THE LEGAL IMPLICATIONS OF THE SUPREME COURT’S NULLIFICATION OF THE CONVICTION OF UDE JONES UDEOGU AS IT PERTAINS TO ORJI UZOR KALU
BY: CHIEF MIKE A. A. OZEKHOME, SAN
On Friday, 8th May, 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. See Wade on Administrative Law 5th Edition p. 22-27. That is the position in this country where the judiciary has been made independent of the executive by the Constitution of the Federal Republic of Nigeria 1979 as amended by Decree No. 1 of 1984 and No. 17 of 1985. 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. It is a concept in which the citizen is entitled to the observance of the principles of natural justice in the determination of any question involving his rights and obligations under the law…The concept of rule of law finds easy expression in the term “justice”, which must not only be done at all times but must be seen as having been done. It abhors injustice to anyone. It is thus a recipe for justice for all. It propagates the notion of equality of all before the law without regards to social status, official position, education or wealth.”
See also the case of EKANEM v. AKPAN & ORS (2018) LPELR-44036 (CA), where SAULAWA, J.C.A.
“[B]efore placing the very last dot to this judgment, I have deemed it expedient to reiterate the trite doctrine, that the judiciary has an onerous duty to preserve and uphold the sanctity of the rule of law despite all odds. As aptly asserted by the Supreme Court: 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 the citizens. See GOVERNOR OF LAGOS STATE VS. OJUKWU  1 NWLR [Pt. 18] 621, per Obaseki, JSC [of most blessed memory], in his notorious eloquent characteristics.”
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.
The law is that if co-accused persons (Udeogu and Kalu) were to have different presentations and evidence led in proof of the charge against them, then the discharge of Udeogu may not necessarily lead to the discharge of Kalu. The Supreme Court put it thus in YUSUF v. FRN (2017) LPELR-43830 (SC), per Peter-Odili, J.S.C:
“It has to be noted that it is not in every case where an accused is tried jointly with another that the discharge of the one must lead to the discharge of the other as the appellant is pushing forward, as it is the law that when the evidence against one accused is different from that against the other, a different conclusion will certainly arise at which one may be discharged and the other convicted. Each case is considered on its own merits and as happened in this particular case, the appellant seemed to have been soul of the fraudulent transaction and he was well tied up by overwhelming evidence which cannot be said to be the case with the co-accused that was discharged. It followed therefore that where there were some extenuating circumstances which inured to the advantage of the co-accused, the appellant could not be so considered as his circumstances had made a distinct peculiar presentation. See Idiok v. State (2006) 12 NWLR (Pt.993) 1 at 32.”
See also OKORO V. THE STATE (2012) LPELR-7846 (SC).
KALU AND UDEOGU
For the records, Kalu and Udeogu were both convicted and sentenced to 12 years and 10 years’ imprisonment, respectively, on the 5th of December, 2019, of N7.1 billion fraud. the trial was a joint one, under one charge. It was the same Judge. The Court was the same; Federal High Court, Lagos. Some of the counts bordered on conspiracy between them and Slock Nigeria Ltd. The same facts and evidence were led by the witnesses. Thus, unlike the position espoused above by the Supreme Court in Yusuf v FRN (supra), Orji Kalu and Udeogu were tied together by the same umbilical cord. To attempt to separate them will amount to a futile attempt to separate Hamlet from the Prince of Denmark, or six from half a dozen. That was why none of them could swim afloat whilst the other sank. They were in the same boat that capsized on both of them in the raging torrent of the criminal trial. It must be stated that Kalu and Udeogu were jointly convicted and sentenced together under counts 24, 25, 27, 28, 30, 31, 32, 34, 37, 38 and 39 (eleven whole counts out of 28). Kalu, on the other hand, was sentenced on 28 counts (counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39).
It is also pertinent to state that during the proceedings of Tuesday, October 22, 2019, when both the prosecution and Defendants adopted their final written addresses, the prosecution had argued that the second Defendant (Udeogu) had already admitted to the offence, both in his extra-judicial statement and under cross-examination. He put it thus: “the admission is binding on all Defendants”. The Judge had also held that “the case was conclusively investigated, as the prosecution conducted thorough investigations. No gaps were left unfilled; this is the acceptable practice”. So, what has changed? I humbly submit that nothing had changed between October 22, 2019, when the prosecution made the above submission and the 8th of May, 2020, when the Supreme Court delivered its judgment.
The Nigerian Correctional Service is hereby humbly advised to release both Orgi Uzor Kalu and Ude Jones Udeogu (if not already released) and await their fresh trial as ordered by the Supreme Court.
CAN ORJI UZOR KALU TAKE BENEFIT OF THE SUPREME COURT JUDGEMENT IN SC.622C/2019?
The position in law and judicial precedents show that in cases where an accused is tried jointly with another accused and their case is clearly inseparable and interwoven, the conviction of one can never stand where his co-accused is discharged and acquitted. The Supreme Court emphasized this in ALO v. STATE (2015) LPELR-24404 (SC), when it held that:
”…where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was discharged and acquitted.” Per OGUNBIYI, J.S.C (p. 47, paras. B-C).
The Court of Appeal, had earlier in AFRIBANK NIG PLC v. HOMELUX CONSTRUCTION COMPANY LTD & ANOR (2008) LPELR-9020 (CA) affirmed this position of the law, thus:
“Generally, where there is a joint cause of action against two or more persons, a discharge as against one of them operates as a discharge of all because the cause of action is one, once it is discharged all persons otherwise liable are consequently released. See Kadzi International Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (pt.864) 545; Ihunde v. Samson Roger Nig. Ltd. (2000) FWLR 2782. The view above was apply described by Salami JCA in See Kadzi International Ltd v. Kano Tannery Co. Ltd (supra) at 160 – 161 in the following words:- “I also agree with the learned counsel for the first and second respondents that, learned trial Judge with respect, cannot approbate and reprobate. He is not entitled, in the circumstance of the suit, in which the parties are sued jointly, for find that he has no jurisdiction to try the claim in respect of one of the parties and then turn around to say he is competent to entertain the same suit in respect of the second person”. Smith L.J. in Duck v. Mayer (1899) 2 QB 511 at 513 stated: “It is, we think, clear law that a release granted to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor the reason being that the cause of action which is one and indivisible, having been realeased, all persons otherwise liable thereto consequently released”. Per PETER-ODILI, J.C.A. (Pp.33-34, Paras.C-B).
Only in 2018, the intermediate court reiterated this trite position of the law in UMANA & ANOR v. STATE (2018) LPELR-44403 (CA), as follows:
“the Court in its wisdom found the Appellants guilty for murder under count III yet could not find them guilty under count I based virtually on the same evidence adduced at the trial. Yet, it is a well settled principle, that when the evidence against two or more accused persons in a criminal case is in all material respect the same, and a doubt is resolved by the trial judge in favour of the accused persons, the same doubt must be resolved in favour of the other(s). As aptly held by the Apex Court: Differently put, where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was acquitted and discharged. See AKPAN VS. THE STATE  12 NWLR [Pt.780] 189 at 204, per Katsina, JSC [as he then was]. See also ABUDU vs. STATE  1 NWLR [Pt.1] 55 per Kazeem, JSC at 65. In the instant case, having critically, albeit dispassionately, considered the totality of the evidence of the prosecution, most especially the doubtful credibility of the evidence of the prosecution star witness, the PW1, the Court below ought with the same yardstick with which it weighed his evidence against the Appellants, under count 1 of the charge, have found his evidence against the Appellants equally unreliable and unsafe. See ABUDU VS. THE STATE [supra] at 65.” Per SAULAWA, J.C.A. (Pp. 21-22, Paras. A-B).
In SHEKETE V. NAF (2007) 14 NWLR (Pt. 1053) 159 at 202 (paras. C-D) (SC), the apex court reiterated this position of the law in ringing tones, as follows, concerning discredited evidence of an accused in a joint trial:
“Where a discredited evidence of some witnesses is used to discharge and acquit some accused persons in a joint trial, the same evidence cannot be used to convict some other accused persons facing the same or similar charges. See Edri v. State (2004) 11 NWLR (Pt. 885) 589; Shekete v. N.A.F. (2000) 15 NWLR (Pt. 692) 868; James v. N.A.F (2000) 13 NWLR (Pt. 684) 406.” Per Adamu JCA.
See also YAU V STATE (2012) LPELR-20798 (CA); and UKPE V. STATE (2012) LPELR-19715 (CA).
It is clear, beyond argument, that the case and trial of Orji Kalu and Udeogu, being one, the same and joint, the decision of the Supreme Court setting aside the trial of Udeogu, applies with equal force and in similar measure to Kalu. For the avoidance of doubt, and for those moaning that the “fight against corruption”, have, in their perception, been “defeated”, the Supreme Court DID NOT SET Udeogu free, nor discharge him (the benefit of which Kalu is entitled to). It merely set aside the trial and “remitted to the Chief Judge of the Federal High Court for reassignment to another Judge of the Federal High Court for trial de novo”, the charge against Ude Jones Udeogu. In other words, it is not yet Uhuru for them. So, be patient. Let the wheels of Justice grind to their destination, even if slowly. True, justice delayed is justice denied. Similarly, justice hurried is justice crushed. See THE CHAIRMAN, NATIONAL POPULATION COMMISSION V. THE CHAIRMAN, IKERE LOCAL GOVERNMENT & ORS (2001) 7 S.C. (Pt. III) 90 at 97-8, 100; TRADE BANK PLC V. UDEGBUNAM & ANOR (2004) ALL FWLR (PT. 200) 1576 at 1590 C.A.
Even the much touted ACJA, whose section 396(7) has been roundly invalidated and struck down by the Supreme Court for brazenly challenging, eye-ball-to-eye-ball, the supremacy of the Constitution as the grundnorm, font et origo of our democratic dispensation (contrary to section 1(3) of the same Constitution), is not only to “promote the efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime”, but also the “protection of the rights and interest of the suspect, the defendant and the victim”. So, ‘fiat justicia ruat caelum’ (let justice be done though the heavens fall). Let me assure us all of one thing: the heavens have never fallen and will not now fall. As stated by Cassandra Clare, “the Law is hard, but it is the Law.”