A judge of the Federal High Court in Abuja, Inyang Ekwo, on Wednesday, barred the Economic and Financial Crimes Commission (EFCC) from retrying a former governor of Abia State, Orji Kalu, who was earlier convicted of N7.1 billion fraud.
Mr Kalu, a serving senator representing Abia North, was already serving a 12-year jail term for the offences when the Supreme Court, on 8 May 2020, nullified the proceedings leading to his and his co-defendants’ conviction.
The Supreme Court’s judgment delivered on an appeal by Mr Kalu’s co-defendant, Ude Udeogu, had ordered a retrial at the Federal High Court.
Mr Orji Kalu, who is the incumbent Chief Whip of the Nigerian Senate, got out of prison based on the apex court’s judgement, but quickly filed an application before the Federal High Court in Abuja to stop his retrial.
Ruling on the application on Wednesday, the judge, Inyang Ekwo, granted the ex-governor’s request.
The judge held that the apex court’s verdict did not order the retrial of Mr Kalu.
“The judgement of the Supreme Court on this matter is final.
“On the whole, the fact that there is no order for retrial of the applicant (Mr Kalu) in the judgement of the Supreme Court, or by the virtue of Section 36 (9) of the 1999 constitution as amended, or Section 283 (2) of the ACJA (Administration of Criminal Justice Act), has allowed prayer two of the applicant to succeed.
“Going by the facts and circumstances of this case, I find that the case of the applicant (Mr Kalu) has succeeded,” the judge said.
He also cited section 36 (9) of the Nigerian constitution and Section 238 (2) of the Administration of Criminal Justice Act (2015), in saying, “no person can be retried on the offence upon which he has been convicted.
“The chequered history of the case is well known,” he said and went on to grant presiding judge granted some of Mr Kalu’s prayers.
“The order of prohibition is hereby made, prohibiting the Federal Government of Nigeria through the Economic and Financial Crimes Commission and agents, officers, servants, persons or bodies deriving authority from the Federal Republic of Nigeria, from retrying the applicant in charge number: FHC/ABJ/56/2007 or any other charge based on the same facts de novo (afresh). There has been no extant judgement or ruling of a competent in Nigeria mandating same. That is the judgement of the court,” Mr Ekwo said.
However, the court ordered the retrial of Udeh Udeogu, which he slated for January 11, 2022.
The judgement immediately struck a chord with those who followed the argument of the prosecutor, Rotimi Jacobs, a Senior Advocate of Nigeria, pointing out contradiction in Mr Kalu’s argument during the hearing of the application to stop retrial in May.
“The plaintiff (Orji Kalu) and his co-defendant are enjoying the benefit of the Supreme Court judgement, but they are avoiding the burden that comes with it.
“The Supreme Court ordered that plaintiff and his co-defendant be tried denovo (afresh). So, there must be a conviction or an acquittal by a competent court,” Mr Jacobs had said.
Shortly after the judgment was handed down, Oluwaleke Atolagbe, EFCC’s lawyer, told journalists that the verdict would be challenged.
“Most likely, we are going to appeal the judgement. That is certain,” Mr Atolagbe said.
Mr Kalu was tried based on amended 39 counts in which they were accused of stealing and mismanaging funds belonging to Abia State during his days as governor between 1999 and 2007.
He was tried alongside his company, Slok Nigeria Limited, and Udeh Udeogu, who was Director of Finance and Accounts at the Abia State Government House during Mr Kalu’s tenure as governor.
In December 2019, Mohammed Idris, then a judge of the Federal High Court in Lagos, (now a Justice of the Court of Appeal) sentenced Mr Kalu, to 12 years in prison for N7.1 billion fraud.
The judge sentenced his co-defendant, Udeh Udeogu, to 10 years in jail for diverting Abia State’s funds.
The court also ordered Slok Nigeria Limited to be wound up and its assets forfeited to the federal government.
But, ruling on Mr Udeogu’s appeal, the Supreme Court on May 8, 2020, set side the conviction and sentence, on the grounds that the judgment of the trial court delivered by Mr Idris after he had been elevated to the Court of Appeal bench, was unconstitutional.
Ejembi Eko, a Supreme Court judge, who delivered the lead verdict, held that a Justice of the Court of Appeal cannot operate as a judge of the Federal High Court.
He ruled that section 396 (7) of the Administration of Criminal Justice Act (ACJA), 2015, on which the then president of the Court of Appeal, Zainab Bulkachuwa, relied on to authorise the trial judge to return to the high court to conclude the trial was unconstitutional.
He then ordered the Chief Judge of the Federal High Court to reassign the case to another judge of the court for retrial.
Following the nullification of his conviction by the Supreme Court, the former governor filed an application at the federal court seeking an order for his release from the custody of the Nigerian Correctional Service (NCS), Kuje, Abuja.
A judge, Mohammed Liman, in June 2020, granted the application and ordered the immediate release of Mr Kalu from custody.
As EFCC commenced move to have the defendants retried, Mr Kalu rushed to the court to file an application stopping his retrial.
His lawyer, Awa Kalu, a Senior Advocate of Nigeria, said the Supreme Court never ordered the retrial of the erstwhile governor of Abia State as he was not a party in the matter that nullified the entire proceedings at the trial court.
“The Supreme Court never ordered the retrial of the plaintiff (Mr Kalu). Our application is anchored on the fact that my client was tried, convicted and sentenced. He spent five months in prison. Therefore, a retrial will amount to double-jeopardy.
“The plaintiff stood trial for 12 years. His trial terminated in 2019. I urge the court to grant our application,” he said
The judge, Mr Ekwo, agreed with the application and prohibited Mr Kalu’s retrial on Wednesday.
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