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The Supreme court was right on Kalu – Lawyer

In 1974/1975, My Lord Nnaemeka-Agu .J. (as he then was) of the old Anambra state judiciary was hearing a trespass to land case between Obianwuna Ogbunyiya & 5 ors v Obi Okudo & ors. The case had proceeded up to judgment when the federal military government in a statement on 15 June 1977 elevated him to the court of appeal. The pronouncement was duly Gazetted.

To ensure the case doesn’t start afresh by reason of his elevation, My Lord ‘came down’, as it were, from his high position and delivered judgment in the case. Dissatisfied, the appellants appealed to the court of appeal contending in the main that Nnaemeka-Agu (now justice of the court of appeal) had no jurisdiction to function as a high court judge when he purportedly delivered the judgment.

In a bold face, the court of appeal dismissed the appeal holding that the Gazette containing the appointment of Nnaemeka-Agu J as a court of appeal justice was not properly tendered in evidence vide the Evidence Act.

Not deterred, the applicants’ further appeal to the supreme court was upheld. The apex court, while taking judicial notice of the Gazette, set aside the decision of the court of appeal and ordered a retrial.

Leading C. Ofodile SAN and Mrs. Nzeakor, Chief F.R.A. Williams SAN appeared for the appellants.
A. Lardner SAN with him G. Ezeuko represented the respondents.

History, they say, has a way of repeating itself.

This morning the apex court set aside the judgement of the court of appeal which upheld the conviction of Senator Orji Uzor Kalu. While ordering a fresh trial, it also set aside the directive of then president of the court of appeal to the elevated judge to go conclude the trial at the high court. The supreme court, therefore, declared as unconstitutional, null and void section 396 (7) of the administration of criminal justice act. ACJA, which empowers a judge to conclude a case he has been handling upon his elevation.

Before this judgment, Chief Awomolo SAN wrote a powerful article published in Thisday newspaper where he argued authoritatively that the practice ordained by ACJA where a judge who is promoted could still go back to his former court and conclude a case he has been handling is contrary to the judicature provisions of the constitution. I had agreed with him intoto.

The economic, psychological, time and manpower implications of this judgment are better imagined. After many years of wasting the scarce resources in prosecution of this case by the federal government and securing what seems like a conviction, the journey is to be begun again albeit through a different path.
The failure and loss of the judiciary is the gain of the embattled Senator.

In conclusion, many of the provisions of the ACJA are as ambitious as they are unconstitutional. By repealing and re-enacting most of the criminal procedure laws that had stalled efficient and speedy trial of criminal cases, the draftsman of the Act went overboard. There’s need for the Nigeria law reform comission and the national assembly to take a second look at the provisions of the Act vis a vis the constitution to avoid a repeat of today’s avoidable judgment.

Ebuka Aneke-Agu esq
Maitama Abuja
8/5/2020

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