The Court of Appeal sitting in Abuja, on Wednesday, struck out an appeal the Federal Government filed to reopen the trial of a former governor of Abia State, Senator Orji Uzor Kalu.
The appellate court, in a unanimous decision by a three-member panel of justices, held that the record of appeal FG transmitted before it was incompetent.
Justice J.O.K Oyewole, who read the lead judgment, held that the FG failed to properly transmit the record as prescribed by its extant rules, adding that it was neither stamped nor the official designation of the person who signed it indicated.
The court further held that the flaw in the record that was brought before it vitiated the competence of the entire appeal.
Consequently, it struck out the two appeals marked: CA/ABJ/CV/797/2021 and CA/ABJ/CV/798/2021, which FG filed against Kalu and his firm.
It will be recalled that Kalu, who was the governor of Abia State from 1999 to 2007, was earlier convicted and handed a 12-year jail term by the Lagos Division of the Federal High Court.
The trial court convicted him alongside his firm, Slok Nigeria Limited, and a former Director of Finance in the state, Mr. Jones Udeogu.
The Economic and Financial Crimes Commission (EFCC) had alleged that the defendants pilfered about N7.1 billion from the Abia State Treasury.
The Supreme Court, however, quashed his conviction following an appeal that was lodged by Udeogu, remitting the case file back for retrial.
A seven-man panel of justices of the apex court noted that trial Justice Mohammed Idris was already elevated to the Court of Appeal as at the time he sat and delivered the judgement that convicted the defendants.
It held that Justice Idris was no longer a judge of the High Court as of December 5, 2019, the day Kalu and his co-defendants were found guilty of the money laundering charge against them.
According to the Supreme Court, Justice Idris, having been elevated to the Court of Appeal before then, lacked the powers to return to sit as a High Court Judge.
Based on the judgement in favour of Udeogu, Kalu, who was already serving his jail term, through his lawyer, Prof. Awa Kalu, SAN, sought to be released from the Kuje correctional centre.
After Kalu was released from prison, the EFCC moved to re-arraign him and his co-defendants again.
Dissatisfied with the move, both Kalu, who is currently a Senator representing Abia North, and his firm filed separate suits to challenge their retrial.
Kalu argued that allowing the EFCC to try him afresh on the charge and the same facts upon which he was earlier convicted and sentenced would occasion him to suffer “double jeopardy.”
“The unassailable position of the law is that no person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted, shall again be tried for that offence having the same ingredients as that offence, save upon the order of a competent court.
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“The trial of the applicant, having been pronounced a nullity by the Supreme Court in its judgment dated the 8th day of May, 2020, and without more, cannot entitle the EFCC to institute the same charge against the applicant”, Kalu had told the court.
Canvassing reasons why his trial should not commence de-novo (afresh), Kalu, said he was earlier convicted and sentenced with respect to the same 36-count charge the EFCC entered against him.
“That following the conviction and sentence of the applicant, the applicant was incarcerated at the Kuje Correctional Centre, where he served part of his term, having spent a few days in the Ikoyi Correctional Centre” he told the court.
He noted that the Supreme Court, in the judgement it delivered on May 8, 2020, on Appeal No: SC.62C/2019, which was filed by his co-defendant, Udeogu, held that the trial of the appellant at the trial court was conducted without jurisdiction.
He argued that the apex court thereafter only ordered the retrial of the appellant (Udeogu) without reference to himself (Kalu).
“That there is no extant ruling or Judgment of a competent court in Nigeria ordering the retrial of the applicant, having regard to the fact that the Supreme Court excluded the applicant from the explicit order for retrial arising from Charge No. FHC/ABJ/CR/56/07 F. R. N. VS. Orji Uzor Kalu & 2 Ors”, Kalu argued.
Consequently, he prayed the court for an order of perpetual injunction restraining FG, through the EFCC or its agents, from further trying, harassing, and intimidating him with respect to the charge or any other charge based on the same facts, “as the applicant need not suffer double jeopardy.”
In a judgement he delivered on September 29, 2021, Justice Inyang Ekwo of the high court upheld Kalu’s argument and barred the anti-graft agency from reopening his case.
Not satisfied with the development, FG filed the appeal that was struck out on Wednesday.
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