Introduction
On Friday, May 8, 2020, the Supreme Court of Nigeria nullified and set aside “the judgement of the Court of Appeal No. CA/L/1064/2018, delivered on 24th April, 2019, particularly in respect of the Appellant and as it affected him…The case no No. FHC/ABJ/CR/56/2007, as it pertains to the Appellant as the 2nd Defendant at the trial court, is hereby remitted to the Chief Judge of the Federal High Court for reassignment to another judge of the Federal High Court for trial de novo”. 
Many Nigerians and readers of my various weekly columns have called me severally to ask of my legal opinion on the legal implications of this pronouncement by the apex court as it concerns Chief Orji Uzor Kalu. They said that Kalu has not still been released on the ground, as argued by the Nigerian Correctional Service (NCS; new and better name for Nigerian Prisons Services), that Kalu is not affected by the judgement, not being, in the words of the Supreme Court, “the Appellant as the second defendant at the trial court”, ie, Ude Jones Udeogu. The argument of the NCS is that Orji Kalu, not being “the Appellant as second Defendant” cannot take benefit of the judgment. I humbly disagree with this position, on grounds of law and judicial precedents.
Nigeria’s system of government
For the records, we operate a constitutional democracy where our laws and conducts, actions and inactions, are governed by due process and rule of law. This is against rule of the thumb. As held by the Supreme Court in GARBA V. FEDERAL CIVIL SERVICE COMMISSION & ANOR. (1988) LPELR-1304 (SC), per Eso, J.S.C.:
“The rule of law knows no fear, it is never cowed down; it can only be silenced. But once it is not silenced by the only arm that can silence it, it must be accepted in full confidence to be able to justify its existence. In Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 this Court expressed its view fully on the essence of the rule of law. Obaseki J.S.C. said- “Once a dispute has arisen between a person and the government or authority and the dispute has been brought before the Court, thereby invoking the judicial powers of the state, it is the duty of the government to allow the law to take its course or allow the legal and judicial process to run its full course.”
Similarly, the apex court has held in THE MILITARY GOVERNOR OF LAGOS STATE & ORS. V. OJUKWU & ANOR. (1986) LPELR-3186(SC), per Obaseki, J.S.C., thus:
“The Nigerian Constitution is founded on the rule of law; the primary meaning of which is that every thing must be done according to law. It means also that government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metwand of law as opposed to the uncertain and crooked cord of discretion’ (see 4 Inst. 41). More relevant to the case in hand, the rule of law means that disputes as to the legality of acts of government are to be decided by judges who are wholly independent of the executive… . The judiciary cannot shirk its sacred responsibility to the nation to maintain the rule of law. It is both in the interest of the government and all persons in Nigeria. The law should be even handed between the government and citizens.”
The significance of the rule of law was further emphasised by the Court of Appeal in OMATSEYE v. FRN (2017) LPELR-42719(CA), where Georgewill, J.C.A. stated:
“Above all and when all is said and done, in law and in every society governed by democratic norms in which the Government is of the people, by the people and for the people, every prosecution, every conviction and every acquittal, must be done within the confines, purview and ambits of the operation of the RULE OF LAW… Under it no man or woman is liable to be punished, except for a breach or infraction of law committed and established before the Courts.”
See also the case of EKANEM v. AKPAN & ORS (2018) LPELR-44036 (CA),
Law and morality
Many people mistake law for morality. Laws are rules that a country or its government mandates its citizens to follow compulsorily for the purpose of maintaining law and order and regulating the entire society. Morality, on the other hand, concerns people’s beliefs which border on their notion of right and wrong, or good and bad behaviour. They are totally different. Sanctions are immediately imposed against those who infringe on the law. The law can also be changed by the Legislature. On the other hand, morality cannot be deliberately changed “just like that”. It evolves slowly, and it is a society, not law, that creates its own morality. Morality is usually more flexible, fluctuating and malleable. Laws and morals do not therefore mean the same thing.
They are incongruous. What is moral may be illegal, and what is legal may be immoral. For example, some religions and societies accept as moral, the marriage of a man to two wives. But, this is considered illegal by the law against bigamy (section 370, Criminal Code), when it involves marriage under the Marriage Act, Cap M6, LFN, 2004. As another example, a poor hungry woman may rush to a bread seller, snatch a loaf of bread and run home to feed her hungry children. This may be considered moral – because it was designed to save the dying children. But it is illegal. It is stealing, pure and simple.
As an opposite example, a court may discharge and acquit a big-time politician or a very wealthy business mogul accused of stealing over 50 billion naira, based on non-availability of evidence to prove the case “beyond reasonable doubt”, as prescribed by the Constitution and section 135(1) of the Evidence Act 2011. Such a discharge and acquittal may be considered immoral by an angry public. But the judgment and the findings of the trial Judge based on the facts and law applicable to the case are legal. See EKPO V INEC & ORS (2013) LPELR-20359 (CA); UCHE V STATE (2015) LPELR-24693 (SC).
In the Holy Bible, Exodus 20:13; Deuteronomy 5:17; Romans 13:9; Matthew 5:21; and in the Holy Quran, Surah Al-Maeda, verse 32 and Surah Al-Isra, verse 33, it is provided that “thou shall not kill”. This is moral. It is also in tune with section 316 of the Criminal Code. However, the same Criminal Code condones murder and grants complete exoneration of a person accused of murder under certain situations: if he can prove insanity (section 28); self-defence and defence of property (section 287); and, involuntary intoxication (section 29). Murder is immoral, but the above sections tolerate it. Indeed, murder can be downgraded and mitigated to manslaughter (a lesser offence) if it was committed under provocation (section 283); accident (section 24) and mistake (section 25).
Having laid the basis of showing that some public opinions based on morality may not necessarily be in consonance with the law, let us now x-ray the Supreme Court decision as it pertains to Chief Orji Uzor Kalu.
The facts of the case
On the 31st of October, 2016, Orji Uzor Kalu, Ude Jones Udeogu and Slock Nig. Ltd were arraigned before the Federal High Court, Lagos. 19 witnesses were called by the Prosecution, with several exhibits tendered. On 28th May, 2019, the Appellant filed a no late submission, to which the Respondent opposed on 17th July, 2018. In the mean time, the trial Judge, Hon. Justice M. B. Idris, had taken his oath of office as a Justice of the Court of Appeal on the 22nd of June, 2019, a position he had been elevated to two days earlier.
On 2nd July, 2018, the then President of the Court of Appeal, Hon Justice Zainab Bulkachuwa, JCA, issued Justice Justice Idris a fiat, purportedly under section 396(7) of the Administration of Criminal Justice Act (ACJA) to continue and conclude the matter “before the end of September, 2018”. Section 396(7) allows a “judge of the High Court who has been elevated to the Court of Appeal” to continue to “have dispensation to continue to act as a High Court judge only for the purpose of concluding any part heard criminal matter pending before him at the time of his election and shall conclude the same within a reasonable time”.
On the 31st July, 2018, Justice Idris dismissed the no case submission. Mr Udeogu (not Orji Kalu) challenged Justice Idris’ competence to continue to hear the matter after the elevation to the court of Appeal. on 24th April, 2019, the court of Appeal dismissed the Appeal, and it did this by seeking to distinguish extant Supreme Court authorities and precedents in OGBUNYINYA E ORS V. OKUDO F ORS (1979) SCC 77 and OURLINE LTD V S.C.C. NIG. LTD F ORS (2009) 17 NWLR (Pt 1170) 383. This, notwithstanding that the Court of Appeal was aware of the above precedents, including that of GABRIEL IYELA V COP (1969) 1 NMLR 180, and SODEINDE V THE STATE (FCA|1b|20|1977). The intermediate court also did this in spite of wholly agreeing with the apex court’s principle laid down in the above cases that a Judge elevated or appointed to a higher court would cease to be a Judge from the court from which he was elevated and would therefore lack the requisite jurisdiction. They agreed that the decisions are “still extant and applicable in appropriate cases”.
The Supreme Court upheld the appeal and annulled the trial as it pertains to Jones Udeogu. Can Orji Kalu then take benefit of this, not being Udeogu? That is the question for determination. Next week, we shall focus on the law, as driven by the above facts.
Thought for the week
“The law is hard, but it is the law.”
(Cassandra Clare)