Kalu, GTBank: A Tale Of Two Judgements By Onikepo Braithwaite
Supreme Court: Orji Kalu v EFCC
I don’t know whether to say, as we say in Hausa, ‘Na sha mamaki’ (I was amazed)! or in Yoruba slang, ‘giri gbe mi’ (literal- convulsion carried me; I convulsed; slang – I was shocked) – because these days nothing really should be shocking; there do not seem to be any boundaries or limits to questionable behaviour. I read in the news that Senator Orji Kalu had asked the Federal High Court to strike out his name and that of his company from the N7. 1 billion fraud charge filed against them by the Economic and Financial Crimes Commission (EFCC), and not recharge him; and the court found in his favour! How absolutely bizarre.
Though I have not had the benefit of reading the full judgement of the Federal High Court per Inyang Ekwo J. in this case, I read the highlights of it, and I must say that I disagree with the argument raised on behalf of Senator Kalu and the judgement.
You will recall that sometime in 2020, in Appeal No. SC 622C/2019 Ude Jones Udeogu & Ors v FRN (Kalu’s case), the Apex Court declared Section 396(7) of the Administration of Criminal Justice Act 2015 (ACJA) whose purpose is to make the wheels of justice roll faster, by allowing a Judge who has been elevated to a higher court, complete his/her part-heard criminal matters, null and void, because it is inconsistent with the Constitution (particularly Sections 250 & 290 (1) thereof) (See Section 1(3) of the Constitution). Justice M.B. Idris had been elevated to the Court of Appeal, when he was given a Fiat by the then President of the Court of Appeal to complete the hearing of the Kalu’s case. The Apex Court found that Idris JCA was no longer clothed with the jurisdiction to hear the matter, since he was no longer a Judge of the Federal High Court. It is trite that no matter how well-tried a matter is, if the court lacks the requisite jurisdiction to hear it, the proceedings are null and void ab initio, and of no effect.
See the cases of Madukuolu v Nkemdilim 1962 2 S.C.N.L.R. 341; Obasanjo v Yusuf 2004 9 N.W.L.R. Part 877 Page 144 at 233 per Niki Tobi JSC. It is also trite that it is the Constitution (and enabling Statute) that confers a court with the requisite jurisdiction, and not the President of the Court of Appeal, the Head of any court or by the agreement of the parties to the action.
In short, on the basis of the nullification of Kalu’s case, Senator Kalu’s conviction (and that of the other parties), and his sentence to 12 year’s imprisonment is null and void and of no effect, since the court lacked jurisdiction to complete the matter from the time Baba Idris J. was elevated. Senator Kalu was therefore, released from prison.
Analysis of Section 36(9) of the Constitution
Fast forward to now, when the Federal High Court upheld the argument of Senator Kalu’s counsel based upon Section 36(9) of the Constitution which provides thus:
“No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”. I humbly submit that, this constitutional provision is inapplicable in this case for several reasons.
Firstly, Senator Orji Kalu, cannot be said to have been convicted. It has been established that the court that completed the trial of Senator Kalu and Others lacked jurisdiction, and became incompetent/improperly constituted when the trial Judge was elevated to the Court of Appeal. Also see National Bank v Shoyoye 5 S.C.Page 181 at 191; Gafar v Government of Kwara State 2007 4 N.W.L.R. Part 1024 Page 375 at 411.
Secondly, due to this lack of jurisdiction, since the trial was nullified, the conviction of the Defendants in Kalu’s case was also nullified and of no effect. This means that the conviction does not exist (Senator Kalu and Others, were obviously not acquitted).
Therefore, this matter does not qualify as the one referred to in Section 36(9) of the Constitution, that the Defendants are being tried again for the same offences, or offences with the same ingredients that requires the order of a superior court to proceed, since the initial conviction has been declared null and void, and it is therefore, non-existent.
According to Black’s Law Dictionary, 6th Edition “Null” means ineffectual, nugatory, having no legal force or binding effect….”. In the online Merriam-Webster Dictionary, the definition of null and void is: ‘having no force, binding power, or validity’; Dictionary.com: ‘Cancelled, invalid, ineffective’. In UAC v Macfoy 1961 All E.R. 1169, Lord Denning held that a nullity in law is a void act; an act which has no legal consequence. The act is not only bad, but is incurable bad”. In Adefulu v Okulaja 1996 9 N.W.L.R. Part 475 Page 668 at 693, “Null and Void” was also defined as “that which binds no one or is incapable of giving rise to any rights or obligations under any circumstances, or that which is of no effect…..” – per Ogundare JSC. “When a judgement or order is a nullity, it is as if it was never made” – Adefulu v Okulaja (Supra).
This is the exact same fate suffered by Kalu’s case. The nullification of the case, automatically gave rise to Senator Kalu’s release; the order of conviction was never made; he was not bound by the purported conviction and sentence, because they were of no effect. Also see the case of Ugba v Suswan 2014 14 N.W.L.R. Part 1427 Page 264 at 317 per Onnoghen JSC (as he then was).
The last part of the provision in Section 36(9) of the Constitution, that a consequential order is required, would also be inapplicable were the EFCC to start the trial de novo before a new Judge, seeing as for instance, the requirement that a person must be convicted or acquitted have not been fulfilled, as by virtue of the law, neither occurred in this case. Whether the Supreme Court mentioned the name of Orji Kalu or his company or not in their decision, are neither here nor there, and go to no issue. Mr Kalu and his company, Slok Ltd, were co-Defendants in the matter which was nullified.
What is required in a case like this which was declared a nullity because of lack of jurisdiction, is for the Chief Judge of the Federal High Court to reassign the case to a new Judge to start the trial de novo; in this case, no consequential order is required. “When an appellate court nullifies a judgement, as for want of jurisdiction or for any other cause, the case is not commenced de novo by the filing of a new writ of summons etc. What is commenced de novo is the trial. The original writ of summons and the pleadings (when they are not tainted with similar fatal defects) are unaffected by the pronouncement of nullity” – see Utah v Independent Brewery Ltd (1974) 2 S.C. 7 – per Ogundare JSC in Adefulu v Okulaja (Supra). The pleadings in the matter had already been concluded in Baba Idris J’s Federal High Court; and all that is required is for a new trial to commence before a new trial Judge of the Federal High Court. The fact that the matter was declared a nullity, does not necessarily mean that the pleadings are bad.
GTB v Innoson
However, the situation in Kalu’s case must be distinguished from one in which the decision was made in error, like that of Appeal No. SC/694/2014 GTB v Innoson. An erroneous judgement, which could be erroneous in law or in fact, is one that can be appealed, in order to correct the error by setting it aside. See the case of Ugba v Suswan (Supra).
The Apex Court had mistakenly dismissed GTB’s appeal in that case for lack of diligent prosecution, because the Court Registry had failed to bring to the attention of the Court that GTB had already filed its Appellant’s brief of argument. Order 8 Rule 8(4) of the Supreme Court Rules 2015 provides that an Appellant whose appeal has been dismissed under Order 8, can bring a motion applying for the appeal to be restored, and such motion may be granted if exceptional circumstances are shown. In this case, the fact GTB’s brief of argument had already been filed, shows that the Bank was prosecuting its appeal diligently. In Iteogu v LPDC 2018 LPELR-43845 (SC) the Apex Court held that it has the discretion to set aside its own judgement in exceptional circumstances -1) where the judgement was reached per incuriam (without due regard to the law or facts); 2) where the judgement is erroneous in law; and 3) where the previous judgement is contrary to public policy or occasioning a miscarriage of justice or perpetuating injustice.
Giving a decision based upon an erroneous premise, certainly occasioned a miscarriage of justice on the part of the Bank, visiting the mistake of the Supreme Court Registry on a litigant, thereby depriving the Bank of its right to fair hearing guaranteed by Section 36(1) of the Constitution. See the case of John Andy Sons & Co. Ltd v Mfon 2006 12 N.W.L.R. Part 995 Page 461 at 481-482 per Omokri JCA. The GTB matter was not dismissed having been heard the case on its merits, that is, having determined the legal rights of the litigants, but, for an alleged breach of procedure or practice. Ordinarily, if a matter is dismissed, litigants can no longer go to court on the same matter, as they can do when it is struck out. They go on appeal. Dismissing a matter means that a properly constituted court went into the merits of the case, before dismissing it. When this is not the case, possibly the matter should be struck out instead. See the case of Oloriode v Oyebi 1984 1 S.C.N.L.R. Page 390 at 400 per Irikefe JSC (as he then was).
In this circumstance, the matter was before the final court of the land, from which there is no appeal, but there can be a review in limited circumstances. See Order 8 Rule 16 of the Supreme Court Rules and Iteogu v LPDC (Supra). The Apex Court was correct to restore the matter in this case to serve the interest of justice. The Apex Court was right to restore the matter, in the interest of justice.