA vis-à-vis the provision of section 290(1) of the 1999 Constitution in the instant case will then be to consider the mischief intended to be cured by the provision and then distinguish the current factual circumstances from the purview of the interpretation offered in the previous cases of Ogbunniya and Our Line Limited  to the effect that an elevated judge may in fact conclude criminal cases pending before him before his elevation. The Supreme Court in my view failed to do this and turned a blind eye to the mischief for which the law was enacted which adoption of a purposive interpretation would have greatly assisted the Supreme Court to consider.

My point here becomes more obvious by the fact that it was the 1st Defendant that applied in the first place for the fiat to be given to Honourable Justice Idris (though we concede that this may not have been in the records before the Supreme Court) thus a more purposive approach to the issue would have prevented a situation where the 1st Defendant would not be availed an opportunity to approbate and reprobate at same time and should have prompted the Supreme court to consider the mischief which the law was set out to cure.

Furthermore, in the Ogbunniya and Our Line Ltd cases, what the Supreme Court did at that time was simply to construe the provision of section 254(1) of the 1979 Constitution to mean that once a judge subscribes to the oath of office of a particular court he becomes a judge of that Court. The further implication of stating that the judge cannot then go back to his former Court to conclude a case was a product of application of that interpretation. What I am trying to say here is that there is no express provision of the Constitution actually barring and/or prohibiting the legislature from making a law to allow a judge who has been elevated and have subscribed to the oath of an appellate Court from concluding criminal cases that were pending before him in his former Court prior to his elevation.

Consequently, in view of the settled position of the law that what is not prohibited is implied permitted, the Supreme Court ought not to have held that section 396(7) of the ACJa is inconsistent with section 290(1) of the 1999 Costitution. See in this regard the case of  Theophilus v FRN (2012) LPELR-9846 (CA).

The case of Ude Jones Udeogu V FRN & Ors presented the Supreme Court the golden opportunity to adopt the purposive approach to settle the controversy surrounding the constitutionality of Section 396(7) of ACJA.

It is quite unfortunate that the Supreme failed to grasp this significant opportunity that could bring a milestone change to our law but rather slavishly and rigidly held on to to its earlier decided case.

LEGAL CONSEQUENCE/PITFALLS OF THE DECISION IN UDEOGU V FRN

The decision of the Supreme Court in Udeogu v FRN is not without negative consequences which underscores the pitfalls of the decision some of which I will set out below:

(1.)         Delay in Prosecution of Cases:

The first obvious consequence of the decision is the fact that upon the provision of section 396(7) of the ACJA, litigants and their lawyers are now more conscious that after many years of trial, criminal cases will have to commence denovo where the trial judge is elevated to the Court of Appeal  thus where their case is assigned to a diligent judge with prospects of elevation to the Court of Appeal, it becomes a part of their legal armoury to put up all forms of dilatory tactic and wait for that moment when the judge will be elevated and celebrate the trial denovo with its attendant effect such as loss of some evidence and witnesses or failure of prosecutorial witnesses memory.

This portends serious danger to the fight against corruption and other offences which have today crippled the Nigerian economy and our social lives.

(2.)         Injustice to the Prosecution:

Justice in a criminal matter is a three pronged affair to wit; justice to the Court, the Prosecution and the Accused Person.

One of the attendant effects of having to commence trial denovo in criminal cases particularly where as in the Udeogu’s case the prosecution has closed its case is that the Accused Persons having had benefit of cross-examining all the witnesses of the prosecution and their testimony under cross-examination will now have the opportunity of a second bite at the cherry and would have become wiser and armed with tricks to avoid the truth.

Moreso, the witnesses themselves on account of the number of years in which the trial was conducted and when the facts being testified to occurred may have lost vivid memory of the facts. In fact some of those witnesses may have even passed on by then. How fair is that scenario to the prosecution? Can it then truly be said that there is justice to the prosecution? Your guess is as good as mine.

(3.)         Waste of Judicial time and Tax payers funds:

As was the case in Udeogu v FRN, in most cases in which section 396(7) of the ACJA has been activated to enable an elevated judge conclude part-heard criminal cases many years of judicial time and tax payers funds must have been put into the trial process which is now liable to be set aside and jettisoned for a fresh trial.

The impact of such colossal waste particularly when the trial spans a period above 5 years is better imagined. Tax payers fund must have been used to secure attendance of witnesses in Court, conduct forensic examination of real evidence and the likes. All those processes will now be repeated at further cost to tax payers. This is absolutely unfair.