TheCable

Mike Ozekhome, a senior advocate of Nigeria (SAN), says the supreme court has vindicated his two-year struggle that  that provisions of the Administration of Criminal Justice System (ACJA) are inferior to the overriding powers of the constitution.

In a statement issued after the supreme court nullified the conviction of Orji Uzor Kalu, a former governor of Abia state, the senior lawyer hailed the apex court.

The Economic and Financial Crimes Commission (EFCC) had arraigned Kalu before Mohammed Idris, a former high court judge, on 36 counts of money laundering.

On December 5, 2019, Idris convicted and sentenced Kalu to prison but on Friday, a seven-man panel of the apex court held that the trial court’s judgment was a nullity on the grounds that Idris (the trial judge) lacked the powers to preside over Kalu’s trial having been elevated to the appellate court.

The supreme court also held that the Fiat that was issued to Idris by Zainab Bulkachuwa, former president of the court of appeal pursuant to section 396(7) of the Administration of Criminal Justice Act was unconstitutional.

In his statement, Ozekhome said he had asked Idris to recuse himself from further hearing the case of Kalu, having been elevated to the court of appeal but he refused.

The senior lawyer said the supreme court has done justice to the matter.

“On 25th September, 2018, I filed a motion before Justice Mohammed Idris, on behalf of Orji Uzor Kalu, prayerfully requesting the erudite Justice (Judge?) to recuse and disqualify himself from further trying Kalu, as he (Justice Idris), had been elevated to the Court of Appeal on 22nd June, 2018,” he said.

“The following day, 26th September 2018, I argued the motion in proceedings that lasted for about 4 hours. The pith of my argument was that Justice Idris, having been elevated to the court of Appeal, was no longer qualified to sit as a Judge of the federal high court, and was thus disqualified from trying Kalu.

“I contended that section 396 (7) of the ACJA which permits a high court Judge elevated to the court of appeal to continue with and conclude a part heard matter was in gross conflict with the provisions of sections 1(1), 1(3), 238(2), 239, 240, 250(2) and 253 of the 1999 Constitution, and therefore liable to be struck down.

“I cited, inter alia, the earlier supreme court case of Ogbuanyinya & 5 Ors v. Obi Okudo (1979) 9 S.C 32. I, therefore, urged the court to remit the case file back to the chief judge of the federal high court, for reassignment to another Judge. The learned trial Judge in a very brief ruling held that though my argument was “compelling and the issues raised recondite and paramount”, he would still go ahead and hear the case since the same issue had earlier been raised (albeit orally) and he had overruled same. He concluded that since his earlier ruling on the matter was already being challenged at the Court of Appeal, he would go on with the trial.

“The Supreme Court of Nigeria has just vindicated my two year struggle that provisions of the Administration of Criminal Justice System (ACJA) are inferior to the overriding powers of the Constitution.”

Ozekhome cited several supreme court decisions discrediting the provisions of section 396(7) of ACJA. He described the 12-year jail term conviction of Kalu as “unfair and unjust” adding that “justice has been finally served”.

“It is clear to me that any judgment delivered by a Justice of the Court of Appeal acting as a Judge of the High Court/Federal High Court is unconstitutional, illegal, null and void,” he said.

“Same is subject to being set aside on appeal. For, when an act is void, it is void ab initio-and for all purposes.

“The best route open to judicial officers is for all elevated Judges to immediately and honourably recuse themselves from further trial of criminal cases before lower courts.

“To continue such trials is to have such judgments set aside on appeal, and cases ordered to start de Novo”