* Our criminal justice system fatally wounded

* Corrupt public officers granted open cheque to loot with impunity



By Prof Itse Sagay

Chairman, Presidential Advisory Committee Against Corruption (PACAC), Prof Itse Sagay (SAN) writes that the Supreme Court did not consider the justice of the case in its judgment on the appeal by Ude Jones Udeogu. The highest court ordered the appellant’s retrial.

The Supreme Court, the Apex Court, the last bus stop, is supposed to establish a profound code of conduct for social behaviour and interaction between man and man, man and society and man and government itself. Its judgments are expected to be the embodiment of the highest values in the nation’s social and political culture. Its duty is to raise the standards of our collective conduct to a high level of civilization and social responsibility and discipline. Above all, based on its duty to promote an enhanced level of social conduct, responsibility and a sense of right and wrong, in the polity, it has a duty to do justice in all cases. The Court must always ask itself this paramount and overriding question when any matter is brought before it for adjudication; namely: “Where is the justice in this case?” Justice must always prevail over technicality. This has been a long principle of the Supreme court until the very recent years.

The paramountcy of justice over technical law was emphasised as recently as 2007 by the Supreme Court in Amaechi vs. INEC [2008] 10 WRN 1] where Oguntade, JSC, adopted this timeless passage in the judgment of the late, great Kayode Eso in Engineering Enterprise Contractor of Nigeria vs. Attorney-General of Kaduna State, ([1978] 1 N.S.C.C. 601 at 613):

One stream that permeates all these decisions and I hold the view that this is a good sign for the administration of justice in this country, is the clear, unadulterated water filled with great concern for the justice of the case. The signs are now clear that the time has arrived that the concern for justice must be the overriding force and actions of the court. I am not saying that ex debito justiciae by itself is a cause of action. It is to be the basis for the operation of the court, whether in the interpretative jurisdiction or basic attitude towards the examination of a case.

The sum total of the recent decisions of this court is that the court must move away from the era when adjudicatory power of the court was hindered by a constraining adherence to technicalities. This often results in the loser in a civil case taking home all the laurels while the supposed winner goes home in a worse situation than he approached the court.

Still on the issue of the court’s new guiding philosophy, Oguntade, JSC further declared that the Supreme Court and indeed all courts in Nigeria had a duty which flowed from a power granted by the Nigerian Constitution to ensure that citizens of Nigeria, high and low, get the justice which their case deserves. He continued thus:

This court and indeed all courts in Nigeria have a duty which flows from a power granted by the Constitution of Nigeria to ensure citizens of Nigeria get the justice which their case deserves. The powers of the court are derived from the constitution not at the sufferance or generosity of any other arm of the Government of Nigeria. [2008] 10 WRN 1 at 114 – 5.

The case of Udeogu & Others vs. The Federal Republic of Nigeria (SC 662C/2019), commenced in 2007 and was not finally concluded until 2019 – 12 years later. The Supreme Court reversed the conviction of the High Court arrived at, after all of 12 years, on the ground that the trial Judge had no jurisdiction? The substance of the judgment and its correctness was not queried or questioned. The Court simply brought out an obscure technicality to upset 12 years of solid, painstaking work towards eradicating corruption from our public life. And what was the Court’s justification? That the trial Judge was disqualified from trying the case after his promotion to the Court of Appeal. He was, said the Supreme Court, no longer a judge of the High Court after his promotion. He should not have gone on to conclude the 99 per cent concluded case, because of his promotion.

However, the promotion of a High Court Judge towards the tail end of a criminal/corruption case had in the past resulted in starting a case de novo (afresh) before a new judge, and the whole process of taking the witnesses, tendering exhibits, etc, repeated again – all making the case drag on forever, creating prosecution fatigue, and resulting in an untidy status of “not guilty, not acquitted” for the accused, clearly an unknown status in criminal justice. The case of a well-known banker has been crawling from judge to judge since 2009 because of these judicial promotions resulting in an endless snake and ladder effect. The case climbs up the ladder to within an inch of the end and is dragged down by the snake to commence afresh before another Judge.

Fortunately, the Seventh National Assembly appreciated this destructive blight on our Criminal Justice System and in 2015, passed a Law deliberately targeted at eliminating it from the System. By subsection 396(7) of the Administration of Criminal Justice Act, 2015:

(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 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.

Based on that subsection, High Court judges who were promoted to the Court of Appeal have been returning to the High Court to conclude their criminal cases since 2015. It has provided a great relief and bounce to our criminal justice system, giving it credibility and creating a deterrence on public officers who are inclined to loot our common patrimony and thereby sentencing millions of Nigerians to misery and poverty.

On Friday 8th May 2020, the Supreme Court put an end to all that by holding that this major relief provided by the National Assembly against the stranglehold of public corruption was a nullity, because it was inconsistent with Section 253 and some other provisions of the Constitution and some existing laws. And what does Section 253 say?

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

There is absolutely no reference in the Constitution to the position of a promoted judge going back to the High Court to complete a 90 per cent heard corruption case in order to enable litigation to come to an end. The provision in S. 253 is simply intended to establish that unlike the Court of Appeal and the Supreme Court, a High Court can be constituted by a single judge. No more no less.

How can the highest court of the land, spring out a technicality to inflict such a terrible wound on our criminal justice system? Should the Supreme Court not be using all its knowledge, power and authority to ensure that looters of public funds be brought to justice? Should the Supreme Court not use all its intellectual resources to promote transparency, accountability, integrity in public life and punishment for crimes against the people? What message was the court sending out to the Nigerian public and the world by employing a technicality to save those convicted of financial crimes against the nation and people of Nigeria?

This decision is contrary to the mission of the Supreme Court in Nigeria as defined earlier. It has clearly led to injustice.

It flies in the face of what the Court stands for and is in direct conflict with the position of the great Justices of this very Supreme Court in an era now nostalgically referred to as the “Golden Age” of the Supreme Court.

The following passage from the judgment of Eso, JSC, in The State vs. Gwonto (1983) 1 SCNLR. 142 at 160, lucidly conveys the kernel of the principle.

The court has for some time now laid down as guiding principle that it is more interested in substance than in mere form. Justice can only be done if the substance of the matter is examined. Reliance on technicalities leads to injustice.

And in the earlier case of Chinwendu v. Mbamali, (1980) 3-4 SC 31, the same learned Justice declared:

Care must be taken always, not to sacrifice justice on the alter of technicalities. The time is no more, when disputes are dealt with rather on technicalities and not on merit.

This general theme of placing justice above technicalities was noticeable in the practice of the Supreme Court right from the early days of the 1979 Constitution. Thus, in Okeowo v. Migliore, (1979) 11 SC 138, Aniagolu, J.S.C. declared:

The laws of our land enjoin us that while respecting procedural regularity, we must do substantial justice, with power to make amendments which we deem fit or not to make as the occasions demands.

The Supreme Court we knew, had always been determined to provide a remedy based solely on the justice of the case. In Bello v. A-G of Oyo State, [1986] 5 NWLR (Pt. 45) 828, a man was sentenced to death by the High Court of Oyo State for Armed Robbery. Whilst his appeal to the Court of Appeal was still pending, he was executed by the Oyo State Government. Brazenly, Oyo State admitted executing the prisoner, but argued that under the laws of Oyo State, the relations of the executed man had no remedy. The response of the Supreme Court was befitting of its status in the society and polity. It held as follows:

It was contended that invoking the general principle ubi ius ibi remedium is a clear demonstration that appellants have left the Court at large to devise a remedy. I have already stated that the writ of summons and the statement of claim sufficiently disclose that the claim can be founded under the Torts Law. Even if this is not the case, I think the Court has attained a stature in the pursuit of justice that a claimant who has established a recognised injury cannot be turned back on the ground that he has not stated the head of law under which he was seeking a remedy. (at p. 876)

In Josiah v. The State, [1985] 1 NWLR (Pt. 1) 125, decided in 1985, the Supreme Court made it clear that in a criminal trial, justice consists of a “three-way traffic.”

According to Oputa, JSC:

In deciding whether to allow the appeal and acquit and discharge an appellant, the court must consider the surrounding circumstances in the interest of justice. Any order allowing this appeal and also acquitting and discharging the appellant will not be an order made in the interest of justice. And justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic – justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, “whose blood is crying to heaven for vengeance” and finally JUSTICE FOR THE SOCIETY AT LARGE – THE SOCIETY WHOSE SOCIAL NORMS AND VALUES HAD BEEN DESECRATED AND BROKEN BY THE CRIMINAL ACT COMPLAINED OF. It is certainly in the interest of justice that the truth of this case should be known and that if the appellant is properly tried and found guilty, that he should be punished. That Justice which seeks only to protect the appellant will not be even handed justice. It will not even be justice tempered with mercy. (At pp. 141 -1) (Emphasis mine).

Can it be justifiably asserted that justice was done in this Udeogu case? Was justice done to the Nigerian society whose social norms and values have been desecrated and broken by the criminal act complained of; whose patrimony has been looted to the detriment of the welfare of the public? The answer is a big NO! (Please note, the merits of the guilty conviction were not contested or questioned).

At the high level of the Supreme Court, against whose judgments there can be no appeal, it is mandatory that the Justices must consider the consequences and impact of their judgments, in order to avoid public injury, and sending the wrong message to potential violators of critical social norms. It is alright for a lawyer fresh from the Law School or a young newly appointed judge to indulge in 2 + 2 equals 4 type of judgment. As he gains experience and progresses up the ladder of authority, he must add the norms and values of society to his judgments. At that level, a judgment must be based on justice, merit, not on technicalities.

All the legal justifications adduced for this shocking decision hold no water. Section 238(2) of the Constitution which deals with the powers of the President to appoint a Judge of the Court of Appeal is irrelevant to this case. Nothing in the case at the High Court level contradicted that authority.

The same applies to Section 250(1) of the Constitution dealing with the appointment of the Chief Judge of the Federal High Court. Section 290 deals with the declaration of assets by Judicial Officers. How does that apply to a newly promoted Court of Appeal judge going to the High Court to complete a case 90 per cent completed, in order to spare the public the pain of another 12 years of judicial rigmarole over its grossly violated norms and values?

Section 396(7) of ACJA was intended by the National Assembly to eliminate a major obstacle to the administration of criminal justice in Nigeria. Should the Supreme Court be seen to be hostile to such a major salutary progress in our legal system? Should the Highest Court be an obstacle to a smooth and effective operation of our legal System?

Also many passages of the judgment were devoted to various sections of the Federal High Court Act, 1915, which Sub-section 386(7) of the Administration of Criminal Justice Act, was supposed to have breached. But since the National Assembly is empowered to enact laws (Acts), they have the power to override any earlier Act made by them. The Federal High Court Act is an ordinary Act that can be made and unmade by the National Assembly. So, the purported breach of the Federal High Court Act is of no consequence. The maker of a law can alter or even revoke it. The later law prevails over the former, including contrary judgments of all courts.

Section 396(7) of the ACJA did not breach any section of the Constitution because there is no section of the Constitution prohibiting a newly promoted judge from completing a case he has almost completed at the High Court. Such learning exhibited by the court should have been directed towards the opposite end.

Deliberately or unconsciously, the Supreme Court has now thrown this Country into an Ariori v. Elemo ([1983] 1 SCNLR 1 at 15) situation in which a case lasted for 26 years in the High Court without being resolved. It is clear from this decision that the possibility of ending the Udeogu (Orji Uzor Kalu) case is effectively zero. It is effectively over.

Public officers with corrupt tendencies will feel encouraged and will develop a sense of impunity. Our criminal justice system may have been fatally wounded.

As I have already stated, a court at the high level of the Supreme Court has a duty to consider the consequences of its judgments before delivering them.

In 2015, the Supreme Court decided in Peterside & Ors. v. INEC & Ors. (S.C. 1002/2015) to discard the accurate record of the smart card reader which showed that only 293,072 people voted in the Rivers State governorship election and preferred the unreliable, corruptible voters register which recorded over a million votes.

In 2019, the Court cancelled the victory of the APC at governorship and House of Assembly levels in Zamfara State and handed over victory to the PDP which lost hopelessly to the APC at the polls.

This year, the same feat was repeated for Bayelsa State where the Supreme Court nullified the overwhelming victory of the governorship candidate of the APC and handed over the governorship to the defeated PDP candidate, on the flimsy ground that the deputy governorship candidate of the APC had several identities.

Thus, as a result of the Supreme Court’s judgment, Zamfara and Bayelsa states are currently being ruled by a party that was massively rejected by the people of those states at the polls. And now we are lumped with this Udeogu (Kalu) matter.

One common thread running through all these cases is failure to consider outcome and the justice of the case and total reliance on pure technicalities, to drown the justice of the case. This has created dark clouds over the fate and future of our judicial system in Nigeria.

Nigerians must reflect deeply about this appalling threat to its justice system. Judgments at the level of the Supreme Court must not be whimsical. They must be predictable by the application of the simple test: “where does the justice of the case lie in this matter”?