AND 2 OTHERS (SC. 215/2012)
(2016) NGSC 34 (18 MARCH 2016)


The Supreme Court on the 8th day of May, 2020 ordered for a de novo trial of money laundering charge brought against Orji Uzor Kalu, a Federal Law maker representing Abia North Senatorial District and a former Director of Finance in Abia State, Jones Udeogu preferred by the Economic and Financial Crime Commission (EFCC),
Though i have not read the full judgement, but i shall consider two germane tests forming the yardstick for the decision.

  1. Jurisdictional Test
  2. Constitutional Test
    Jurisdictional Test
    What is Jurisdiction?

Jurisdiction simply means the authority or power of court to hear and determine cases.
It is a desideratum in every judicial proceedings. Once a court lacks the requisite jurisdiction to determine a cause or action, the proceedings therefore would invariably amount to a nullity and liable to be set aside no matter how well the trial was conducted.
The constitution unequivocally spelt out the judges that are to man our various courts and their responsibilities devoid of an overlap.

For instance, Federal High Court are to be manned by judges of the Federal High Court whilst the Court of Appeal are to be manned by justices of the court of Appeal.
An attempt by a justice of the court of Appeal to adjudicate matter in Federal High Court robs the court of its jurisdiction.

Hence, power exercised by a justice of the court of Appeal in a Federal High Court amounts to ultra vires and a nullity.

Gordy Uche (SAN), counsel to the defendant had brought an application before the president of Court of Appeal Hon. Justice d Zainab Bulkachuwa dated the 26th day of June, 2018 hinged on the provisions of section 396 (7) of the Administration of Criminal Justice Act 2015.

The said application prayed for Hon. Justice M.B. Idris JCA who was the trial judge but elevated to Court of Appeal to be given a fiat to conclude the part-heard trial of Orji Uzor Kalu & 2 Others.
The said application was granted as prayed.

Hon. Justice M.B. Idris concluded the matter and consequently sentenced Orji Uzor Kalu and a former Director of Finance in Abia State, Jones Udeogu to 12 and 10 yrs imprisonment respectively.

Dissatisfied with the judgment, Kalu challenged the decision of the trial court at the court of Appeal.

However, the appellate court, in a unanimous verdict by a 3 men panel of justices dismissed the appeal and affirmed the decision of the trial court.

The panel in the judgment that was read by Hon. Justice Olabisi Ige JCA, held that the appeal lacked merit.

Kalu still dissatisfied with the judgment of the Court of Appeal, challenged the decision in the Supreme Court.

The Apex Court, in a unanimous decision by a seven men panel of justices led by Hon. Justice Bode Rhodes-vivour nullified the entire proceedings that led to Kalu’s conviction, even as it ordered the Chief Judge of the Federal High Court to reassign the case for re trial.

The Supreme Court in the lead verdict read by Hon. Justice Ejembi Eko, held that the trial High Court Judge, Justice Mohammed Idris acted without jurisdiction when he convicted Kalu, his firm, Slok Nigeria Limited and a former Director of Finance in Abia State, Jones Udeogu.

I totally agree with the submission of the Supreme Court because as at the 5th day of Dcember, 2019 when Hon. Justice M.B. Idris was elevated to the position of Justice of the Court of Appeal, he ceased to be a judge in the Federal High Court and as such bereft of the power to adjudicate matter therein.

In all of this summation, it is germane to state that Issues relating to whether or not a court of law has jurisdiction are fundamental; lack of jurisdiction is fatal. See OTUKPO v. JOHN (2000) 8 NWLR (669) 507; BRONIK MOTORS v. WEMA BANK (1983)6 S.C. 158; and OMOKHAFE v. Military Administrator (2005) 2 MJSC 173. In MADUKOLU v. NKEMDILIM (1962) 1 ALL NLR 589, the Supreme Court had provided the following guide for determining whether a court has jurisdiction (per Hon Justice Vahe Bairamian (FJ)): ‘Put briefly, a court is competent when:
(1) it is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and (2) the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction: and (3). the case comes before the court initiated by due process of law, and upon fulfilment of any condition precedent to the exercise of jurisdiction. Any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided: the defect is extrinsic to the adjudication.’”

Constitutional Test
To address this point, we shall consider the following provisions of the law.

Section 1 (1) of the constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:

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

Subsection (3) provides thus:
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.

Section 253 of the constitution provides thus:
The Federal High Court shall be duly constituted if it consists of at least one judge of that court.

The provision of section 396 (7) of the Administration of Criminal Justice Act, 2015 provides 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 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.
Provided that this subsection shall not prevent from assuming duty as a Justice of the Court of Appeal.

The luminous wordings of section 253 of the constitution which provides for the Federal High Court to be dully constituted when it is manned by at least one judge of the court has clarified the legal puzzle and conundrum occasioned by the Provision of Section 396 (7) of the ACJA, 2015.

This means that the section 396 (7) is inconsistent with the provision of section 253 of the constitution of the Federal Republic of Nigeria 1999 (as amended) and to the extent of the inconsistency be declared void by the application of section 1 (3) of the constitution.

Suffice to say that upon the elevation of Hon. Justice M. B. Idris to Court of Appeal, he ceased to be a Federal High Court Judge and any action exercised by him in the said court shall be unconstitutional and void.

However, for section 396 (7) of the ACJA to gain a full fledged application a constitutional amendment is de rigueur.

The Supreme Court held: “The fiat that was issued to Hon. Justice Idris by the court of Appeal president pursuant to section 396 (7) of the Administration of Criminal Justice Act, 2015 was unconstitutional.

The Court of appeal president acted utra vires his power when she purportedly gave the authorization with respect to Kalu’s case.
Just as the Court of Appeal president has no power to assign the case to any Federal High Court Judge, so also does the Federal High Court Chief Judge lack the power of Appeal” per justice Eko.

Having failed to follow proper procedure to amend the CFRN, the NA had acted utra vires in the enactment of secrion 396 (7) of ACJA. Hence, the fate that rightfully befell the ACJA. No matter how well-intentioned a law is, if the law violates the CFRN, the law must be struck down based on section 1(3) CFRN, 1999. When a question is raised as to the unconstitutionality of a law, the merit of the affected law becomes an irrelevant/immaterial consideration. Our constitution is Supreme; any law that deviates from its provisions (expressly or impliedly) is unconstitutional and must go.️That’s the point here.️Nigeria voluntarily chose Constitutional Democracy for itself. Rule of law is the basis for any functional constitutional democracy.️Mahmoud Abbas said, “we cannot build the foundations of a state without rule of law. In MILITARY GOVERNOR OF LAGOS V ODUMEGWU-OJUKWU (2001) FWLR (Part 50) 1779 at 1802, para B-E, Obaseki, JSC said, “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.”

Sequel to the Judicial onslaught of the application of section 396 (7) of the Administration of Criminal Justice Act, 2015, the intent and purposes of the provision which is to expedite the administration of criminal justice in Nigeria has become a boondoggle.
Hence, can only be sanctioned by constitutional amendment.

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