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Senior Advocate of Nigeria, SAN, Femi Falana has argued that judges of Appeal Court are constitutionally empowered to hear matters of high court.
Abia North Senate representative, Orji Uzor Kalu, his firm, Slok Nigeria Limited, and former Director of Finance in Abia State, Jones Udeogu were in December convicted and sentenced by Justice Mohammed Idris of the Federal High Court in Lagos for a N7.1bn fraud.
But the supreme court on Friday, contrary to erroneous reports the Abia senator was released, only set aside the appeal of his co-defendant, the former finance director in Abia, Udeogu on the grounds that the trial judge, Justice Mohammed Liman, was no longer a judge of the Federal High Court as at the time he sat and delivered the judgment that convicted the defendants for allegedly stealing about N7.1bn from Abia State treasury.
Justice Ejembi Eko, who delivered the lead judgment also declared as unconstitutional the provision of section 396(7) of the Administration of Criminal Justice Act, 2015, on which the then President of the Court of Appeal, Justice Zainab Bulkachuwa (retd), relied on to authorise Justice Idris to return to the Court of Appeal to conclude the trial. The apex court therefore directed the Chief Judge of the Federal High Court to assign the case to another judge of the court for the trial to commence afresh.
The Cable reports that Kalu, who has appealed his own conviction up to the apex court, will get his own judgment separately — but it is not expected to be different from Udeogu’s.
However, Falana, in an article released on Tuesday, countered the supreme court judgement declaring as unconstitutional the provision of section 396(7) of the Administration of Criminal Justice Act, 2015, on which the then President of the Court of Appeal, Justice Zainab Bulkachuwa (retd), relied on to authorise Justice Idris to return to the Court of Appeal to conclude the trial, and argued that acts of both supreme and appeal courts made provisions to allow its justices to exercise powers of the trial courts in such matters.
The human right activist noted: “Whereas section 396 (7) of the ACJA permits a Justice of the Court of Appeal to conclude a part heard criminal matter in the high court section 16 of the Court of Appeal Act empowers the Justices of the Court to exercise the powers of a trial court as if the proceedings had been instituted in the Court of Appeal as a Court of first instance. In the same vein, section 22 of the Supreme Court Act has vested the Justices of the Court of the apex court with the powers of a trial court as if the proceedings had been instituted in the Court as a court of first instance.
“Pursuant to section 22 of the Supreme Court Act the Justices of the apex court ‘… shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Supreme Court as a court of first instance and may rehear the case in whole or in part or may remit it to the court below for the purpose of such rehearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court.’ Similarly, the Court of Appeal has been empowered by Section 16 of the Court of Appeal Act to rehear a case and exercise all the powers of a judge of the high court in determining any appeal.
“Thus by virtue of section 22 of the Supreme Court Act and section 16 of the Court of Appeal Act both appellate courts are permitted by the National Assembly to jettison the judgments of high courts and rehear the cases as if they were filed in both courts as courts of first instance. In the process, the Justices of both appellate courts are allowed to grant interim or interlocutory orders of injunction and conduct trials like judges of the high court and deliver their judgments in accordance with the Rules of Procedure of the court of first instance.
“Going by the authority of Ude Jones Udeogwu v FRN the powers conferred on both the Supreme Court and the Court of Appeal to rehear cases like courts of first instance are illegal and void since sections 233 and 240 (1) of the Constitution have limited the powers of both appellate courts to hear and determine appeals from lower courts. But if the law that empowers the Justices of the Supreme Court to sit like a high court and rehear a case in its entirety is not unconstitutional why should it be unconstitutional for a Justice of the Court of Appeal to return as a high court judge to conclude a part heard criminal matter?
“As the Constitution has limited the powers of the appellate courts to hear and determine appeals arising from the decisions of lower courts are we to believe that the National Assembly violated the Constitution when it conferred the powers of a high court judge on the Justices of the appellate courts? In other words, can section 16 of the Court of Appeal Act and section 22 of the Supreme Court Act be said to be constitutionally valid in view of the decision of the Supreme court in the case of Ude Jones Udeogu v FRN (supra)?”
The senior advocate of Nigeria further said the desire of the federal legislators to halt the frustration of the prosecution of corruption cases by members of the ruling class has been defeated.
He said since the fiat given to Idris to conclude the case was declared illegal and quashed by the supreme court, he has searched in vain for any constitutional provision that empowers the heads of the appellate courts to authorise serving judges of the court of appeal and the supreme courts to preside over judicial commissions of inquiry instituted by state governors.
Falana therefore opined that the constitution should be amended to confer powers on heads of courts to second judges to serve in judicial tribunals and in courts outside the country.
