The Decision of the Supreme Court in FRN V Orji Uzor Kalu & Anor is Valid, Logical and Commendable– Nkem Okoro, Esq.


Former Governor of Abia State, Orji Uzor Kalu and two others were standing trial for alleged commission of criminal offences, before the Federal High Court presided over by Justice M.B. Idris. In the course of the trial, the trial Judge Justice Idris was elevated to the Court of Appeal.

The trial Judge took his Oath of Office as a Justice of the Court of Appeal on the 22nd June 2018. By the 26th of June 2018, Orji Uzor Kalu through his lawyer applied to the President of the Court of Appeal for fiat, on the basis of section 396(7) of the Administration of Criminal Justice Act, 2015, to enable Justice M.B Idris now a Justice of the Court of Appeal to continue with the trial of Orji Uzor Kalu, despite his elevation.

Shortly after the commencement of the trial, and pursuant to several perceived unfavourable decisions by Orji Uzo Kalu, he filed a motion asking the trial court to recuse itself on the basis of now being a Justice of the Court of Appeal. The trial Court in a considered ruling appreciated the fundamental issues of jurisdiction as raised by the said application, and struck out the application which paved the way for the eventual judgment that sent Orji and co to prison.

Upon further appeal to the Court of Appeal, the Court of Appeal affirmed the decision of the trial court to continue with the trial, despite his elevation to the Court of Appeal. The Supreme Court upon further appeal to it set aside the conviction of Orji Uzor Kalu.

Orji, by himself, applied for the trial judge to continue to hear the matter. It is the same Orji that subsequently challenged the jurisdiction of the trial court to hear the matter on the same reason upon which he had earlier applied for it to hear the matter. Well, this issue, is a question of morality which has no strong persuasion when placed side by side with the provisions of the Constitution, which is the grund norm of the land.

Afterall, parties cannot confer jurisdiction on a court by consent where there is lack of jurisdiction. See the case of ONNA TRADITIONAL RULERS COUNCIL & ORS v. UMOREN & ORS (2018) LPELR-44301(CA),where the Court of Appeal held as follows:

It is trite that where jurisdiction is absent, parties cannot by waiver or consent confer jurisdiction on the Court.” Per OYEWOLE, J.C.A. (P. 15, Para. E)

By the judicial oath of office, as contained in the 7th Schedule to the Constitution, from the 22nd day of June, 2018, when this judex took the oath of office as a Justice of the Court of Appeal, in accordance with the judicial oath in the 7th Schedule to the Constitution, the trial judge ceased to be a judge of the Federal High Court, and also ceased to have jurisdiction to continue to try the charge against Orji Uzor Kalu. The trial judge upon his elevation as a Justice of the Court of Appeal in line with the provisions of section 238(2) of the Constitution, cannot under any guise, continue to sit as a judge of the Federal High Court, in respect of the Charge against Orji Uzor Kalu as was rightly held by the Supreme Court.

Section 396(7) of the Administration of Criminal Justice Act, which the trial court relied on, to continue to adjudicate on the matter, notwithstanding his elevation as a Justice of Court of Appeal, is inconsistent with the provisions of sections 238(2),240, 250(2),253, of the Constitution of the Federal Republic of Nigeria,1999, as altered, and was rightly and lawfully, to the extent of such inconsistency, declared null and void by the Supreme Court in accordance with section 1 (1&3) of the Constitution of the Federal Republic of Nigeria.

It is also important to note that by virtue of sections 239 and 240 of the Constitution of the Federal Republic of Nigeria,1999, as altered, the original and appellate jurisdictions of the Court of Appeal, to which the trial judge was elevated to, does not extend to the hearing of criminal matters, pending before the Federal High Court. Section 239 of the Constitution provides as follows:

“Subject to the provisions of this Constitution, the Court of Appeal shall, to the exclusion of any other court of Law in Nigeria, have original jurisdiction to hear and determine any question as to whether-

any person has been validity elected to the office of President or Vice-President under this Constitution; or
the term of office of the President or Vice-President has ceased; or

the office of President or Vice-President has become vacant.”

Section 240 of the Constitution of the Federal Republic of Nigeria, 1999, as altered, on the other hand, provides as follows:

Subject to the provisions of this Constitution, the Court of Appeal shall have jurisdiction to the exclusion of any other court of law in Nigeria, to hear and determine appeals from the Federal High Court, the National Industrial Court, the High Court of the Federal Capital Territory, Abuja, High Court of a State, Sharia Court of Appeal of the Federal Capital Territory, Abuja, Sharia Court of Appeal of a State, Customary Court of Appeal of a State and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.

In the case of Ogbuanyinya & 5 Ors. v. Obi Okudo (1979) 9 S.C. 32), the Supreme Court held as follows:

“The case was in abeyance during the civil war period and resurfaced thereafter in the High Court of Anambra State in 1976 before Nnaemeka-Agu, J. (as he then was), with 1st and 2nd defendants reported dead. Nnaemeka-Agu, J. (as he then was) delivered judgment, which was incompetent as he was then functus officio, having been appointed sometime in 1977 to the Federal Court of Appeal. The Supreme Court set aside the judgment. and remitted it for trial de novo (see Ogbuanyinya & 5 Ors. v. Obi Okudo (1979) 9 S.C. 32).”

In the case of Alhaji Ahmed Garba Bichi & Ors V Alhaji Ibrahim Shekarau & Ors,(2009)LPELR-3874 (CA), the Court of Appeal held that once a judge is elevated to the intermediate court, and takes the oath, such a judge cannot continue to sit as a judge of the lower court. The trial judge lost the toga of being a Judge of the Federal High Court, and the Supreme Court was right in setting aside its judgment on the basis of lack of jurisdiction, and sending the case back to the Chief Judge of the Federal High Court, to reassign this matter to another judge of the Federal High Court, for trial de novo.

Nkem Okoro, Esq. is a Constitutional Lawyer and Human Rights Activist.

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