Supreme Court's decision on Sen. KALU's case not final, Says Muhammad Abdullahi

SUPREME COURT'S DECISION ON SEN. KALU'S CASE NOT FINAL.

It is common and natural  that men differ in their perceptions over a given fact - this is what makes our argument. Arguments are products of our intellectual and emotional insights. None is right or wrong. We only may have some that enjoys popular sentiment, even these don't make the law. It is the arguments of persons vest with power (Legislators and judicial officers) to make and interprets the law that actual do make and shape the law. Does that mean we don't have a say? No. Democracy which we profess as the prime value of our state policy encourages the existence of public opinion on every matter, including the law.

You must have heard of the Supreme Court ordering a retrial of Sen. Orji Ozor Kalu's case (One that lasted 12 years from trial, conviction to sentence.) and  might have read one or two opinions on the issue. Perhaps we can go through it together again.

Section 253 of the constitution of Nigeria, 1999 provides for who can hear and determine criminal trial in the Federal High Court (FHC) and that is a judge of the FHC. A Judge of the FHC would cease to hold that position  upon death, removal, retirement, resignation or elevation to the Court of Appeal.

In Kalu's case, the judge, Justice Muhammad Danladi, was elevated to the court of Appeal before he delivered the judgement convicting the accused. Thus, by the dictate of section 253 he was no longer a judge of the FHC.

Notwithstanding the above his lordship proceeded to sit and delivered his judgement. It follows logically that in the eyes of the law while he was seated, alone, delivering the judgement, he wasn't there - no other judge was. And this violates the minimum requirement of at least  one judge of the FCH to determine a matter in the FHC.

This means Kalu was never found guilty, never convicted and never sentenced.

But why had the judge done so when he knew he lacked the power to so do? We would find our answer in section 396 (7) of the Administration of Criminal Justice  Act, 2015 (ACJA), which provides that where a judge has been elevated and promoted to a court of higher cadre, and he has an unfinished trial at the lower court from where he was promoted, he would be allowed by a fiat from the head of his court to conclude the trial. This is to prevent the trial from commencing de novo when transfered to another judge. 

I had an experience with a judge before whom a case that lingered for 12 years, almost at a conclusion, was brought for retrial. The judge refused to adopt evidence and records of the previous trial judge and ordered that the evidence and witnesses be taken again. That is retrial. The claimant counsel appealed to the judge, in vain, on grounds that some witnesses are now too old and some dead.

This provision seems to tell us that even though the constitution says Danladi was not there, ACJA considers him there. Could this be a conflict and struggle for supremacy? If that is what it is, we already know as an elementary law that by the dictates of section 1(3) of the Constitution, The Constitution should prevail when in conflict with other laws. That would mean, Danladi never had the power to convict Kalu.

What if we say both laws weren't conflicting and were rather complimenting? And that ACJA is simply filling the gap the Constitution left open. Just like in INEC v. MUSA where the other further conditions (which isn't contain in the constitution) for the registration of a political party was provided for in the Electoral Act, thereby providing for nuances the almighty Constitution couldn't have envisaged. Well, the court never saw through this light.

May be this is criminal law. It has to do with the freedom and life of a person and the law must be construed so strictly that even the most daft of men would say "justice has been served".

 The strict construction should serve justice. But what is justice is another spree of argument, everyone with his own. For the masses in this case may be for the court to uphold the accused's conviction.

The court never saw this as complementing or expanding of the provision of the constitution but an affront on the substantive jurisdiction of the trial court to hear and determine the matter. That is, it touches on the trial court's jurisdiction. Issues of jurisdiction are serious issues, more so, substantive. The court never saw section 396 (7) as a procedural jurisdiction that can be waived.

 How can a mere law determines the judicial power of the country? Executive, Judicial and Legislative powers must emanate from the constitution. So should their provisos. It is only when these matters are properly placed that the court can exercise their power to bring the intendment of such law to bear.

The court should have acted as it did in INEC v. MUSA than having to let this criminal go, you may want to argue. The court never let him go and because there is strong evidence and greater likelihood of his being convicted on a further trial and that was why the court ordered a retrial. But is the argument worth the order? What greater harm has the court averted by taking this position? And what does this decision holds for the future of our criminal justice system?

The source of power in every country is a priceless treasure that must be guided jealously. To allow the National Assembly to vary and determine the source by a mere legislation is to put the political, economic and social stability of the country at risk. No judge wants to open the cave of power for future looting. This is beyond Kalu, beyond 12 years imprisonment and beyond 7 billion. It is about our future, I believe.

But what is the way forward for the criminal justice system? I would suggest that the provision of section 396 (7) be transferred to the constitution or the rules of court should prohibit judges  to whom cases are transferred, from starting over again. They should be bound by the record transferred to them and allowed only minor discretion.

In conclusion, the case is yet to reach its final determination. but the opinion of the supreme court on section 396 (7) of ACJA stands tall and firm as final on the issue. One that can only be criticised and can't be changed. Rather the opinion has changed how we know the law to be and given us a manual for relating with such provision in the future. Truly, strongest of wit and intelligence is no man's exclusive. Your opinion, however dissenting, is well. Thank you for seeing through my humble view.