* Former governor stands to benefit from judgment nullification, say SANs
Alex Enumah in Abuja
Four days after the Supreme Court quashed the conviction and sentence of former Governor of Abia State, Chief Orji Uzor Kalu, he is to be released from the Kuje Prison, THISDAY has learnt.
The Supreme Court had last Friday quashed the judgment that convicted and sentenced Kalu and a former Director of Finance in the state, Jones Udeogu.
Senior lawyers in the country yesterday agreed that Kalu stands to benefit from the judgment which nullified their conviction and sentencing over corruption and fraud charges.
The apex court, in a unanimous decision by a seven-man panel of justices led by Justice Bode Rodhes-Vivour, struck down section 396(7) of the Administration of Criminal Justice Act, declaring it unconstitutional.
It held that the Federal High Court in Lagos that convicted duo acted without jurisdiction.
Justice Ejembi Eko who read the lead judgment, held that Justice Idris, having been elevated to the Court of Appeal, was no longer a judge of the Federal High Court and therefore acted outside his jurisdiction.
But four days after the judgment was delivered, the former governor is still being held in prison.
While sources close to the Kalu informed THISDAY yesterday that the judgment of the Supreme Court did not affect him, others said the Nigeria Correctional Service was yet to receive any order to let the former governor off the hook.
It was gathered that the particular appeal which the Supreme Court delivered judgment on last Friday was filed by Udeogu.
But a human rights lawyer, Mr. Ebun-Olu Adegboruwa (SAN), disagreed with the Nigeria Correctional Service, urging the service to release the former governor with immediate effect.
Adegboruwa said in a criminal matter, when a co-defendant’s conviction and sentence are quashed, other defendants are entitled to benefit from such verdict.
“The Nigeria Correctional Service does not have any reason for still keeping Kalu in their custody. They should let him go based on the judgment of the Supreme Court.
“In criminal matters once a co-defendant’s conviction and sentence have been quashed, other defendants benefit from such verdict because they were charged together. It is not like civil matters,” he said.
According to Professor Epiphany Azinge (SAN), if the judgment was nullified on the basis that the judge was not qualified to do so, ‘then to that extent of not being constitutional qualified, it means that the judgment is null and void and to that extent Orji Kalu in the eyes of the law was never a prisoner, should not have been a prisoner and should not be deemed to even be an ex-convict even if at all a convicted person.
“I doubt if in the face of it and the operation of the law that that order ought not to be extended to him”.
Azinge noted that although the court not been a Father Christmas may not give what you don’t ask for and moreso his lawyers could not have asked because he was not a party in the appeal, he ought to benefit from the nullification of the conviction.
“I feel very strongly that the mere interpretation of the Supreme Court Judgment may not on the face of it require any consequential order to the correctional service. The fact that it is clearly stated that that judgment was a nullity having not emanated from a constitutional authorized process and the conviction as far as the law is concerned was not properly made. One should stretch that interpretation to support any request that Kalu ought to be released from the Correctional Service custody”, he said.
Also speaking in the same line another senior lawyer, Mallam Ahmed Raji (SAN) noted that an enrolled order must be presented before Kalu be released since he was not a party in the suit at the Supreme Court.
“Yes the enrolled order is necessary for enforcement. Kalu should benefit but since the judgement is limited to the appellant, he may need to take a little step further by filing an originating motion”, he said while expressing confidence that the senator would be released soon.
He advised that if the prison authority is being too legalistic, the senator can approach the federal high court with an originating motion to pray for his release on the basis of the Supreme Court judgment.
On his part, Mr. John Baiyeshea (SAN) insisted that Kalu will eventually benefit from the judgment “because the judgment goes to the root of the trial, which is jurisdiction.
He reiterated that the Judgment of Supreme Court though right, is tantamount to technical Justice.
“It is reactionary and gross/severe setback for Administration of Criminal Justice and a terrible blow to the objective to avoid long delays in prosecution of criminal cases (particularly cases of corruption).I stand by my opinion till eternity.
“But as painfully disturbing as this judgment is, it will have to be complied with by persons and authorities.