The Court of Appeal in Abuja on Wednesday struck out an appeal seeking a retrial of a former governor of Abia State, Orji Kalu, over charges of N7.1 billion fraud.
In the decision anchored on a technical ground, a three-member panel of the Court of Appeal said the records of proceedings at the Federal High Court in Abuja were not properly compiled and transmitted to the appellate court for adjudication.
Delivering the lead judgement on Wednesday, Joseph Oyewole, referencing the Court of Appeal procedural rules and section 104 of the Evidence Act, said it was mandatory for a public officer in custody of the records of the trial court’s proceedings to certify at the foot of such documents that were tendered before the court.
“The Court of Appeal cannot adjudicate on a case whose records of appeal were not properly transmitted. The record of appeal is incompetent. The appeal is hereby struck out,” Mr Oyewole said.
But EFCC’s lawyer Oluwaleke Atolagbe, told journalists shortly after Wednesday’s ruling that he would refile the appeal for it to be heard and determined on its merit.
Background
In September 2021, a judge of the Federal High Court in Abuja, Inyang Ekwo, barred the Economic and Financial Crimes Commission (EFCC) from retrying Mr Kalu, who was earlier convicted of N7.1 billion fraud.
Mr Kalu, a serving senator representing Abia North, was already serving a 12-year jail term for the offences when the Supreme Court, on 8 May 2020, set aside the proceedings leading to his and his co-defendants’ conviction.
The Supreme Court’s judgement delivered on an appeal by Mr Kalu’s co-defendant, Ude Udeogu, had ordered a retrial at the Federal High Court.
Mr Kalu went on to secure his release from prison based on the Supreme Court’s verdict but quickly applied to the Federal High Court in Abuja to stop his retrial.
In his decision on the issue, Mr Ekwo held that the Supreme Court’s judgement did not order the retrial of Mr Kalu.
The judge cited section 36 (9) of the Nigerian constitution and Section 238 (2) of the Administration of Criminal Justice Act (2015), in saying, “no person can be retried on the offence upon which he has been convicted.
However, the defiant EFCC through its lawyer, Oluwaleke Atolagbe, approached the appellate court to have Mr Ekwo’s decision nullified.
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 N7.1 billion fraud.
The judge sentenced his co-defendant, Udeh Udeogu, to 10 years in jail for diverting Abia State’s funds.
The court also ordered Slok Nigeria Limited to be wound up and its assets forfeited to the federal government.
But, ruling on Mr Udeogu’s appeal, the Supreme Court on 8 May 2020 set aside the conviction and sentence on the grounds that the judgement 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 (now retired), 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 High 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.
As EFCC commenced moves to enforce the other leg of the Supreme Court‘s judgement for a retrial, Mr Kalu rushed to the court to file an application to block it.
His lawyer, Awa Kalu, a Senior Advocate of Nigeria, 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 led to the nullification of the entire proceedings at the trial court.
The judge, Mr Ekwo, agreed with the application and prohibited Mr Kalu’s retrial.
However, the court ordered the retrial of the co-defendant, Udeh Udeogu, who initiated the Supreme Court appeal.
Picking, choosing
The lead prosecuting counsel, Rotimi Jacobs, a Senior Advocate of Nigeria, had pointed out a contradiction in Mr Kalu’s arguments at the lower court.
“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 the plaintiff and his co-defendant be tried denovo (afresh). So, there must be a conviction or an acquittal by a competent court,” Mr Jacobs had said.
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