As soon as the Nigerian Supreme Court judgment was made public, the Chairman of the Presidential Advisory Committee against Corruption, Prof. Itse Sagay, SAN, expressed his disapproval of the Supreme Court judgment.
In the same vein, a human rights lawyer, Mr Femi Falana SAN, said the nullification of Kalu’s conviction was a demonstration of the Nigerian legal system’s capacity to serve the interest of pampered members of the ruling class.
Kalu and Udeogu had, in 2018, applied to the then President of the Court of Appeal, Justice Zainab Bulkachuwa (retd), to issue a fiat to Justice Idris to enable him to conclude the trial, they turned around to challenge the constitutionality of the fiat after it was issued to Justice Idris and the trial had made further progress.
But Justice Ejembi Eko, who delivered the Supreme Court’s lead judgment on Friday held, “Neither the Administration of Criminal Justice Act nor any other statutes, including the Court of Appeal Act, authorises the President of the Court of Appeal to give fiat to a Justice of the Court of Appeal to return to the Federal High Court and perform the functions of the Federal High Court judge.
“The President of the Court of Appeal, not having such authority, acted ultra vires the power of her office when she gave authority to Justice M.B. Idris to conclude the trial.
“The President of the Court of Appeal does not have the power to assign a case to the Federal High Court judge. Also, the Federal High Court Chief Judge cannot meddle in the internal affair of the Court of Appeal.”
“once a judge has been elevated to the Court of Appeal, he cannot change to be a judge of the Federal High Court.”
“Section 396(7) of the Administration of Criminal Justice Act does not purport to give him a new appointment.
“Appointments to superior courts of records are exclusively made by the President. Section 396(7) of the Administration of Criminal Justice Act appears to have usurped the powers of the President. That provision is a nullity and the trial is a nullity.”
The apex court set aside “the judgment of the Court of Appeal in appeal CA/L/1064C/2018 delivered on April 24, 2019, particularly in relation to the appellant”.
It ordered that the case be “remitted to Federal High Court to be reassigned by the chief judge to another judge of the court.”
Responding to the judgment, Prof. Sagay said: “I think this judgment is a great disservice to this country. It’s a great setback because it drags us back into the iniquity of cases that have no end without any good reason at all.
“We found, in many cases, judges had spent up to five to seven years on a case, they were promoted and then they could not continue with it. A new judge would start and the case would begin all over again. It was killing our judicial system. That’s why the National Assembly passed that law under the ACJA.
“To my knowledge, there is no provision of the constitution that prohibits a judge who has been promoted to a higher court from completing a case he is considering in his current court.”
In his own reaction, Falana SAN said: “The Section 396(7) of ACJA was introduced to stop rampant instances where criminal cases involving high profile personalities were stalled for a long period as a result of the elevation of the trial judge to a higher court.
“The same members of the ruling class have now got the Section of ACJA annulled. Head or tail, the members of the ruling class win, and it is the system that suffers.
“The Nigerian legal system has demonstrated its capacity to function effectively and serve the interests of the pampered members of the ruling class.
“A couple of months ago, ex-Emir Lamido Sanusi’s ex parte application to secure his personal liberty from illegal banishment was assigned, heard and granted the day it was filed at the registry of the federal court. On that same day, the certified true copy of the court order was obtained, served and obeyed by the detaining authorities.”