Last week, we x-rayed the Supreme Court’s judgment in the Orji Kalu and Ude Jones Udeogu case, the facts of the case, Nigeria’s system of government and the difference between law and morality. Today, we shall take a look at the legal position and conclude on whether or not Orji Uzor Kalu can take benefit of the Supreme Court’s judgment given in favour of Ude Jones Udeogu.
The law is that if co-accused persons (Udeogu and Kalu) were to have different presentations and evidence led in proof of the charge against them, then the discharge of Udeogu may not necessarily lead to the discharge of Kalu. The Supreme Court put it thus in YUSUF v. FRN (2017) LPELR-43830 (SC), per Peter-Odili, J.S.C:
“It has to be noted that it is not in every case where an accused is tried jointly with another that the discharge of the one must lead to the discharge of the other as the appellant is pushing forward, as it is, the law that when the evidence against one accused is different from that against the other, a different conclusion will certainly arise at which one may be discharged and the other convicted. Each case is considered on its own merits and as happened in this particular case, the appellant seemed to have been soul of the fraudulent transaction and he was well tied up by overwhelming evidence which cannot be said to be the case with the co-accused that was discharged. It followed therefore that where there were some extenuating circumstances which inured to the advantage of the co-accused, the appellant could not be so considered as his circumstances had made a distinct peculiar presentation. See Idiok v. State (2006) 12 NWLR (Pt.993) 1 at 32.”
See also OKORO V. THE STATE (2012) LPELR-7846 (SC).
Kalu and Udeogu
For the records, Kalu and Udeogu were both convicted and sentenced to 12 years and 10 years’ imprisonment, respectively, on the 5th of December, 2019, for N7.1 billion fraud. The trial was a joint one, under one charge. It was the same judge. The court was the same, Federal High Court, Lagos. Some of the counts bordered on conspiracy between them and Slok Nigeria Ltd. The same facts and evidence were led by the witnesses. Thus, unlike the position espoused above by the Supreme Court in Yusuf v FRN (supra), Orji Kalu and Udeogu were tied together by the same umbilical cord. To attempt to separate them will amount to a futile attempt to separate Hamlet from the Prince of Denmark, or six from half a dozen. That was why none of them could swim afloat while the other sank. They were in the same boat that capsized on both of them in the raging torrent of the criminal trial. It must be stated that Kalu and Udeogu were jointly convicted and sentenced together under counts 24, 25, 27, 28, 30, 31, 32, 34, 37, 38 and 39 (11 whole counts out of 28). Kalu, on the other hand, was sentenced on 28 counts (counts 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38 and 39).
It is also pertinent to state that during the proceedings of Tuesday, October 22, 2019, when both the prosecution and defendants adopted their final written addresses, the prosecution had argued that the second defendant (Udeogu) had already admitted to the offence, both in his extra-judicial statement and under cross-examination. He put it thus: “the admission is binding on all defendants”. The judge had also held that “the case was conclusively investigated, as the prosecution conducted thorough investigations. No gaps were left unfilled; this is the acceptable practice.” So, what has changed? I humbly submit that nothing had changed between October 22, 2019, when the prosecution made the above submission and the 8th of May, 2020, when the Supreme Court delivered its judgment.
The Nigerian Correctional Service is hereby humbly advised to release both Orji Uzor Kalu and Ude Jones Udeogu (if not already released) and await their fresh trial as ordered by the Supreme Court.
Can Orji Uzor Kalu take benefit of the Supreme Court judgement in Sc.622C/2019?
The position in law and judicial precedents show that, in cases where an accused is tried jointly with another accused and their case is clearly inseparable and interwoven, the conviction of one can never stand where his co-accused is discharged and acquitted. The Supreme Court emphasized this in ALO v. STATE (2015) LPELR-24404 (SC), when it held that:
“Where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was discharged and acquitted.” Per OGUNBIYI, J.S.C (p. 47, paras. B-C).
The Court of Appeal had earlier in AFRIBANK NIG PLC v. HOMELUX CONSTRUCTION COMPANY LTD & ANOR (2008) LPELR-9020 (CA) affirmed this position of the law, thus:
“Generally, where there is a joint cause of action against two or more persons, a discharge as against one of them operates as a discharge of all because the cause of action is one, once it is discharged all persons otherwise liable are consequently released.” See Kadzi International Ltd v. Kano Tannery Co. Ltd (2004) 4 NWLR (pt.864) 545; Ihunde v. Samson Roger Nig. Ltd. (2000) FWLR 2782. The view above was apply described by Salami JCA in See Kadzi International Ltd v. Kano Tannery Co. Ltd (supra) at 160 – 161 in the following words:- “I also agree with the learned counsel for the first and second respondents that, learned trial judge, with respect, cannot approbate and reprobate. He is not entitled, in the circumstance of the suit, in which the parties are sued jointly, for find that he has no jurisdiction to try the claim in respect of one of the parties and then turn around to say he is competent to entertain the same suit in respect of the second person”. Smith L.J. in Duck v. Mayer (1899) 2 QB 511 at 513 stated: “It is, we think, clear law that a release granted to one joint debtor, operates as a discharge of the other joint tortfeasor, or the other joint debtor the reason being that the cause of action which is one and indivisible, having been realeased, all persons otherwise liable thereto consequently released”. Per PETER-ODILI, J.C.A. (Pp.33-34, Paras.C-B).
Only in 2018, the intermediate court reiterated this trite position of the law in UMANA & ANOR v. STATE (2018) LPELR-44403 (CA), as follows:
“The Court in its wisdom found the Appellants guilty for murder under count III yet could not find them guilty under count I based virtually on the same evidence adduced at the trial. Yet, it is a well settled principle, that when the evidence against two or more accused persons in a criminal case is in all material respect the same, and a doubt is resolved by the trial judge in favour of the accused persons, the same doubt must be resolved in favour of the other(s). As aptly held by the Apex Court: Differently put, where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was acquitted and discharged. See AKPAN VS. THE STATE  12 NWLR [Pt.780] 189 at 204, per Katsina, JSC [as he then was]. See also ABUDU vs. STATE  1 NWLR [Pt.1] 55 per Kazeem, JSC at 65. In the instant case, having critically, albeit dispassionately, considered the totality of the evidence of the prosecution, most especially the doubtful credibility of the evidence of the prosecution star witness, the PW1, the Court below ought with the same yardstick with which it weighed his evidence against the Appellants, under count 1 of the charge, have found his evidence against the Appellants equally unreliable and unsafe. See ABUDU VS. THE STATE [supra] at 65.” Per SAULAWA, J.C.A. (Pp. 21-22, Paras. A-B).
In SHEKETE V. NAF (2007) 14 NWLR (Pt. 1053) 159 at 202 (paras. C-D) (SC), the apex court reiterated this position of the law in ringing tones, as follows, concerning discredited evidence of an accused in a joint trial:
“Where a discredited evidence of some witnesses is used to discharge and acquit some accused persons in a joint trial, the same evidence cannot be used to convict some other accused persons facing the same or similar charges. See Edri v. State (2004) 11 NWLR (Pt. 885) 589; Shekete v. N.A.F. (2000) 15 NWLR (Pt. 692) 868; James v. N.A.F (2000) 13 NWLR (Pt. 684) 406.” Per Adamu JCA.
See also YAU V STATE (2012) LPELR-20798 (CA); and UKPE V. STATE (2012) LPELR-19715 (CA).
It is clear beyond argument that the case and trial of Kalu and Udeogu, being one, the same and joint, the decision of the Supreme Court setting aside the trial of Udeogu, applies with equal force and in similar measure to Kalu. For the avoidance of doubt, and for those moaning that the “fight against corruption,” has, in their perception, been “defeated,” the Supreme Court DID NOT SET Udeogu free, nor discharge him (the benefit of which Kalu is entitled to). It merely set aside the trial and “remitted to the Chief Judge of the Federal High Court for reassignment to another judge of the Federal High Court for trial de novo”, the charge against Ude Jones Udeogu. In other words, it is not yet Uhuru for them. So, be patient. Let the wheels of justice grind to their destination, even if slowly. True, justice delayed is justice denied. Similarly, justice hurried is justice crushed. See THE CHAIRMAN, NATIONAL POPULATION COMMISSION V. THE CHAIRMAN, IKERE LOCAL GOVERNMENT & ORS (2001) 7 S.C. (Pt. III) 90 at 97-8, 100; TRADE BANK PLC V. UDEGBUNAM & ANOR (2004) ALL FWLR (PT. 200) 1576 at 1590 C.A.
Even the much touted ACJA, whose section 396(7) has been roundly invalidated and struck down by the Supreme Court for brazenly challenging, eye-ball-to-eye-ball, the supremacy of the Constitution as the grundnorm, font et origo of our democratic dispensation (contrary to section 1(3) of the same Constitution), is not only to “promote the efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime,” but also the “protection of the rights and interest of the suspect, the defendant and the victim”. So, ‘fiat justicia ruat caelum’ (let justice be done though the heavens fall). Let me assure us all of one thing: the heavens have never fallen and will not now fall.