Supreme sacrifice

Lawal Ogienagbon

Injustice anywhere is a threat to justice everywhere – Martin Luther-King (jnr)

BY now, the Supreme Court should be used to such things. The ways and the wailing of losing appellant politicians and their lawyers. There is no adjective that they do not use to describe the court after losing a case. Before they leave the court precint, they are already talking and spewing fire over what they perceive as “kangaroo judgement”.

Mind you, the verdict is always described as such when they lose, but when they win, they dress the  court in superlative terms. “A fantastic judgement”; “their lordship did a yeoman’s job”; “aaah, that verdict will stand the test of time”, they go on and on. Since the court’s May 8 verdict in the Ude Jones Udeogu and Orji Uzor Kalu matter (better known as the Kalu case), there has been an unrelenting attack on the court.

Incredibly, those who are expected to exercise restraint and educate lay men like me, are leading others in pouring venom on the court. There is nothing bad in criticising the Supreme Court’s decisions, but such criticisms must be informed and based on the law relating to that case. No two cases are the same except if they are related as per the issues at stake, fact and law. The Kalu case is a straightforward matter of alleged corruption preferred against him as former governor of Abia State, Udeogu, who was director of finance at the Government House, Umuahia, and Slok, Kalu’s company.

They were convicted last December 5 by Justice Mohammed Idris of the Federal High Court (FHC), Lagos, after a 12-year trial. At the time of the verdict, Justice Idris had been elevated to the Court of Appeal. As a Justice of the Court of Appeal (JCA), Idris was no longer constitutionally empowered to handle the case which had gone round one or two other judges before him.

To ensure that the case did not suffer further delay because of Idris’ elevation, Justice Zainab Bulkachuwa, President of the Court of Appeal, PCA, as she then was, granted him fiat to conclude the case in line with Section 396 (7) of the Administration of Criminal Justice Act (ACJA) 2015. Herein lies the problem that befell the case which Udeogu latched on to quash his trial and conviction at the Supreme Court.

Section 396 (7) allows an elevated judge to return to the high court to conclude a part-heard matter, if given fiat by the PCA to do so. Based on Kalu’s request, Bulkachuwa granted Idris such fiat, but Udeogu urged the judge to hands off the matter because of his new position. His Lordship refused and insisted on hearing the case to its logical conclusion. He also refused an oral application later brought by Kalu after the former governor  realised the futility of his request that the file be returned to the FHC Chief Judge for reassignment to another judge because he (Idris) no longer had jurisdiction to handle the case.

In law, jurisdiction is central to the hearing and determination of a case. If a court acts without jurisdiction, it acts in vain and whatever it does becomes a nullity. This is exactly what happened in this case for which the Supreme Court is now being  crucified. Should the Supreme Court keep quiet in the face of the breach of the Constitution because a case had spent donkey years in court? Will such action amount to doing justice to all the parties? Should cases be determined on the basis of law or sentiments? Where a law clashes with the Constitution, as does Section 396 (7) in this case, should the age-long interpretation of the supremacy of the Constitution be jettisoned because a matter has been in court for long?

The position is and will always be that where a law clashes with the  Constitution,  the Constitution prevails because it is the grund norm, that is the supreme law of the country. The Constitution puts it succinctly in Section 1 (3): if any 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. Yes, a lot of resources,  time and energy was spent on the Kalu case, but that should not stop the courts from doing what is right in order to avoid a miscarriage of justice.

Justice is at the bottomline of whatever the courts do and the Supreme Court, now led by Chief Justice Ibrahim Muhammad, must be seen leading the way in this regard. Where the lower courts get it wrong, as they sometimes do, the Supreme Court should and must step in to correct things. That is not to say the final court is infallible. Though the Supreme Court’s decision in Kalu’s case, quashing the trial and conviction of Udeogu is painful, it should not be upbraided for doing what is right in the circumstance because the outcome fell below some people’s expectations. It should also not be blamed for upholding the Constitution over ACJA. In Kalu’s case as in all cases, the rule of justice for all must prevail.

As Justice Oputa, then of the Supreme Court, observed in the 1985 case of Josiah v the state: “justice is a three-way traffic, justice for the appellant, justice for the victim and finally,  justice for the society… it is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty (emphasis mine), that he should be punished…” The question then arises: were Kalu, Udeogu and Slok properly tried and found guilty in line with this principle?

The answer is obvious; they were not because they were tried by a judge who lacked the jurisdiction to do so. Bulkachuwa and Idris meant well in seeking to dispense with a case that had spent 12 years in the docket, but they should have done so within the ambit of the law. By not doing so, they acted ultra vires by relying solely on Section 396 (7) without recourse to Sections 1 (1), (3), 239, 240 and 253, among others, of the Constitution, which they, like other judicial officers, swore to uphold.

The Supreme Court did not err by ordering Udeogu’s retrial and expunging Section 396 (7) from the ACJA. That is the position of the law and as the maxim goes let justice be done, even if heavens will fall. For the Supreme Court, this is coming at a very high price. That is a burden and not a blunder, which the court must continue to live with as the final court in the land.