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The Chairman of the Presidential Advisory Committee against Corruption, Prof. Itse Sagay, SAN, has expressed his displeasure at the Supreme Court’s judgment nullifying the trial of a former governor of Abia State, Orji Kalu, and others, who were in December convicted and sentenced for a N7.1bn fraud.

Justice Mohammed Idris, who was elevated to the Court of Appeal bench, had returned to the Federal High Court in Lagos to complete the case, which started in 2007. The case was one of 36 pending cases in the lower court, which were completed by the judge.

Justice Idris sentenced the ex-governor to 12 years imprisonment for the fraud he allegedly perpetrated during his tenure as Abia State governor.

But in a unanimous judgment of the Supreme Court led by Justice Olabode Rhodes-Vivour, on Friday, the apex court nullified the entire trial, on the grounds that the constitution does not permit a judge elevated to a higher court to return to a lower court to conclude a part-heard case.

However, Sagay, while responding to the judgement, told newsmen that no section of the constitution prevented a judge, who was promoted to a higher court, from continuing to hear pending cases in the lower court.

He said, “I think this judgment is a great disservice to this country. It’s a great setback because it drags us back into the iniquity of cases that have no end without any good reason at all.”

The constitutional lawyer noted that the Administration of Criminal Justice Act, 2015 allowed judges to continue with pending cases because of the “grave disadvantages” that had been noticed with regard to the interpretation of the Supreme Court.

He stated, “We found, in many cases, judges had spent up to five to seven years on a case, they were promoted and then they could not continue with it. A new judge would start and the case would begin all over again. It was killing our judicial system. That’s why the National Assembly passed that law under the ACJA.

“I’m not aware that the constitution specifically outlaws it. In my view, if the Supreme Court had interpreted that situation in that manner previously, that is interpreted to mean that, once you’re promoted, you cannot continue with cases in a lower court.


“(But if) the National Assembly then passes a law that grants the authority to that judge, I think the Supreme Court doesn’t have the power to insist on its own interpretation by referring to the constitution, which has no such provisions.”

Sagay explained that the provisions of the ACJA allowed for judges to continue hearing pending cases, even after their elevation to higher courts, despite previous interpretation by the Supreme Court that judges had to hand over pending cases upon promotion.

He said, “To my knowledge, there is no provision of the constitution that prohibits a judge who has been promoted to a higher court from completing a case he is considering in his current court.

“I’m not aware that there is any such provision and I know that, in the past, the judiciary had, by their own interpretation, stated that you cannot be a member of two courts at the same time.

“But the ACJA now returned that authority just to save us the embarrassment of cases going on for 20 years of the injustice that arose from the system of a mere technicality like that.”

The senior lawyer also argued that justice should take precedence over judicial interpretations.

He said, “Equally more important, I’ve always insisted, as an old man of the law in this country, older than any Supreme Court judge both in law and age, that the primary objective of any judge should be justice.

“If you have a case, you should look at the justice of the case. If you have an interpretation that will destroy justice, then you should avoid it and use your intellectual capacity to bring in an interpretation that will both promote justice and also be legitimate in the way you interpret it.

“That is why we regard judges as the repositories of the law. We had justices in the Supreme Court in the late 1970s, 80s and even 90s. I’ve always mentioned it. People like Justice (Kayode) Eso, Justice (Chukwudifu) Oputa, Justice (Andrews) Obaseki and Justice (Adolphus) Karibi-Whyte — there are about 10 of them who did that. That’s the era we call the Golden Age of the Supreme Court.”

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