Orji Kalu’s Continuous Incarceration: Why Order Of Mandamus Is A Game Changer

By Obidike Chukwuebuka

There is this learned, but very reserved Justice of the supreme Court that I have always envied his intellectual prowess. His name is Justice Rhodes-Vivour. Rhodes is one of my favourite speakers of all time. I can skip breakfast, lunch and dinner, just to listen to him all day long.

In my study few years back, I read his ruling in the celebrated case of Iwunze v Federal Republic of Nigeria (2015) 6 NWLR (Pt. 1404) at 580. While reading the dictum, the learned Justice said and I quote ” One cannot put something on nothing and expect it to stand, illegality does not beget legality. When a foundation is illegal, whatever is predicated upon such foundation would also be illegal.”

The supreme Court of Nigeria had on the 8th day of may,2020, delivered a judgement on the appeal brought before her by Jones Udeogu. The apex court had declared null and void the actions of Justice Mohammed Idris who convicted and sentenced Jones Udeogu, Orji Kalu and others to 10years and 12 years imprisonment respectively.

Recall that the EFCC arraigned Jones Udeogu, Orji Kalu and others before Justice Mohammed Idris on several criminal charges. The trial was yet to be concluded when Justice Idris was promoted to the court of appeal sometime around June,2018. The said Justice Idris took oath of office as an appeal court judge on June 22, 2018.

Relying on the provisions of section 396(7) of the Administration of Criminal Justice Act, the then president of the court of appeal directed Justice Mohammed Idris to go back to the high court and conclude the case on his table, regardless of the fact that he was no longer a judge of the high court.

While Orji Uzor Kalu never questioned Justice Idris’s jurisdiction to continue hearing the case, Jones Udeogu, his co-defendant challenged the directive of the then president of the court of appeal. Udeogu filed an application asking Justice Idris to withdraw from the matter in its entirety as he was no longer a high court judge. But, Justice Idris also relied on the provisions of section 396(7) of the ACJA to rule against Udeogu’s application.

To cut a long story short, Udeogu dissatisfactorily appealed the said judgement to the court of appeal and lost, he then moved to the supreme Court. While Udeogu was still at the supreme Court challenging Idris’s jurisdiction, Justice Idris who was handling the substantive suit concluded the case on 5th December,2019, and jailed the three defendants including Jones Udeogu, Orji Kalu and Slok Nig.Ltd.

On 8th May,2020, the supreme Court voided the ruling of Justice Idris. The supreme court agreed with Udeogu’s appeal and voided the provisions of section 396(7) of the ACJA.

One would ask that Orji Kalu did not join force with Udeogu to question Justice Idris’s jurisdiction to continue the trial, how then would he benefit from the supreme court’s ruling?

Here comes to play, the doctrine of law which says that an ation does not arise from a dishonorable cause. The implication of the supreme court ruling on Udeogu’s application or appeal was that the conviction of Udeogu and every other person so to say never existed abinitio. A wrong judge delivered a judgement and convicted Udeogu and others, hence an illegal conviction.

Any edifice no matter how beautiful, elegant, well furnished and fashionable it may seem, if it has a faulty foundation, it must collapse, same as a judgement and or conviction by an illegal jury; it can’t stand, infact it never existed abinitio.

Since the supreme court has voided and pronounced null and void, all actions of Justice Idris, predicated upon the provisions of section 396(7) of the ACJA to continue and conclude a trial he never had powers to do abinitio, the proper thing to be done however, is for every party to abide by the doctrine of “status quo.”

You can’t go on to incarcerate a party in a judgement the supreme court has declared illegal and said it never existed in the first place.

But, when such happens what should be the remedy?

Here comes the application of prerogative remedy, hence the Writ of Mandamus.

Writ of Mandamus is one of the prerogative remedies in law. The writ compels a government agency to carryout her statutory responsibility when or where such agency of the government has failed to do so.

When the supreme court voided and declared illegal, the conviction of Udeogu on the ground that such conviction never existed, common sense suggests that whosoever is directly or passively affected and or convicted by such illegality should be consequently set free pending the judgement of the trial de novo as directed by the supreme court.

_ OBIDIKE CHUKWUEBUKA