(SAN), and the Presidential Advisory Committee Against Corruption have faulted Friday’s judgment which nullified the trial and conviction of a former Governor of Abia State, Orji Kalu, and others for N7.1bn fraud.
The apex court in the judgment nullified Section 396(7) of the Administration of Criminal Justice Act, 2015 which had enabled the then President of the Court of Appeal, Justice Zainab Bulkachuwa (retd), to issue fiat to Justice Mohammed Idris, who was elevated to the higher bench in June 2018, to return to the Federal High Court to conclude the case.
A full panel of seven justices of the Supreme Court headed by Justice Olabode Rhodes-Vivour, in nullifying Section 396(7) of ACJA on Friday, held that it was unconstitutional for a judge to appear to be wearing the caps of two courts of different hierarchies at the same time.
But Falana, in an opinion article on Tuesday, argued that with the nullification of the said provision of ACJA by the Supreme Court, “the desire of the federal legislators (who passed ACJA) to halt the frustration of the prosecution of corruption cases by members of the ruling class has been defeated.”
He said, “Concerned legislators are urged to go back to the drawing board and ensure that a provision similar to Section 396 (7) of the ACJA 2015 is entrenched in the 1999 Constitution without any delay.”
He added that “the Constitution should also be amended to confer powers on heads of courts to second judges to serve in judicial tribunals and in courts outside the country.”
Falana said the judgment negated the provisions of Section 22 of the Supreme Court Act and Section 16 of the Court of Appeal Act, which give the appellate courts the powers of a trial court.
Among other established practices which the senior lawyer argued had been that the judgment negated was the issuance of fiats to Nigerian judges to serve as judges outside the country.
Reacting to the judgment, Falana noted that lawyers who commended the Supreme Court verdict “failed to advert their minds to similar provisions in other statutes which are regularly applied by the Supreme Court and the Court of Appeal.”
He said, “Whereas Section 396 (7) of the ACJA permits a justice of the Court of Appeal to conclude a part heard criminal matter in the High Court Section 16 of the Court of Appeal Act empowers the justices of the court to exercise the powers of a trial court as if the proceedings had been instituted in the Court of Appeal as a court of first instance.
“In the same vein, Section 22 of the Supreme Court Act has vested the justices of the apex court with the powers of a trial court as if the proceedings had been instituted in the court as a court of first instance.
“As the Constitution has limited the powers of the appellate courts to hear and determine appeals arising from the decisions of lower courts, are we to believe that the National Assembly violated the Constitution when it conferred the powers of a High Court judge on the justices of the appellate courts?
“In other words, can Section 16 of the Court of Appeal Act and Section 22 of the Supreme Court Act be said to be constitutionally valid in view of the decision of the Supreme Court in the case of Ude Jones Udeogu v FRN (supra)?
“Having regards to the authoritative pronouncement of the Supreme Court on the invalidity of Section 396 (7) of the ACJA, it has become constitutionally anomalous for justices of the Supreme Court to perform the functions of a high court in the course of hearing and determining civil and criminal appeals.”
Also, PACAC in a statement by its Chairman, Prof. Itse Sagay (SAN), on Wednesday, described the judgment as a cog in the fight against corruption.
The committee said the controversial judgment made politically-exposed persons appear to be above the law.
It also expressed sadness and shock about how sons and daughters of retired and serving judges and justices were nominated by the National Judicial Council for appointment as judges of the Federal Capital Territory High Court.
The statement read in part, “The Supreme Court judgment on the Jones Udeogu (Orji Kalu) case shows the court’s reliance on technicalities rather than justice and public interest.
“Moreover and painfully, the provisions of ACJA 2015 have been ignored by the Supreme Court, even though they were tailor-made to solve a great problem in our criminal justice system.
“Clearly, these kinds of judgments pose a cog in the fight against corruption especially because high profile individuals and politically exposed persons already appear to be above the law.”
The committee said “despite this major setback,” Nigerians and all other stakeholders in the fight against corruption “should partner the EFCC in the struggle against corruption.”
It maintained that “leaders must be held to account in Nigeria irrespective of their power and position.”
“PACAC will resist any special treatment for high profile Nigerians,” Sagay stated.
On the controversial recommendation of 33 persons as FCT High Court judges, PACAC stated that it “notes, with sadness and amazement, how sons and daughters of retired and serving judges and justices are being nominated for appointment into sensitive judicial positions at the expense of more qualified candidates without privileged support and backing.”
It added, “This time around, it is emphasis on favouritism/nepotism over competence. This is a pathway to future judicial malfeasance and miscarriage of justice. Nigerians and other stakeholders in the fight against corruption should fight to halt this malpractice now so as to save the nation from grave deterioration in our judicial system.”