REVEALING: How Supreme Court judgement on Kalu will affect over 50 other cases

The Friday’s judgment of the Supreme Court which nullified the trial and conviction of a former governor of Abia State, Orji Kalu, will cause an automatic reversal of gains already recorded in at least 50 criminal cases pending or concluded at various High Courts, findings by Sunday PUNCH have revealed.

The progress recorded in the over 50 cases are attributable to the authorities given to about eight Justices of the Court of Appeal to return to their previous positions as High Court judges to conclude the cases which they were handling before their elevation to the higher bench.

But in a major upset, reversing the progress recorded in the cases, the Supreme Court on Friday nullified Section 396(7) of the Administration of Criminal Justice Act, 2015, which made it possible for the Justices to continue handling the cases after their elevation to the Court of Appeal bench.

The section 396(7) is one of the innovative provisions, including the prohibition of stay of proceedings in a criminal trial, contained in ACJA which was enacted in 2015 to address delays and other odds often encountered in criminal trials in the country.

The apex court had since 2017 validated Section 306 of ACJA which barred stay of proceedings in criminal trial.

But a full panel of seven Justices of the Supreme Court, on Friday, made the far-reaching decision nullifying Section 396(7) in the case involving Kalu, who along with others had been convicted and sentenced for N7.1bn fraud on December 5, 2019.

The panel led by Justice Olabode Rhodes-Vivour, unanimously nullified the ex-governor’s trial.

It also ordered that the trial which had lasted 12 years with 19 witnesses called by the prosecution, the Economic and Financial Crimes Commission, be reassigned to another judge of the Federal High Court and start afresh.

The apex court’s judgment was on the grounds that a Justice of the Court of Appeal, Justice Mohammed Idris, who handed down the conviction in December 2019, lacked the power to return to the Federal High Court to conclude the case which he had partly heard before his elevation to the higher bench.

The apex court also 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 Idris to return to the Federal High Court to conclude the case.

Justice Ejembi Eko delivered the apex court’s lead judgment and other members of the panel, comprising, Justices Rhodes-Vivour, Mary Odili, Olukayode Ariwoola, Kudirat Kekere-Ekun, Inyang Okoro and Amina Augie consented.

Few days after the Federal High Court had convicted Kalu, the then President of the Court of Appeal, Bulkachuwa, on December 9, 2019 had lauded the completion of the case.

Justice Bulkachuwa attributed the credit to the provision of section 396(7) of ACJA, 2015.

She spoke in Abuja at a national workshop organised by the Centre for Socio-Legal Studies in collaboration with Federal Ministry of Justice on setting of minimum standards for the effective implementation of ACJA.

Justice Bulkachuwa said at the event that she had issued fiats 50 times to about eight Justices of the Court of Appeal, including Justice Idris, to enable them to conclude such part-heard cases.

She said Justice Idris, in addition to Kalu’s case, had concluded 15 cases through the application of the provision of section 396(7) of ACJA.

She added, “I have given fiats at least 50 times to about eight Justices of the Court of Appeal to go back and complete their assignments.

“The most recent is that of Justice Idris when he completed the matter of Orji Kalu. But before then, he had completed about 15 matters.

“Similarly, Justice Talba, and Justice Umar, Justice Ojo from the FCT High Court; and from the Federal High Court were Justices Idris, Justice Aliyu, I think about five of them from there, who have completed matters.

“I think this is a big plus for the Administration of Criminal Justice Act because matters get to be completed within the shortest time possible and decisively. I have not seen any of the matters that have come on appeal yet. I have not heard. Maybe that is the end of the matter as it is.”

The number of such fiats issued after the event in December could not be ascertained.

But Mr Femi Falana (SAN), advised on Saturday that, “in the light of the judgment of the Supreme Court, all the cases that have been benefitting from the application of the nullified provision of ACJA have to be immediately terminated and reassigned to start afresh”.

He said even the ones that had been concluded like the Kalu’s case had to start afresh.

He described the apex court’s judgment as “a reversal of the gains of the Administration of Justice Act”.

A lawyer and former National President, Committee for the Defence of Human Rights, Mr Malachy Ugwummadu, noted that “the approximately 500 sections of the ACJA 2015 including Section 396 under review were direct legislative responses and reform efforts to cure most of the seemingly intractable challenges in our criminal justice system”.

He said previous decisions of the Supreme Court in cases of Ogbuanyinya V. Okudo, and Bichi V. Shakarau, the apex court and the Court of Appeal, delivered a judgment similar to Friday’s verdict of the apex court predated the enactment of the ACJA. He noted however that the judgment casts “serious doubts on the credibility, legal and policy research and consultations that are made and scrutinised before legislations are churned out to achieve certain dynamics and progressive objectives.”