Kalu Gets Reprieve as EFCC Prepares for Fresh Trial

Orji Uzor Kalu

•Ex-governor celebrates, lawyers disagree

By Deji Elumoye and Alex Enumah

The Economic and Financial Crimes Commission (EFCC) yesterday described the Supreme Court judgement that quashed the conviction of the former governor of Abia State, Orji Uzor-Kalu for corruption and the order for his retrial, as a technical ambush of his trial.

Justice Mohammed Idris of Federal High Court, Lagos, had last December sentenced the ex-governor to 12 years imprisonment for fraud he allegedly perpetrated during his tenure as Abia State governor. The Court of Appeal also concurred.

But in a unanimous judgment of the Supreme Court delivered by Justice Ejembi Eko yesterday, 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.

The EFCC, in a swift reaction by its Spokesman, Dele Oyewale, said it considered the judgment of the apex court quite unfortunate and that the commission was prepared for a fresh/immediate trial of the case because its evidences against Kalu and others “are overwhelming.”

The anti-graft agency said: “The EFCC considers the judgment of the apex court as quite unfortunate. It is a technical ambush against the trial of the former governor. The commission is prepared for a fresh and immediate trial of the case because its evidences against Kalu and others are overwhelming.

“The corruption charges against Kalu still subsist because the Supreme Court did not acquit him of them. The entire prosecutorial machinery of the EFCC would be launched in a fresh trial where justice is bound to be served in due course.”

Meanwhile, Uzor-Kalu has spoken on his five month incarceration saying it was profound and challenging.

He also pledged his readiness to ensure that justice was henceforth served to all Nigerians irrespective of where they hail from.

Kalu, in a statement issued after the Supreme Court quashed his 12-year conviction, said the apex Court ruling had affirmed his right to fair hearing and equal protection of the law.

According to him, “the past five months have been quite a profound period for me and as challenging as that period has been, it has provided me an opportunity to learn invaluable lessons about our country, our peoples, our justice system and the true meaning of love. I mean love for family, love for our country and love for humanity.”

The former governor of Abia state also thanked all those who stood by him during his trying times.

He said: “I want to use this moment to thank my family, my colleagues, my friends, my supporters, the people of Abia State, and all Nigerians for their unflinching and unwavering confidence and trust in me through the very testing period. We all know today that their prayers have not been in vain. I also use this opportunity to express my gratitude to the Nigerian Correctional Service for the unalloyed professionalism and sincere humanity extended to me by its staff while I was in their custody.

“Overall, my experience tested and reaffirmed my belief and confidence in our country, Nigeria.

My case is a true Nigerian story with a bold made-in-Nigeria stamp on it. It is a story of initial injustice that was caught and ultimately corrected. It is a story of restoration. It is a story of how a wrong was righted and how justice and truth prevailed in the end.

“It is a story of the power of hope. My case should teach us all that even though we may not get things right at the first attempt, with patience and dedication, we shall get them right eventually. That is the lesson of my case and that is the lesson of our country – that with dedication and patience, we shall place Nigeria in its rightful place eventually.”

Reacting to the judgement, the Chairman of the Presidential Advisory Committee against Corruption, Prof Itse Sagay, SAN, expressed his displeasure.

Sagay said 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 said: “We found, in many cases, judges that 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,” he added.

Mallam Ahmed Raji SAN, while agreeing with the judgment, however said that the Constitution must first be amended to empower elevated judges sit and conclude cases they were handling before promotion.

According to Raji, the idea of allowing elevated high court judges to conclude part-heard matters was not a bad one taking into consideration the congestion in the courts. But it has to be sanctioned by the ground norm.

Another senior lawyer, Dr Kayode Olatoke said, “The decision of Supreme Court is the correct interpretation of the law and that has been my own view of the position of the law. That aspect of ACJA which allow a Court of Appeal justice to come and sit as a high court judge is unconstitutional and an aberration.”

Also reacting, Mr. John Baiyeshea said: “My reaction, first and foremost is that the Judgment of the Supreme Court is correct. But it is a sad and tragic story of how the fight against corruption is being frustrated purely by technical judgment/Justice.

“This case took more than 10 years to prosecute, because the accused persons did everything possible to ensure that the case was never successfully prosecuted. They even went as far as the Supreme Court on appeal on preliminary objections just to frustrate the case. The Supreme Court after more than seven years held that his trial should go on and be concluded.

“This type of judgment encourages the criminally-minded political office holders, and other criminal elements to commit crimes with relish. They take advantage of our porous, permissive and technical legal system, and the nation continues to bleed to death,” Baiyeshea said.

On his part, Mr Dayo Akinlaja, SAN, argued: “Once a Court lacks the requisite jurisdiction to determine a cause or action, the proceedings thereof would invariably amount to a nullity no matter how well otherwise conducted.

“The net sum of it all is that the Supreme Court is impeccably right with its decision and the order for the trial to start de novo is equally irreproachable on account of the fact that, in the eye of the law, it is like the defendants have never been tried on the charges brought against them.”

Justice 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.

To prevent further setback of Kalu’s case, the then President of the Court of Appeal, Justice Zainab Bulkachuwa issued a fiat to Justice Idris to return to the lower court to conclude cases being tried by him before his elevation.

Thereafter, Justice Idris in December last year found the former governor guilty of corruption allegations to the tune of N7.6 billion and consequently sentenced him to 12 years improvement.
While Kalu and a Director of Finance, Jones Udeogu, who served under him when he was governor, were both sentenced to jail terms of 12 and 10 years respectively, his company, Slok Nigeria Limited, was liquidated and its assets forfeited to the federal government.

Dissatisfied with the judgment of the court, the second and third defendants approached the appellate court to set aside the judgment of Justice Idris on grounds of jurisdiction.
Delivering judgment in the appeal in March this year, a three-member panel of the Court of Appeal dismissed the appeal for lacking in merit.

Still not satisfied the appellants took their case to the Supreme Court where judgment was entered in their favour yesterday.

The Supreme Court held that the Federal High Court in Lagos, which convicted Kalu, his firm – Slok Nigeria Limited and his former aide, Jones Udeogu, lacked jurisdiction to do so.

It explained that Justice Idris, who conducted the trial, was no longer a judge of the Federal High Court at the time he sat and delivered the judgement.

The court added that Justice Idris, having been elevated to the Court of Appeal before then, lacked the powers to return to sit as a High Court Judge.

The apex court held that section 396 (7) of the Administration of Criminal Justice Act (ACJA) 2015 on which Justice Idris acted upon to convict and sentenced Kalu was unconstitutional.
According to the apex court, the trial court acted without jurisdiction when it convicted Kalu, his firm, Slok Nigeria Limited and Mr Udeogu.

Justice Eko held that “the president of the Court of Appeal acted ultra vires her powers when she issued the fiat to Justice Idris to sit as a judge of the Federal High Court.

“The Federal High Court and the Court of Appeal are established by the Constitution with distinct powers and functions. The president of the Court of Appeal has no powers to assign dual powers to a Justice of the Court of Appeal to meddle in the internal affairs of the Federal High Court.

“Justice Idris having been elevated to the Court of Appeal ceased to be a Judge of the Federal High Court and therefore lacked the jurisdiction to adjudicate on the case.

“Section 396(7) of ACJA did not give him new powers to perform dual functions.

“Section 396(7) of ACJA conflicts with section 253 of the constitution which provides that: “The Federal High Court shall be dully constituted if it consists of at least one judge of that court. It is therefore a nullity.

“The implication is that Justice Idris acted without jurisdiction. It is settled law that jurisdiction is the life wire of adjudication and if a court has no jurisdiction to decide a case, the proceedings remain a nullity ab initio, no matter how well conducted and decided. This is so since a defect in competence is not only intrinsic but also extrinsic to the entire process of adjudication,” he held.

The apex court further held that section 396(7) was also in conflict with the provisions of sections 1(1), 1(3), 238(2), 239, 240, 250(2) of the 1999 Constitution, and therefore liable to be struck down.

“Accordingly, the judgment delivered on December 5, 2019 I hereby set aside. The case file is to be remitted to the Chief Judge of the Federal High Court to be assigned to another judge for trial de novo.

“This is because you cannot put something on nothing and expect it to stand as the whole trial was a nullity ab initio,” Justice Eko held.