Compulaw - 1st Indigenous Digital Law Library

Brief

Enactment that contradicts the Constitution – Whether can prevail
Judge elevated to the Court of Appeal – Whether has power to hear any matter in the court below
Chief Judge of Federal High Court – Statutory powers of
Tenure of Federal High Court Judge who was elevated to higher court – Whether can be extended
President of Court of Appeal – Whether has power to direct an appellate judge to perform functions of a judge of first instance
Elevation of judges – Effect of on judgements and decisions given post elevation
Constitution – Supremacy of over all other laws
Constitution – Supremacy of over all other laws
Section 237 of the Constitution
Section 238(2) of the same Constitution
Section 239 of the Constitution
Section 240 of the Constitution
Section 250(2) of the 1999 Constitution as amended
Section 253 of the 1999 Constitution as amended
Section 251 of the Constitution
Section 252 of the 1999 Constitution
Section 254(1) of 1979 Constitution
Section 290(1) of the 1999 Constitution
Section 396(7) of the Administration of Criminal Justice Act, 2015
Section 1(3) of the Constitution

Facts

On 31st October, 2016 at the Federal High Court, Lagos Division the Appellant, and the 2nd and 3rd Respondents were arraigned before the Honourable, Justice M. B. Idris - judge of the Federal High Court, on several criminal allegations or charges. They each pleaded not guilty to all the charges. Trial thereafter commenced before his Lordship M. B. Idris, J. The prosecution called a total of 19 witnesses and on 11th May, 2018 they closed their case. On 28th May, 2018 the Appellant entered a no case submission. The prosecution (the 1st Respondent) on 17th July, 2018, filed written address in opposition to the no case submission.

The Honourable, M. B. Idris, J was on 20th June, 2018, elevated to the Court of Appeal as a Justice of the Court. On 22nd June, 2018 the Honourable, Justice M. B. Idris took his oath as a Justice of the Court of Appeal and had from his said elevation ceased to be a judge of the Federal High Court.

On 2nd July, 2018, vide letter No. PCA/S.19/XIV/20 the President of the Court of Appeal, purporting to act under Section 396(7) of the Criminal Justice Act, 2015 (sic: Administration of Criminal Justice Act, 2015?) issued to the Honourable, Justice M. B. Idris, Justice of the Court of Appeal his “fiat/permission to conclude the part heard Criminal Matter: FHC/ABJ/CR/J6/07 between Federal Republic of Nigeria vs. Orji Uzo Kalu & 2 Ors now pending before the Federal High Court Lagos”. The FIAT directed the Honourable, Justice M. B. Idris, JCA to conclude the matter before the end of September 2018. The salient portion of the FIAT No. PCA/S.19/XIV/20 dated 2nd July, 2018 at page 1360 of the Record, is herein below reproduced, to wit:

OFFICE OF THE HONOURABLE PRESIDENT COURT OF APPEAL

Our Ref: PCA/S.19/XIV/20 Your Ref – Date: 2nd July, 2018

Hon. Justice M. B. Idris
Court of Appeal (Headquarters)
Abuja.

My Lord,

FIAT TO HON. JUSTICE M. B. IDRIS, JUSTICE COURT OF APPEAL TO CONCLUDE THE PART HEARD CORRUPTION TRIAL IN SUIT NO. FHC/ABJ/CR/56/07 AT THE FEDERAL HIGH COURT LAGOS.

By the virtue of the provisions of Section 396(7) of the Criminal Justice Act, 2015, you have my FIAT/permission to conclude the part heard criminal matter: FHC/ABJ/CR/56/07 between Federal Republic of Nigeria vs. Orji Uzo Kalu & ors now pending before the Federal High Court Lagos.

The matter to be concluded before the end of September, 2018.

Please be assured of my warmest regards.

Hon. Justice Z. A. Bulkachuwa, CFR
President, Court of Appeal.

Section 396(7) of the Administration of Criminal Justice Act, 2015 (ACJA, 2015) which the Honourable, the President of the Court of Appeal seemed, purportedly, to act in pursuance of in the “FIAT/Permission” he issued to the Hon., Justice M. B. Idris, JCA to return to the Federal High Court, Lagos to conclude the part heard criminal matter he left thereat upon his elevation to the Court of Appeal, provides –

S. 396(7) Notwithstanding the provision of any other law to the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to as a High Court Judge only for the purpose of concluding any part – heard criminal matter pending before him at the time of his elevation and shall conclude the same within a reasonable time. (underlinings supplied)

“Dispensation”, according to both Oxford Advanced Learner’s Dictionary and Black’s Law Dictionary 9th Ed., is a permission to do something that is ordinarily forbidden. That is; a permission to do something that is not usually done, allowed, legal or lawful.

Therefore, the question is; On what constitutional authority does either the National Assembly or the President of the Court of Appeal stand to grant this “dispensation” to the Honourable, M. B. Idris, JCA to continue to act as a Judge of the Federal High Court after he had ceased to be a judge of the Federal High Court upon his elevation to the Court of Appeal?

Pursuant to the FIAT, above reproduced, Hon. M. B. Idris, JSC resumed his sitting in the criminal matter No FHC/ABJ/CR/156/07 Between: Federal Republic of Nigeria vs. Orji Uzo Kalu & ors. On 16th July, 2018 the prosecution sought to amend the charges. The application was vehemently opposed. In his considered ruling delivered on 17th July, 2018, the Hon, M. B. Idris, JCA allowed the amendment. Thereafter the prosecution applied to withdraw the Further Amended Charge filed on 30th May, 2018 and substitute same with the 2nd Further Amended Charge filed on 16th July, 2018. The application was granted. The Further Amended Charge filed on 30th May, 2018 was consequently struck out.

A fresh plea was taken to the 2nd Further Amended Charge filed on 16th July, 2018. The Appellant, like the 2nd and 3rd Respondents, pleaded not guilty afresh to the 2nd Further Amended Charge.

Arguments on the Appellants No Case Submission were taken on 25th July, 2018 before M. B. Idris, JCA. In his considered ruling delivered on 31st July, 2018, His Lordship, M. B Idris, JCA dismissed the No Case Submission. The Appellant was thereafter called upon to enter upon his defence. In his appeal against the ruling, the Appellant challenged the competence of M. B. Idris, JCA to continue to sit and hear the matter: FHC/CR/56/07 then pending before the Federal High Court, Lagos. The Court of Appeal (hereinafter called “the lower court”) heard arguments in the appeal on 7th February, 2019 and on 24th April, 2019, in the considered judgment the justices of the lower Court unanimously dismissed the appeal – hence this further appeal.

Issues

Whether Court of Appeal was right when it held that Section 396(7) of the...