Tuesday, 12 May 2020

Why Orji Uzor Kalu Is Yet To Be Released From Prison After Supreme Court's Verdict

Ex Abia State Governor Orji Uzor Kalu has not been released from Kuje Correctional Centre because Friday’s Supreme Court judgment does not affect him.

The apex court did not issue any order for the release of the Senate Chief Whip because he did not file any application for such.

He was a respondent (defendant) in the matter before the Supreme Court alongside Federal Republic of Nigeria and Slok Nigeria Limited.

The judgment only covered the appellant, Mr. Ude Jones Udeogu, who challenged the propriety of a Court of Appeal, Justice Mohammed Idris, to try him.

Udeogu claimed that former President of the Court of Appeal Justice Zainab Bulkachuwa, lacked the powers to issue a fiat to any appellate judge to try him.

He also alleged that Bulkachuwa erred in law to issue a fiat under Section 396(7) of the Criminal Justice Act, 2015 which was a non-existing law.

The Comptroller-General of Nigeria Correctional Service, Mr. Ja’afar Ahmed, has also refused to release Kalu because there was no order from the Supreme Court.

It was learnt, Kalu may have to approach the Court of Appeal, where he has a pending matter, to ask for his release following the dismissal of the judgment of the Federal High Court, Lagos by the Supreme Court.

On Monday, a team from the Economic and Financial Crimes Commission (EFCC) was at the Correctional Centre (Prison) to check the status of Kalu and monitor the situation.

Kalu was put on trial for alleged N7.65 billion alongside his company, Slok Nigeria Limited and Ude Udeogu, who was Director of Finance and Accounts at the Abia State Government House when he was governor.

The former governor was jailed for 12 years and Udeogu was convicted and sentenced to a 10-year imprisonment.

But Udeogu challenged the propriety of a judge of the Court of Appeal presiding over his trial and conviction.

His battle ended at the Supreme Court on Friday where his conviction was nullified because his trial was faulty.

According to a copy of the judgment \, the Supreme Court clearly stated that the judgment relates only to the appellant.

Those who heard and decided Udeogu’s application were Justices Olabode Rhodes-Vivour; Mary Ukaego Peter-Odili; Olukayode Ariwoola; Kudirat Motonmori Olatokunbo Kekere-Ekun; John Inyang Okoro; Amina Adamu Augie and Ejembi Eko.

Delivering the lead judgment, Justice Eko said: “I hereby allow this appeal. Section 386(7) of the Administration of Criminal Justice Act (ACJA), 2015 is in my view, an unnecessarily gratuitous legislative interference with, intrusion into or an outright usurpation of the appointing powers of the Executive arm consigned specifically to the President of the Federal Republic of Nigeria by the Constitution in Sections 250(1) and 238(2) thereof.

“The ‘Fiat /permission’ issued on 2nd July, 2018, by the President, Court of Appeal to the Honourable, Justice M.. B. ldris, JCA to proceed to the Federal High Court, Lagos and conclude the part-heard .criminal matter: FHC/ABJ/CR/56/07-, notwithstanding the fact that the Honourable, Justice M. B. Idris, JCA, upon his elevation to the Court of Appeal had ceased, not only to be a judge of the Federal High Court but also to have and exercise the powers and jurisdiction of the Federal High Court,  is ultra vires Sections 1(2)(a) and 19(3) and (4) of the Federal High Court Act, the same being an outright usurpation of the powers of the Chief Judge of the Federal High Court.
Read Also: N7.65bn fraud: Supreme Court voids Orji Kalu’s conviction

“The said FIAT/permission, issued without any lawful or constitutional authority and being a nullity, is hereby set aside. AII steps, including actions, proceedings and decisions and orders issued, taken and/or conducted pursuant to the said FIAT/Permission dated 2nd July, 2018 as they pertain to and relate to the Appellant(Ude) herein are hereby set aside. The judgment of the Court of Appeal\ No. ‘CA/L/1064C/2018, delivered on 24th April 2019, particularly in respect of the Appellant and as it affected him is hereby set aside.

“The case No. FHC/ABJ/CR/56/2007 as it pertains or relates to the Appellant as the 2nd Defendant at the trial court, is hereby remitted to the Chief Judge of Federal High Court for re-assignment to another judge if the Federal High Court for trial de novo. Appeal allowed.”

The Supreme Court also made some clarifications on why it nullified the trial and conviction of Udeogu.

The judgment added: “The President of the Court of Appeal does not have any powers in .law to direct any Judge of the Federal High Court to hear and determine any matter pending before the Federal High Court.

“He also lacks powers to issue any fiat/permission to any Judge of the Federal High Court to conclude any part heard matter pending in that Court. The Chief Judge of the Federal High Court is by Section 1(2)(a) of the Federal High Court Act the sole statutory authority vested overall control and supervision of the administration of the ‘Federal High Court’. The President of Court of Appeal does not share in that function.

“The appellant submits, and I agree, that the President of the Court of Appeal is not recognised by both the ACJA,  2015 and the Federal High Court Act as the appropriate  authority to exercise any powers pursuant to the provisions.”

It said: “My Lords, let us examine Section 396(7) ACJA 2015 in the prism of the internal affairs or workings of the two courts-the Federal High Court and the Court of Appeal.

“For as long as the judge remains the Judge of the Federal High Court, only the Chief Judge has the vires and powers to issue fiat directing him to conclude part-heard matters pending in that court. He cannot grant a fiat to a Justice of the Court of Appeal to conclude part-heard matters pending before the Federal High Court at the time of the latter’s elevation to the Court of Appeal

Section 19(3) & (4) d the Federal High Court Act. Cap F12 LFN 2010 clearly  consign the prerogative of assigning any judicial function to any Judge of the Federal High Court in respect of a particular cause or matter to the Chief Judge at the Federal High Court.

The President of the Court of Appeal is not empowered to share that statutory function with the Chief Judge of the Federal High Court.

The apex court also faulted Section 396(7) of ACJA as inconsistent with the 1999 Constitution

The enactment of Section 396(7) of ACJA, 2015 is an attempt by the National Assembly, in view of this Court’s interpretation of Section 254(1) of the 1979 Constitution which is reproduced as the substantial part of Section 290(1) of the 1999 Constitution, to whittle down the operation of the said provisions of the Constitution.

“Ab initio, Section 396(7) of the ACJA, 2015 was set out to frontally contradict and challenge the letters, substance and spirit of Section 290(1) of the 1999 Constitution.

“To that extent Section 396 (7) of the ACJA, 2015 is inconsistent with the Constitution, particularly Section 290( 1) thereof. Therefore, by operation of Section 1(3) of the Constitution, Section 396(7) of the ACJA, 2015, to the extent of its inconsistency with Section 290(1) of the Constitution is void.”

On why the Comptroller-General of Nigeria Correctional Service has refused to release Kalu, a  source said: “Kalu is still at our Correctional Centre in Kuje because there was no enrolled order from the Supreme Court to release him.

“There are no words from the Supreme Court but the judgment was clear on Ude Udeogu. We will not release him until there is an order from a competent court.”

The source added that: “The team was at the prison yard to monitor the latest development on the actual order of the Supreme Court and compliance. The visit was also to clarify a few things.

“The team discovered that Kalu was still in the prison yard until otherwise ordered by a court of competent jurisdiction.”

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