Has Kalu Walked Away ?

The courts have often held that they are not Father Christmas and as such, cannot grant what a litigant did not ask for. Vanessa Obioha reports that this was not the case with the trial of a former Abia State governor, Senator Orji Uzor Kalu, who was last Wednesday allowed to benefit from an appeal he did not file

A Federal High Court in Abuja last Wednesday surprised many Nigerians when it said former Abia State Governor, Senator Orji Uzor Kalu and his firm, Slok Nigeria Limited, cannot be re-tried over their alleged involvement in N7.1 billion fraud while he served as governor.

Justice Inyang Ekwo, in a judgment held that since Kalu and his firm were not mentioned in the judgment of the Supreme Court, which voided their earlier conviction and sentencing and ordered a retrial, the judgment could not be applied to them.

He held that it was only the former governor’s co-accused, a former Account Director in Abia State Government House, Mr. Ude Jones Udeogu, named in the Supreme Court judgment, that could be re-tried as directed by the apex court.

The judge rejected the prosecution’s argument that having benefited from the judgment of the Supreme Court, the order for retrial should also apply to them.

After 12 years of trial, Kalu, his company, Slok Nigeria Limited and Udeogo were on December 5, 2019, convicted and sentenced by Justice Idris who sat at the Federal High Court in Lagos for N7.2 billion fraud and money laundering. They were all arraigned by the Economic and Financial Crimes Commission (EFCC) on a 39-count charge. While Kalu and his company were found guilty on all the 39 counts and sentenced to 12 years imprisonment, Udeogo was convicted on 34 counts and sentenced to 10 years imprisonment.

But before their conviction, Udeogu in a well-orchestrated plan, filed an appeal to challenge the conviction. His lawyers argued that Justice Idris, who had also earlier dismissed his no-case submission, lacked the powers to hear the case because he had been elevated to the Appeal Court and ought not to hear the case in the first place.

While the Court of Appeal dismissed his appeal, he was lucky at the Supreme Court, which in a unanimous judgment quashed his conviction and sentence. The seven-man panel of the apex court justices led by Justice Bode Rhodes-Vivour, struck down Section 396(7) of the Administration of Criminal Justice Act (ACJA), declaring it illegal and unconstitutional.

Justice Ejembi Eko, who read the lead judgment, declared that the conviction of the appellant was null and void, explaining that since Justice Idris had already been appointed a judge of the Court of Appeal, it was improper for him to hear the case.

The jurist held that a judge of the Court of Appeal could not operate as a judge of the Federal High Court at the same time. He therefore, ordered the Chief Judge of the Federal High Court to reassign the case to another judge for a trial.

As soon as the Supreme Court delivered the judgment and Udeogo freed, Kalu and his firm who were not appellants in the appeal when the apex court gave the judgment, later tendered the verdict before the Federal High Court Lagos and the court applied the judgment to them and ordered that they also should be released from prison.

But when the prosecuting agency, the EFCC, reapplied for a retrial of the case as directed by the Supreme Court, Kalu and his firm dragged the anti-graft agency before a Federal High Court in Lagos, challenging the application for retrial. They argued among others that a retrial would subject him to double jeopardy.

During the hearing of the case before Justice Mohammed Liman, Kalu’s lawyer, Mr. Lateef Fagbemi (SAN), sought the release of his client from custody.

“Our application is brought pursuant to Section 159 of the Administration of Criminal Justice Act. This is a fallout of the Supreme Court decision delivered on the 8th of May.”

Responding, EFCC’s counsel, Mr. Rotimi Jacobs (SAN), said the anti-graft agency would not oppose Fagbemi’s application “in principle.”

“But we are also urging the court that the order made by the Supreme Court for trial de novo should be complied with by all parties; so that Your Lordship will give us a date when arraignment will be done. We want the trial to go on, losing more time will be dangerous for us,” Jacobs reportedly added.

In his ruling, Justice Liman set aside the trial, conviction and prison sentence on Kalu. He also squashed Justice Mohammed Idris’ verdict on Slok Nigeria Limited.

Justice Liman commended the EFCC prosecutor for his “practical approach” to the case by choosing not to oppose the application, thereby saving the court time and the rigour of going to trial.

He directed that steps should be taken for the commencement of a fresh trial.

Justice Ekwo’s last week’s verdict setting Kalu free has therefore raised questions with many observers wondering why the judge held that since Kalu and his firm were not mentioned in the judgment of the Supreme Court, which voided their conviction and sentencing and ordered a retrial, the judgment could not be applied to them.

They also wondered what the former governor tendered before the Federal High Court to secure his release from prison.

Those who spoke to THISDAY faulted the judge for saying that the Supreme Court order on Udeogu was explicit, that the case file be returned to the Chief Judge for assignment to another judge and that no order was made that the case file of the former governor be returned to the chief judge for assignment to another judge.

How come Kalu tendered the same judgment in court, upon which he was released from prison?

“I am just shocked that a judge could rule that the Supreme Court order on Udeogu was explicit, and that the case file be returned to the Chief Judge for assignment to another judge and that no order was made that the case file of the former governor be returned to the chief judge for assignment to another judge.

“Was it not the same Supreme Court judgment that Kalu and his lawyers tendered in court to secure his release from prison? On what basis was he released then? What kind of judgment is this? How could a high court upturn the judgment of the Supreme Court just like that? “As a layman, I had always heard the axiom that the courts are no Father Christmas and that they cannot grant what one did not ask for. In Kalu’s case, this is not the case. Though the High Court said his name was not in the appeal in the Supreme Court, yet he tendered the judgment of the apex court before the High Court upon which he was set free,” one of the observers who did not want his name in print, said.

Another observer who faulted Justice Ekwo’s judgment wondered why did he and Justice Liman did not ask Kalu to appeal Justice Idris’ judgment just like Udeogu did.

He wondered why Kalu should benefit from an appeal and judgment that did not concern him or in which he was not a party.

He described the judgment as laughable and annoying, calling on the EFCC to challenge the decision at the Court of Appeal and the Supreme Court.

“The whole case to me looks like is a sham. It is so funny. Everything looks orchestrated and carefully planned. I am just in a complete loss for words. You said the case did not concern Kalu because he was not a party in it, yet he did not only tender the judgment of the case in court, he benefitted from it. Is that logical?

How can the Supreme Court say a case should start afresh and the high court is saying Kalu cannot be retried? Does it mean that when the case starts afresh only Udeogu’s name will be on the charge sheet? Who committed the offence in the first place? Was it not Kalu? The judgment is just laughable and annoying. We hope that the EFCC will challenge the judgment to anywhere”, he argued.

For now, all eyes are on the EFCC to see if it would allow the judgment to stand and let the former governor go scot-free or challenge it at the Court of Appeal.