By Yemi Oyeyemi, Abuja
A Federal High Court in Abuja has ruled that former Abia State Governor, Orji Uzor Kalu and his firm, Slok Nigeria Limited cannot be re-tried in relation to their alleged involvement in N7.1 billion fraud while Kalu served as governor.
But prosecuting agency, the Economic and Financial Crimes Commission (EFCC), in a statement, says it will appeal the ruling by Justice Inyang Ekwo of the Federal High Court stopping the Commission from retrying him.
Kalu was serving a 12-year jail term for N7.1billion fraud when the Supreme Court, ruling on an appeal by Kalu’s co-defendant, Ude Udeogu, on 8 May 2020, nullified the proceedings leading to their conviction.
The Supreme Court had ordered a retrial at the Federal High Court. But kalu who profited from the ruling to secure release from Kuje Correctional Centre, filed an application before the Federal High Court in Abuja to stop his retrial.
Ruling on the application Wednesday, Justice Ekwo, granted the ex-governor’s request on the grounds that the apex court’s judgment did not order the retrial of Kalu and that by virtue of Section 36 (9) of the 1999 constitution as amended, or Section 283 (2) of the ACJA (Administration of Criminal Justice Act), “no person can be retried on the offence upon which he has been convicted”.
EFCC says it believes the judge erred in the ruling as Section 36(9) of the 1999 constitution is applicable only where the previous judgment was by a court of competent jurisdiction. In this case, the apex court had in the said judgment described the process that led to the conviction of Kalu as a nullity because the Judge came from the Court of Appeal to decide the matter.
The Commission further avers that the court erred in its ruling that the Supreme Court did not order the retrial of Kalu; that it amounts to cherry-picking for Kalu to profit from the decision of the Apex court nullifying the conviction of his co defendant, Ude Udeagu but is not prepared to face the burden of retrial.
Justice Inyang Ekwo, in the judgment, held that since Kalu and his firm were not mentioned in the judgment of the Supreme Court, which voided their earlier conviction and sentencing, and ordered a retrial, the judgment could not be applied to them.
Justice Ekwo said that it was only the former Account Director in Abia State Government House, Ude Jones Udeogu, named in the Supreme Court judgment, that could be re-tried as directed by te Supreme Court.
The judge rejected the proecution’s argument that having benefited from the judgment of the Supreme Court, Kalu and his firm cannot claim the order for retrial could not apply to them.
Kalu was charged and tried with Slok and Udeogu for their alleged complicity in diverting the N7.1b from Abia State’s coffers.
They were convicted and, while Kalu and Udeogu were imprisoned for 12 and 10 years, Slok was wound up.
But, upon an appeal by Udeogu, the Supreme Court set aside their trial and conviction in a judgment on May 8, 2020 on the grounds that the trial judge, having been elevated, ought not to have continued to hear the case.
In the judgment given in an appeal, marked: SC/62C/2019 filed by Udeogu, the Supreme Court ordered a retrial in the case.
Although Kalu and his firm were not appellants in the appeal in respect of which the Supreme Court gave its judgment, they later tendered the judgment before the Federal High Court Lagos and the court applied the judgment to them.
When the prosecuting agency, the Economic and Financial Crimes Commission (EFCC) applied for a retrial, Kalu and his firm sued to challenge the application the retrial order against and argued among others that a retrial would subject him to double jeopardy.
The judgment given on Wednesday was on the suits by Kalu and his firm.
