Some Senior Advocates of Nigeria (SANs) have criticised Wednesday’s ruling of the Federal High Court in Abuja, which prohibited the Economic and Financial Crimes Commission (EFCC) from prosecuting a former governor of Abia State, Orji Kalu, in respect of a N7.1billion fraud case sent back for retrial by the Supreme Court last year.
The prominent senior advocates, Itse Sagay, Jibrin Okutepa, Femi Falana, and Paul Ananaba, expressed surprise at the ruling, which they said was against the spirit of the Supreme Court’s decision nullifying the previous trial and ordering a retrial of the N7.1billion fraud case.
PREMIUM TIMES reported that 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, nullified the proceedings leading to his and his co-defendants’ conviction.
The Supreme Court’s judgment delivered on an appeal by Mr Kalu’s co-defendant, Ude Udeogu, had ordered a retrial at the Federal High Court.
Mr Orji Kalu, who is the incumbent Chief Whip of the Nigerian Senate, got out of prison based on the apex court’s judgement, but quickly filed an application before the Federal High Court in Abuja to stop his retrial.
However, ruling on the application on Wednesday, Mr Ekwo, granted the ex-governor’s request.
The judge held that the apex court’s verdict did contain an order for Mr Kalu’s retrial.
He said subjecting Mr Kalu to a fresh round of trial after his previous conviction by the court would amount to double jeopardy.
But he ordered that the co-defendant, Mr Udeogu, who had been similarly tried and convicted, to be tried as specifically ordered by the apex court.
In an interview with this reporter Wednesday night, Mr Sagay, a professor of law and SAN, expressed surprise at the reasoning of the judge.
“The judgement is in defiance of the Supreme Court directive on this matter,” Mr Sagay, who chairs the Presidential Advisory Committee Against Corruption (PACAC), said, wondering why a High Court judge would appear to be taking a confrontational stance with the Supreme Court.
‘Kalu hasn’t paid any price’
Faulting the legal foundation of Mr Ekwo’s decision, Mr Sagay said the principle of “autrefois convict,” which the judge referenced, does not apply to Mr Kalu’s case.
The principle of “autrefois convict” simply refers to “a defendant’s plea stating that he or she has already been tried for and convicted of the same offence.
“The judge’s reference to the legal principle of autrefois convict does not apply here, because that (Mr Kalu’s) conviction has been nullified on technical grounds.
“That principle only applies to a case in which somebody has been convicted, he has served the sentence, paid the punishment, then you go and try him again for what he has already been punished for. That is Autrefois convict,” Mr Sagay explained.
“So, it is not applicable in this case. He (Mr Kalu) was convicted but he did not serve any punishment, because the Supreme Court held that the conviction was a nullity. This man (Mr Kalu) did not pay any price,” he added.
‘It’s a doom for Nigerian judiciary’
Another lawyer, Jibrin Okutepa, said the legal basis of the judgment is capable of turning Nigerian into a laughingstock in the comity of nations.
He said the verdict “spelled doom for the country’s judiciary”, as “foreign investors” would shun Nigeria.
“So, for me, today (Wednesday) is the darkest day in our legal history, where the person who is accused of being in breach of the penal laws of the country can choose the judiciary and go to court to obtain judgement in a manner of a chameleon. I can’t believe it!
“I feel ashamed that I belong to a profession that can do all of those things,” Mr Okutepa said.
He urged the EFCC, the federal government and all well-meaning Nigerians to rise up to the occasion and save the judiciary from this “embarrassment.”
“If Orji Uzor Kalu used that judgement of the Supreme Court and went before the Federal High Court to say, ‘Release me’ and he was released. How can he turn round in another court, and request he be freed when he is to be re-arraigned?,” Mr Okutepa asked.
Advice to EFCC
Mr Okutepa admonished the anti-graft agency to quickly move against Mr Kalu and arrest him, adding that the Chief Whip of the Senate obtained the order freeing him from prison through “deceit”.
“My advice is that the EFCC should proceed and arrest him (Mr Kalu) and take him to back to prison. Because if he says the judgement (of the Supreme Court) does not affect him, then the EFCC should go back to the Federal High Court that made the order for his release, and ask the court to vacate its earlier ruling that led to Mr Kalu’s release from prison.
“It is not something we will sleepover, otherwise we will not have investors in this country.
“We can’t be playing chess game with our justice system and expect to be taken seriously in the comity of nations,” he noted.
Similarly, Femi Falana, advised the EFCC to pursue an appeal against Mr Ekwo’s decision on the case.
He maintained that the court’s verdict had confirmed “the manipulation of the criminal justice system by members of the ruling class.”
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“Whether the Supreme Court ordered his (Mr Kalu’s) trial or not, since his co-defendant is to be tried, he (Mr Kalu) too has to be retried.
“The case has gone to the Supreme Court, it has gone to the Court of Appeal several times. It cannot happen to common people who have no access to lawyers,” Mr Falana said.
The human rights lawyer explained “members of the ruling class are above the law in Nigeria and that is what has been demonstrated by the case. It is a class matter.
“It is a demonstration of the class character of the criminal justice system in Nigeria.”
Another senior advocate, Paul Ananaba, disagreed with the reasoning of the judge on the suit, urging the EFCC to challenge the verdict at the appellate court.
“I don’t support the reasoning of the judge. Is the court now saying the man (Mr Kalu) is a convict?” Mr Ananaba wondered.