The Decision of the Supreme Court on the conviction of Orji Uzor Kalu & 1 ors – the Law or a Bane to the Judicial Process

Just recently, the Supreme Court reached a landmark decision that completely invalidated the conviction and twelve year jail term of Senator Orji Uzor Kalu (the former Governor of Abia State and the Chief whip of the Senate) as well the conviction and ten year sentence of Mr Ude Udeogu, the former Director of finance of the Abia State. As would be expected, this generated many commentaries from lawyers and members of the public which either criticizes or applauds the decision of the Supreme Court (hereinafter referred to as the SC).

It should be borne in mind that the decision of the SC is premised on the issues of jurisdiction and supremacy of the Constitution. Justice Mohammed Idris before whom the instant suit was instituted in 2007 at the Federal High Court was elevated to the Court of Appeal while the case was still subsisting. Permission was obtained from the President of the Court of Appeal pursuant to Section 396(7) of the Administration of Criminal Justice Act (ACJA), 2015 so as to enable him proceed and conclude on the matter. The SC held that Justice M. Idris lacked jurisdiction to decide on the matter and that Section 396(7) of the ACJA is inconsistent with the Constitution and that by virtue of Section 1(3) of the 1999 CFRN, the provision is null and void to the extent of its inconsistency.

I believe that the Supreme Court has not erred in in arriving at its decision and I will canvass my opinion on the following issues:

The Supremacy of the Constitution

Section 396(7) of the ACJA is reproduced herein below:

Notwithstanding the provisions 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 sit 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:

Provided that this subsection shall not prevent him from assuming duty as a Justice of the Court of Appeal.

Section 254 of the 1999 CFRN provides thus;

The Federal High Court shall be duly constituted if it consists of at least one Judge of that Court.

A juxtaposition of these legislations would reveal that the former sharply contradicts the latter. Section 254 of the Constitution is to the effect that the Federal High Court can only be duly constituted if the person adjudicating therein is a Judge of that court that is, the FHC. A Federal High Court is not and cannot be duly constituted by a Justice of the Court of Appeal. I humbly submit that Justice M. Idris is no longer a Judge of the Federal High Court and thus lacks jurisdiction to entertain any matter instituted therein except such matter comes before him on appeal. His Lordship cannot operate both as a Judge of the FHC and a Justice of the Court of Appeal at the same time. To this extent, the provision of Section 396(7) of the ACJA is inconsistent with the Constitution by virtue of Section 1(3) thereof. In the case of Oleyede v Memudu Ajiboye (1994) 7-8 SCNJ 1528, the Supreme Court held that the constitution is supreme not only when another law is inconsistent with it but also when another law seeks to compete with it in an area already covered by the constitution.” Moreover, the phrase “Notwithstanding the provisions of any other law to the contrary” used by the legislative draftsman of Section 396(7) of the ACJA above suggests a deliberate attempt to contradict any already existing provision of law on this issue, even if such other law is the Constitution. This should not be allowed to stand in any democratic society. The Constitution is the organic law of the land; the fons et origo of all laws. It is first to all and second to none. The supremacy of the Constitution is the bedrock of any given democracy, it is pivotal to the existence of democracy. In AG Oyo State v NLC Oyo State Chapter Ors (2002) LPELR-CA/I/M.110/02, the Court declared that “the Constitution is supreme and all other legislations in the land take their hierarchy from the provisions of the Constitution. The laws made by the National Assembly come next to the Constitution, followed by the laws of the House of Assembly of a State. If any law from any source other than the Constitution itself contradicts any provisions of the Constitution, that other law is to the extent of that contradiction or conflict void and of no effect.”


On the issue of jurisdiction, I hold the view that Justice M. Idris lacks jurisdiction to convict and sentence the defendants in this instant case being a Justice of the Court of Appeal. In Saraki v FRN (2016) LPELR-SC.852/2015, the Supreme Court noted that “the meaning of the word jurisdiction has been accepted – as the authority which a Court or Tribunal has to decide matters presented in a formal way for its decision. Where a Court does not have jurisdiction, there is nothing before it to adjudicate.” In the celebrated case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 the Federal Supreme Court per BairamianFJ held thus:

“…I shall make some observations on jurisdiction and the competence of a court. Put briefly, a court is competent when;

1. It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. The case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Any defect in competence is fatal for the proceedings and a nullity however well conducted and decided; the defect is extrinsic to adjudication.”

From the above we can distill that Justice M. Idris being a Justice of the Court of Appeal is not qualified to sit and preside over a matter as a Judge of the FHC, this has stripped jurisdiction off him and to this extent the entire suit remains a nullity irrespective of how long the suit has lasted in court. Indeed, you cannot place something on nothing and expect it to stand.

We must note that jurisdiction is germane to the existence of any suit. It is the life wire of any matter. Without it, such suit is good as being dead upon its arrival. In Utih & Ors v Onoyivwe & Ors (1991) LPELR-SC.160/1988, the Supreme Court per Bello CJN restated this principle as follows; “moreover, jurisdiction is blood that gives life to the survival of an action in a court of law and without jurisdiction, the action will be like an animal that has been drained of its blood. It will cease to have life and any attempt to resuscitate it without infusing blood into it would be an abortive exercise”

Technicality vis a vis Substantial Justice

Many critics of the SC’s decision premise their reservations on issues of technicality. Howbeit, I believe that the supremacy of the Constitution and jurisdiction of a Court to adjudicate are issues that transcend beyond technicality. In Yusuf v Adegoke(2007) ALL FWLR (Pt. 358) 384 at 417-418, the renowned Tobi JSC on the issue of technicality held that “a technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case.”

Constitutional supremacy and jurisdiction of a court are not abstract or inordinate legalism these are issues that affect the core of our legal system as well as the judicial process. It would be a travesty for the courts to shut its eyes to such issues in a bid to not allow technicality prevail over substantial justice. Indeed the intendment of every law is the attainment of justice, nonetheless I strongly believe that the learned Lords upon their assumption of office took an oath to interpret and apply the law as it is, devoid of any extrinsic factors in order to attain justice. Indeed, substantial justice is justice according to law. In Dibiamaka v Osakwe & Ors (1989) 3NWLR (Pt. 107) Pg. 101 at 114, Oputa JSC stated thus “justice in our Courts is justice according to law…” In MTN Nigeria Communications Ltd v Babayode (2014) LPELR-CA/AK/18M/2013, the Court of Appeal stated thus; “the role of the courts is to apply the principles of substantial justice according to law. The principles cannot be applied outside law or in contravention of the law.” Also, in Akpan v FRN (2011) LPELR-CA/A/132/2010, it was noted that “miscarriage of justice will also arise if what is done is not justice according to law. Where the act or conduct is a departure from the rules which spreads all through judicial process such as to make what has happenednot a judicial procedure allowed to all.


Undoubtedly, the SC’s decision on the conviction of Kalu & 1 ors will have far reaching implications. As far as the development in that case is concerned, section 396(7) of the ACJA, 2015 stands nullified and remains of no effect. Also, any case whose presiding Judge is elevated to the Court of Appeal will be set aside upon appeal. There is no doubt that this development will occasion great delay in the administration of justice. In light of the foregoing, the following recommendations here hereby proffered:

1. The Constitution should be amended to allow for exceptions where Judges who have been elevated to continue and conclude on  partly heard cases just as is contained in Section 396(7) of the ACJA, 2015 so as to avoid delay in the judicial process; or
2. Where a case is partly heard before the presiding Judge is elevated to the Court of Appeal, such Judge should submit the case to the Chief Judge of that High Court for onward transfer to another Judge for continuation and completion. This ACJA, 2015 should be amended to reflect this alternative; and
3. The drafters of our Constitution did not envisage a situation where a Judge has partly heard a case before he is elevated and this accounts for the lacunas that has arisen from this instant case. It is accordingly recommended that our lawmakers should henceforth, be more futuristic in making laws. The draftsman of our laws should look beyond the present circumstances and predict the likelihood of unforeseen circumstances arising and make laws to cover for such circumstances. This would help fill a lot of lacunas and check a lot of unchecked boxes in our laws and our legal system.

Adaji Samuel
Emakoji is a recent law graduate of Kogi StateUniversity, Anyigba. He is passionate about the law and is driven by the zeal to enrich the development of the Nigerian Jurisprudence through his write-ups.



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