POST-CONVICTION BAIL: Will Luck Smile on Kalu?

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Orji Uzor Kalu

Where former governors Jolly Nyame of Taraba State and Joshua Dariye of Plateau State, who are presently serving 14-year jail terms failed to secure bail from prison pending appeal, many are wondering if former Governor of Abia State, Orji Uzor Kalu could succeed, writes Davidson Iriekpen

Will former Governor of Abia State, Senator Orji Uzor Kalu, be lucky with his application for bail from prison pending appeal? This is the question Justice Mohammed Liman would answer tomorrow when he delivers his ruling on the former governor’s application.

Justice Mohammed Idris had on December 5 convicted and sentenced Orji Uzor Kalu to a concurrent term of 12 years imprisonment over N7.2billion fraud after the Economic and Financial Crimes Commission (EFCC) charged and prosecuted him alongside his former Commissioner for Finance, Jonnes Ude Udeogo, and his Company, Slok Nigeria Limited, on an amended 39 counts charge of fraud.

In his judgment, Justice Idris found Kalu and Slok guilty of all 39 counts of the charge, while the second defendant Udeogo, was convicted on 34 counts of the charge. While Kalu was sentenced to a term of 12 years imprisonment for the offence, Udeogo got 10 years imprisonment. The court ordered that Slok Nigeria Limited be wound up and its assets forfeited to federal government.

“The case was conclusively investigated as the prosecution conducted thorough investigations. No gaps were left unfilled; this is the acceptable practice. The first defendant failed in his obligations under the law. He acted contrary to his codes of conduct and will be dealt with accordingly. No evil deed will go unpunished. The offences are anti-human; it is condemned worldwide, because it is a crime against humanity,” the judge held.
Though the former governor and others had long filed their notices of appeal, last Tuesday, his lawyers, Messrs Lateef Fagbemi (SAN) and Awa Kalu (SAN) appeared in court with an application seeking his release from prison pending the determination of his appeal.

Fagbemi told the court that his application was premised on 23 grounds and supported by an affidavit of 38 paragraphs, adding that after receiving the counter affidavit from the prosecution, he had filed a 34-paragraph further affidavit with one exhibit attached. He also drew the court’s attention to a Notice of Appeal against the conviction of Kalu, and relied on the provisions of sections 241 of the Constitution in urging the court to grant the applicant bail pending appeal.

“If there is a right of appeal, then there is a corresponding right of bail pending appeal,” he said.
Citing the case of Okitipupa as well as sections 6 of the Constitution, the senior lawyer argued that being a court of record, it has the powers to entertain such applications since post-judgment jurisdiction are anchored on section 6 of the Constitution.

In arguing the application for bail, he mainly relied on the ill health of the first convict, as well as the need for him to return to the floor of the National Assembly to carry out his service to the nation. He, therefore, urged the court to grant the application as sought.

Opposition this, however, the prosecutor, Rotimi Jacobs SAN, said although bail is generally a right of an accused as guaranteed by the constitution, it is not a right available to a convict, because the presumption of innocence had crystslised into guilt and conviction.

Such application for bail pending the appeal, he argued, was “sparingly” granted by the court, for instance, in situations where the terms of imprisonment would have elapsed before the appeal was determined. He concluded that this was not the situation with the case of Kalu.

On Kalu’s health condition, Jacobs argued that there was no recent medical report to show his state of health as the medical report attached was over a year ago. Besides, he argued that the request by Kalu to be released on bail so as to seek ‘traditional medicine” was not a tenable ground as visitors were allowed into the prison.
“He says he needs his traditional herbalist to treat him but he has not said that his herbalist came to the prison and was not allowed to see him. In one breath, the applicant is saying that he wants to be released on health grounds while in another breath he is saying that as senator, he needs to be released on bail so as to carryout his official functions,” he said

Citing the case of FRN vs Joshua Dariye, prosecution argued that the Nigerian criminal jurisprudence was robust enough to handle appeal and dispense with it within reasonable time. He argued that the medical facilities at the correctional centre were capable of handling the medical condition of the convict. He, therefore, urged the court to refuse the bail application of Kalu.

Considering the fact that former Governors Jolly Nyame of Taraba State and Joshua Dariye of Plateau State, who are presently serving 14-year jail terms respectively for the same offence of diverting public funds equally filed similar applications, which failed, observers had been wondering if Justice Liman would grant Kalu’s application.

Kalu, as soon as he left office in May 2007, was arraigned by the EFCC before Justice Binta Murtala Nyako of the Abuja Division of the Federal High Court on July 27, 2007 on a 107-count charge. The charges, which were later amended, bordered on the alleged complicity of the erstwhile governor in money laundering and illegal diversion of public funds to the tune of N5.6billion.

In the charge, the convicts were said to have committed the offence between August 2001 and October 2005. Kalu specifically, was said to have utilised his company to retain in the account of a First Inland bank, now FCMB, the sum of N200 million. The sum was said to have formed part of funds illegally derived from the coffers of the Abia State Government.

In one of the counts, Slok Nigeria Limited and one Emeka Abone, who is said to be at large, were also said to have retained in the company’s account, the sum of N200 million, on behalf of the first accused. In counts one to 10, the defendants were said to have retained about N2.5 billion in different accounts, which funds were said to belong to the Abia State Government.

Cumulatively, in all the counts, the defendants were said to have diverted over N7.2 billion from the Abia State government’s treasury, during Kalu’s tenure as governor.

The offence is said to have contravened the provisions of sections 15(6), 16, and 21 of the Money Laundering (Prohibition) Act, 2005. It also contravened the provisions of the Money Laundering Act of 1995 as amended by the amendment Act No.9 of 2002 and section 477 of the Criminal Code Act, Laws of the Federation, 1990.
The judge later granted him bail in the sum of N100 million with two sureties in like sum. She directed that the two sureties must be taxpayers with evidence of regular payment for three consecutive years. The court equally seized the travelling documents of the defendant, warning that he must always apply for leave to travel out of the country.

But Kalu challenged the competence of the charge against him, as well as the jurisdiction of the court to hear and determine the case. He asked the court to quash the charges, a request the court refused his to grant.
Following refusal, Kalu took the case before the Court of Appeal in Abuja. The appellate court, in a unanimous judgment, upheld the competence of the charge, adding that the high court was constitutionally empowered to exercise jurisdiction on the trial.

Dissatisfied with the verdict, Kalu approached the Supreme Court, begging it to set-aside the concurrent findings of the two lower courts. The former governor, through his lawyer Chief Awa Kalu, SAN, pleaded a five-man panel of justices of the apex court, headed by the then Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, to quash the criminal charge against him. He contended that the EFCC failed to establish a prima-facie nexus linking him to the ingredients of the offence contained in the charge.

The Supreme Court after listening to the submissions, in a unanimous judgment, dismissed the appeal and ordered the appellant to go and face his trial before the high court.

While upholding the Court of Appeal verdict, Justice Suleiman Galadima who delivered the lead verdict, said the apex court was satisfied that the former governor has a case to answer pertaining to allegations that were levelled against him by the EFCC.

The apex court also ordered then Chief Judge of the Federal High Court, Justice Ibrahim Auta, to re-assign the case to another judge to enable the trial to commence afresh. By the time it was remitted to the Federal High Court in 2016 on the orders of the Supreme Court, under the pretext of medical treatment and sundry excuses, the trial was characterised by constant delays at the instance of the former governor and his lawyers.