That S’Court nullification of Orji Kalu’s conviction

On December 5, 2019, a Federal High Court in Lagos sentenced former Governor of Abia State, Orji Uzor Kalu, to 12-year imprisonment.

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That was after the trial court found him guilty on all the 39-count charge of stealing N7.1 billion belonging to the people of Abia State while he held sway as the state’s chief executive.

The trial court had also jailed a former Commissioner for Finance in the state, Jones Udeogo, for 10 years while Kalu’s company, Slok Nigeria Limited, was ordered to be wound up and its assets forfeited to the Nigerian government.

Both Udeogo and Slok were accused of conspiring with the governor to commit the fraud.

Kalu and his company, Slok Nigeria Limited, were found guilty on all the 39 counts while Udeogo was convicted on 34 counts.

But as soon as the judgment was handed down, Kalu rejected the verdict and appealed to the Court of Appeal on a couple of grounds including that the judgment was a nullity because the trial judge who delivered judgment in the case had ceased to be a justice of the high court having been elevated to the Appeal Court bench.

From prison, Kalu fought the appeal to regain his freedom to the Supreme Court where a seven-member panel of the highest court headed by Justice Amina Augie, last Friday, quashed the judgment of the Federal high court, Lagos which convicted him.

The law lords, in the decision, held that the Federal High Court in Lagos acted without jurisdiction when it convicted Kalu, his firm, Slok Nigeria Limited and former Director of Finance in Abia State, Jones Udeogu.

Specifically, the court held that the trial Justice, Mohammed Liman, was no longer a judge of the Federal High Court as at the time he sat and delivered the judgment that convicted the defendants.

According to the Supreme Court, Justice Liman, having been elevated to the Court of Appeal before then, lacked the powers to return to sit as a High Court Judge.

The apex court held that it was though not unaware of the fiat that was issued to Justice Liman by the Court of Appeal President pursuant to section 396(7) of the Administration of Criminal Justice Act, it reasoned that both the fiat and the decision of the judge to deliver the judgment were unconstitutional.

Consequently, the apex court vacated the judgment that convicted the defendants and ordered a fresh trial in the case.

It is trite in law that when a judgment is nullified, it is as if the trial in the case never held.

We recall that the trial of Kalu started about 13 years ago at the Federal High Court located in OAU Quarters, Maitama, Abuja, after his tenure as state governor expired in May 2007.

It is a common knowledge that the case suffered serious setback as Kalu and his alleged accomplices appealed virtually all rulings entered in the case by the trial Federal high court through the Court of Appeal to the Supreme Court, and each time, secured stay of proceedings at the trial court to enable the appellate courts decide his applications one way or the other.

The charge itself was amended a number of times by the prosecution while the case file not only moved from one judge to another but also from one jurisdiction to another.

We believe the Kalu’s trial falls in the class of cases that necessitated the enactment of the innovative Administration of Criminal Justice Act (ACJA) signed into law by former President Jonathan Goodluck in 2015.

The ACJA law bars the court from granting orders of stay of proceedings pending appeal on preliminary issues and essentially corrects the lacuna in the repealed Criminal Procedure Act and Criminal Procedure Code.

We are aware that it was not long after the Act was enacted that some stakeholders raised the alarm that the ACJA 2015 contained some provisions which ran contrary to those in the nation’s grundnorm with a call on relevant authorities to address the grey areas by amending the constitution so that the justice system can reap the full benefits of the law.

We are surprised that since 2015 when the Act was signed into law, relevant authorities are yet to take step to make necessary amendment in spite concerns raised by stakeholders, thereby causing the state to lose so much time and money in prosecuting a case for 13 years only to start afresh.

The failure by the government to take necessary steps could also have occasioned serious injustice to the defendants who had been imprisoned for almost five months in the event the case eventually proceeds on fresh trial and judgment turns out in their favour.

Although news reports indicated that ex-Governor Kalu was the one who requested for a fiat that Justice Idris Liman should be allowed to conclude with his case despite his promotion to the Court of Appeal, only to turn around to challenge the judge’s decision on the ground of the fiat because the verdict was against him, it is not only worrying that the intermediate appellate court fell into Kalu’s booby trap but that the EFCC too could play into the hands of the defendants.

We are of the opinion that the prosecution should quickly commence action on the fresh trial of Kalu so that the matter is decided one way or the other as soon as possible.

We also urge relevant authorities to take steps to amend the 1999 Constitution in areas where the provisions of ACJA 2015 run contrary to the organic law of the land.