From Godwin Tsa, Abuja
The Abuja division of the Federal High Court has barred the Federal Government from retrying the former Governor of Abia State, Senator Orji Uzor Kalu, based on the N7.1 billion money laundering charge the Economic and Financial Crimes Commission, EFCC, earlier preferred against him.
Justice Inyang Ekwo in his judgment held that there was nowhere in the judgment of the Supreme Court of May 8, 2020, ordering the re-trial of Kalu or his firm, Slok Nigeria Limited.
The judge added that he lacked the constitutional powers to translate or expand the order of the Supreme Court to include the names of Orji Kalu and his firm, Slok Nigeria Ltd when the Supreme Court had not ordered their trial de novo.
Reacting to the judgment, counsel to Slok Nigeria Ltd, Chief Solo Akuma, SAN, said it was the true position of the law.
According to him, ‘I am full of joy and very thankful to God. It has shown how courageous the judge was in interpreting the constitution and the judgment of the Supreme Court delivered on May 8, 2020. As the judge said, there were no specific orders made for the re-trial of Orji Kalu and Slok Nigeria Ltd.’
In his judgment, justice Ekwo stated that ‘the crucial issue, in this case, is not about what the prosecution has articulated but what it has done. I am minded to say that the facts and circumstances in Okoh V State (Supra) heavily relied on by counsel for the respondent (EFCC) are quite far away from the facts and circumstances of this case.
‘In our jurisprudence, a case is an authority for what it actually decided. For a previous decision to bind on any court, the facts and the law in the subsequent case must be the same and similar to those which informed the court’s earlier decision.
‘Going by the provisions of section 36(9) of the 1999 constitution and section 238(2) of ACJA 2015, it cannot be denied that an order for re-trial is a prerequisite and consequential order upon a verdict or findings of a court being set aside by the court. That is the reason the Supreme Court ordered for the retrial of the appellant in the case before it, that is, appeal No; SC.622C/2019 in Ude Jones Udeogu V FRN & 2 Ors. (The respondent in this case).
‘It is significant to note that all the parties in these proceedings were parties in the appeal at the Supreme Court but the order for re-trial was made specifically against the appellant in that case who is the 2nd respondent in these proceedings. Can this court then or the Ist respondent (EFCC) on its own, translate or expand the order of the Supreme Court for the re-trial of the applicant (Kalu) in this case?
‘The jurisprudence of granting reliefs by the court is well settled, that is, the court does not grant relief to a non-party in a proceeding or to a party who necessarily has not asked for any relief.
‘It can be seen that though the applicant, 1st, 2nd and 3rd respondents were parties to the proceedings at the Supreme Court, it was to the appellant in that matter (Ude Jones Udeogu), that the court made the order setting aside the proceedings of Justice M. B. Idris (now JCA) and the order for trial de novo.
‘Simply put, the 1st respondent in this case neither sought nor obtained an order for trial de novo of the applicant. In fact, no such order exists, and I cannot be made to read into the judgment of the Supreme Court or section 36(9) of the 1999 constitution or section 238(2) of the ACJA 2015, that which is not there.
‘The principle stated in Braithwaite v.S.T.B (Nig) Ltd is that a court of law should stop where the statute stops in the exercise of its interpretative jurisdiction.
‘The 1st respondent or prosecution authority, in this case, cannot be allowed to simply wish away the order for re-trial upon the Supreme Court, having set aside the previous trial as provided by the provision of section 36(9) of the 1999 constitution and section 238(2) of ACJA 2015. The trite position of the law on the manner of compliance with statutory provisions of the law has not shifted.
‘Again, this court by the pronouncement of the Supreme Court is duty-bound to proceed on the re-trial of the applicant in this case and cannot exceed that mandate.’
Justice Ekwo described the averments of the counter affidavit filed by the EFCC and exhibits RJ3 and RJ4 as purely sentimental in nature and have no place in law.
‘The entire proceedings in exhibits RJ3 and RJ4 have no bearing with the proceedings in this case. All legal practitioners are aware that the court is not the appropriate place for issues of sentiments but law,’ he said.
The judge further held that the averments in paragraphs 4(o), (p) (q), (r), (s), (t), (u) and (v) of the counter affidavit of the EFCC are unnecessarily pre-emptive and bereft of factual foundations.
‘Where any pavement is pre-emptive, it is by that very fact speculative. Where any averment is speculative, it means it is opinionated and the law forbids opinion in an affidavit. It is not debatable that opinions generally arise from the conclusions. It is wrong for the deponent to use averments in an affidavit to make speculations. This is the reason why it is mandatory for averments in an affidavit to be predicated on facts, if not, such averments are considered as containing extraneous matters.’
On the propriety of employing judicial review and seeking the writ of prohibition by the applicant, Justice Ekwo held: ‘I have noted upon the facts and circumstances of this case that the applicant is seeking this relief because, in his opinion, the 1st respondent (EFCC) is exceeding its authority and the provisions of the law upon which these proceedings are founded and the order of the Supreme Court.
‘It is proper to seek to prohibit any person created by law who is seen as exceeding its legal authority. Judicial review by way of prohibition can also be sought against a tribunal or court in which proceedings are exceeding its statutory authority.
‘In the final analysis, the sole issue formulated by this Court is answered in the negative and it is my opinion that this answer had effectively and completely answered the respective issues formulated by parties in this case.
‘Therefore, going by the facts and circumstances of this case, I find that the case of the appellant must succeed on the merit and has so succeeded and by virtue of this, the applicant is entitled to some of the reliefs sought.
‘On the whole, the fact that there is no order for the re-trial of the applicant in the judgment of the Supreme Court or by virtue of section 36(9) of the 1999 constitution or section 238(2) of ACJA 2015, has allowed prayer 2 of the applicant to succeed.
‘It is hereby ordered that an order of prohibition is hereby made prohibiting the Federal Republic of Nigeria through the Economic and Financial Crimes Commission (her agent), her officers, servants, other agents, privies and any other person or bodies deriving authority from the Federal Republic of Nigeria from retrying the applicant on charge No: FHC/ABJ/CR/56/07- F.R.N v Orji Uzor Kalu & 2Ors. Or any other charge based on the same facts de novo, there being no extant judgment or ruling of a competent court in Nigeria mandating same.’
Kalu had in the application he filed through his team of lawyers led by Chief Awa Kalu, SAN, argued that allowing the EFCC to try him afresh on the charge and same facts upon which he was earlier convicted and sentenced on December 5, 2019, would occasion him to suffer ‘double jeopardy’.
According to him, ‘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 or a competent court.
‘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 Economic and Financial Crimes Commission to institute the same charge against the Applicant.’
Canvassing reasons why his trial should not commence de-novo (afresh), Kalu, said he was convicted and sentenced by Justice Mohammed Idris of the Federal High Court in Lagos with respect to the extant charge 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 noted that the Supreme Court had 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 FRN 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.’