Towards Resolving the Imboglio Arising from the Orji Kalu Case

In light of the ‘unjustifiable’ setback to the Nigerian judicial system occasioned by the Supreme court’s decision in Ude Jones Udeogu v Federal Republic of Nigeria (unreported Appeal No SC. 662C/2019; delivered May 8, 2020), the ‘Orji Uzo Kalu case’, attention turns to the possible ways of mitigating or ameliorating the negative effects of the decision.

In a recent analytical commentary it was demonstrated that the recent judgment of the Nigerian Supreme Court in Ude Jones Udeogu v Federal Republic of Nigeria (unreported Appeal No SC. 662C/2019; delivered May 8, 2020) was, at the least arguably, erroneous. The Supreme Court held in the case that a judge of the Federal High Court who had been promoted to the Court of Appeal was not entitled to conclude the hearing of a part heard criminal matter in the lower court. This was despite the grant of dispensation to the promoted judge in such situations under section 396(7) of the Administration of Criminal Justice Act 2015 (‘ACJA’) which the Supreme Court held to be inconsistent with section 290 of Nigeria’s 1999 Constitution.

Other commentators have similarly expressed doubt about the accuracy of the Supreme Court’s decision. The senior lawyer Femi Falana SAN demonstrated that there are other statutes which essentially allow judges of the Court of Appeal and even the Supreme Court to exercise jurisdiction that would ordinarily be seen as the province of a High Court judge. He also demonstrated that judges of both the Court of Appeal and Supreme Court are often called upon to act in capacities different from their positions in the courts on which they currently sit, such as tribunals – both domestic and international. He points out, by analogy, that the Udeogu decision would mean that the statutes permitting Court of Appeal and Supreme Court judges to exercise jurisdiction other than those constitutionally allocated to those courts are also unconstitutional. The current National Coordinator of the Legal Defense Assistance Project (LEDAP) argues that the Supreme Court’s decision ‘has set Nigeria’s criminal jurisprudence backward in a manner that is completely unjustifiable.’

The principal tragedy of the Udeogu decision is the serious damage and setback that it does to one of the few successes of long and arduous efforts to tackle the sad issue of inordinate delays in the Nigerian judicial system, which makes the lack of sensitivity on this point by the Supreme Court rather surprising. Section 396(7) of the ACJA had been perceived as a significant step in reducing or avoiding delays in criminal proceedings occasioned by technical and procedural manoeuvres – in this case, requesting a fresh trial of criminal proceedings that had reached an advanced stage merely because the presiding judge had been promoted.

In light of this ‘unjustifiable’ setback, attention turns to the possible ways of mitigating or ameliorating the negative effects of the Udeogu decision. In an ideal world, the Supreme Court could revisit the issue at the earliest possible opportunity. It appears, rather fortuitously if true, that such an opportunity is quite imminent in that judgment in the appeal of former governor Orji Uzo Kalu who was the co-accused in the trial of the Udeogu case is pending in the Supreme Court. Continuing along the line of what may be wishful thinking, it would be hoped that the Supreme Court would revisit its interpretation of section 396(7) AJCA along with and in light of the appropriate interpretation of sections 253 and 290 of the 1999 Constitution and, whisper it quietly, reverse and overrule its own decision in Udeogu.

As if to highlight the ‘wishfulness’ in the thinking above the LEDAP Coordinator pointed out in his piece that the Supreme Court’s decision in Udeogu was a unanimous decision of the full court consisting of seven judges. Realistically, it is very unlikely that the Supreme Court will depart from Udeogu in its anticipated judgment in the/any appeal of former governor Orji Uzo Kalu. Attention must thus turn elsewhere in the quest for a solution t the difficulties created by the Udeogu case.

The Udeogu decision itself by its nature and terms makes attempts to ameliorate its negative effect rather fraught. For instance, a statutory amendment would not solve the problem – as the statute would also simply be held unconstitutional in light of the extant logic of the Udeogu decision – unless the Supreme Court overrules itself. And in that is the second difficulty, the Udeogu decision has been so high profile and the pronouncements of the Supreme Court so strident that a reversal of its own decision would be highly embarrassing to the court such that it would take a very brave panel to follow that path. In light of the difficulties highlighted above, the options for addressing the negative effect of the Udeogu decision are limited and would necessarily involve constitutional amendment. The suggestions that have been made along these lines include either (a) the insertion of a provision in terms of section 396(7) ACJA into a revised Constitution or, (b) an express constitutional provision requiring a promoted judge to complete all outstanding trials before taking up his position in the higher court to which he has been promoted. The processes for constitutional amendment are usually strenuous and even with a constitutional review exercise in progress it may be wondered whether there is sufficient appetite at the moment for taking on, so frontally, a decision of the full Supreme Court. If nothing else, the Udeogu case is an exemplar of the responsibility of extreme care and attention placed on the Supreme Court.