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We in the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) gives the following comments applauding the decision of the NATION’S Apex court setting aside the conviction of Orji Uzor Kalu the Chief Whip of the Senate of the Federal Republic of Nigeria:

“Today, just a while ago, the Supreme Court of Nigeria set aside the judgment of the Federal High Court sitting in Lagos State delivered by Hon Justice Mohammed Idris on April 24, 2019 which sentenced Senator Orji Uzor Kalu to 12-years imprisonment for alleged fraud. The rationale for the judgment of the apex Court which lead judgment was read by Ejembi Eko, JSC was that the trial judge was no more a judge of the Federal High Court having been elevated to the Court of Appeal prior to conclusion of the trial. The apex Court accordingly directed a re-trial of the case by another judge of the Federal High Court.

You will recall that the trial began with a charge preferred against Senator Kalu on October 31, 2016 but the trial judge was elevated and sworn in to the Court of Appeal in June 2018. However in a somewhat twist of events, the trial judge was ordered by a fiat to conclude the trial, a matter which raised some concern about the circumstances of the trial and possibility of interest from high places towards a pre-determined end. One was therefore not surprised with the manner and outcome of the case.

It is apt to note at this juncture that section 249 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides that the Federal High Court shall consist of a Chief Judge of the Federal High Court and “such number of the Judges of the Federal High Court” as may be prescribed by an Act of the National Assembly. Under section 253, the constitution of the Court is clearly outlined in the following words:
“The Federal High Court shall be duly constituted if it consists of at least one judge of that Court.” (Emphasis supplied).

It presupposes that since a person cannot be a judge of the Court of Appeal
and of the Federal High Court at the same time, once one is elevated from one Court to the other, he can no longer function as a judge of the former, not even by a fiat because the first rule of interpretation of Statutes is the literal rule which posits that once the words of a legislation are clear, they should be given their ordinary meaning. The constitution of a Court is a jurisdictional issue and fundamental to the whole trial so much so that a breach of it during a proceeding, makes such proceedings void as one that never happened.
This immortal principle was enunciated by the Supreme Court in the locus classicus of Madukolo v. Nkemdilim (1962) 2 SCNLR 34. In the case of RODA v. FRN [2015]10 NWLR (Pt.1468)427 at 462, Paragraph F, the Supreme Court held that:

“Jurisdiction is the pillar upon which the entire case before the court or tribunal rests”.

In the case of JAMES v. INEC [2015] 12 NWLR (PT.1474) 538,597, D-G, the
Supreme Court re-iterated the rule when it held thus:

“A court is competent when:
(a) It is properly constituted as regards member and qualification of the members of the Bench and no member is disqualified for one reason or the other;
(b) 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.
(c) The case comes before the court initiated by due process of law and upon fulfilment of any condition precedent to the exercise of jurisdiction.” [emphasis supplied].

In the case of Sodeinde v. The State Suit No.FCA/1B/20/77 the Court held that a judgment delivered by the Chief Judge of Oyo State on a date after he had been transferred to Ondo State as Chief Judge was null and void. Similarly, in the case of Okino v. Obanebira (1999)13NWLR (Pt.636) 535, the appeal at the Court of Appeal was heard on March 10, 1993 by Uthman Muhammed and Achike, J.J.CA (as they then were) and Okunola, JCA, and judgment was reserved. Before June 9, when judgment was delivered, Uthman Muhammed had been elevated to the Supreme Court and his opinion was read by Achike, JCA (as then was) sitting with Okunola, JCA. The Supreme Court held the judgment on appeal to be null and void because although the judgment was written before his elevation, it was delivered when he was no more a member of that Court and therefore the Court lacked jurisdiction.

It does not therefore come as surprise that the decision setting aside the conviction of the Senator Kalu is a unanimous judgment of the full panel (seven justices) of the Supreme Court. It is judgment which speaks to common sense, validate the suspicion of unfair trial leading to the judgment and re-state the Court as the last hope of the common man in upholding the rule of law.

The holding of the Supreme Court in the case of GADI V. MALE [2010] 7 NWLR
(PT.1193) 225 at 266, Paras E-G that the “Courts are the primary custodians of the Constitution, nay the rule of law… inherently imbued with sacrosanct and far-reaching fundamental powers to preserve, interpret and uphold the Constitution” must not only be in words or seen to be a one off thing but a daily practice as experienced and perceived by the people.


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