The Economic and Financial Crimes Commission (EFCC) on Friday urged the Federal High Court in Abuja to dismiss an application filed the former governor of Abia State, Orji Kalu, to stop his retrial.
EFCC’s lawyer, Rotimi Jacobs, scoffed at the seeming irony in the application suggesting that Mr Kalu was trying to take benefit of the Supreme Court judgement which nullified his earlier trial, and simultaneously trying to avoid the burden of retrial also ordered in the same apex court’s verdict.
“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 said.
The Lagos Division of the court had on December 5, 2019, convicted and sentenced Mr Kalu, currently Chief Whip of the Senate, to 12 years imprisonment, and his co-defendant, Udeh Udeogu, to 10 years in jail for diverting Abia State’s funds to the tune of N7.1 billion.
However, citing technical grounds, the Supreme Court on May 8, 2020, set side the conviction and sentence, and ordered that the defendants be tried afresh.
Before they could be re-arraigned, however, Mr Kalu, the incumbent Chief Whip of the Nigerian Senate, filed an application to stop his retrial.
At the hearing of Mr Kalu’s application Inyang Ekwo of the Federal High Court, Abuja, on Friday, the prosecuting lawyer, Mr Jacobs, in an impassioned submission, took the court through the tortuous journey of prosecuting Mr Kalu and his co-defendant.
The trial lasted 12 years before their convictions were upturned by the apex court.
“We cannot continue like that; everybody must be ready to bear the consequences of their actions. Filing a case to terminate the lifespan of another case is an abuse of court process.
“In 2007, we (the EFCC) filed a charge against the defendants. It was fraught with series of preliminary objections that went up to the Supreme Court until 2016 and they were all dismissed,” Mr Jacobs noted.
While closing his final argument on Friday, Mr Jacobs urged the judge to discountenance the argument of the former governor’s lead lawyer, Awa Kalu, that his client had spent five months in prison after a protracted trial, and that a retrial would amount to a “double-jeopardy”.
“My lord, because he (Mr Kalu) has spent five months in prison, therefore his retrial should be aborted,?” Mr Jacobs queried.
While adopting his final written addresses, the plaintiff’s lawyer, Awa Kalu, 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.
Date for ruling
After listening to the lawyers representing the parties on Friday, the judge, Mr Ekwo, gave a tentative date of September 20, for the verdict.
He said the court would notify parties in the suit of change in date if the judgment would not be ready before then.
Meanwhile, the chairman of the EFCC, Abdulrasheed Bawa, was seen conferring with Rotimi Jacobs, shortly after the suit was adjourned.
Convicted and subsequen release
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 N7.65 billion fraud.
Mr Udeogu was jailed 10 years.
The court also ordered Slok Nigeria Limited to be wound up and its assets forfeited to the federal government.
But 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.
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