Recall that Justice Inyang Ekwo of the Federal High Court on September 29, stopped the EFCC or any other government agencies from retrying Kalu.
Kalu
The Economic and Financial Crimes Commission has challenged a verdict stopping the retrial of Senator Orji Kalu accused of alleged N7.1bn fraud.
Kalu is a former Governor of Abia state.
Recall that Justice Inyang Ekwo of the Federal High Court on September 29, stopped the EFCC or any other government agencies from retrying Kalu.
The judge gave the judgement after the former governor had asked the court to stop the anti-graft agency from retrying him.
But the EFCC has now appealed the judgement of the court prohibiting it from retrying Kalu on allegations of money laundering.
In the nine-ground appeal filed against Kalu, the EFCC submitted that the judge erred in law when he had agreed that the earlier trial, conviction and sentencing of Kalu was duly voided, but turned around to hold that a retrial would subject the ex-governor to double jeopardy.
The commission argued that “the trial judge was wrong to have held that the plea of autrefois acquit and autrefois convict (previously acquitted and previously convicted) and the principle of jeopardy availed the first respondent (Kalu) and that the re-trial of the respondent would amount to the violation of the provisions of Section 36 (9) and (10) of Constitution of the Federal Republic of Nigeria 1999 (as amended) and Section 238 of the Administration of Criminal Justice Act, 2015.
“Having found that the conviction of the first respondent (Kalu) was delivered by a court without competent jurisdiction, it is absurd for the lower court to depart from the express provisions of section 36 (9) of the 1999 Constitution (as amended) and Section 238 of the ACJA, 2015 and then apply the principles of double jeopardy and autrefois convict.
“The lower court failed to consider the decisions of the Supreme Court and the Court of Appeal cited before it to the effect that the doctrine of double jeopardy or autrefois convict is only applicable to a decision delivered by a court of competent jurisdiction.
“The evidence before the lower court was that the Supreme Court, in appeal No: SC.622C/2019 between Ude Jones Udeogu v. FRN, had nullified the proceedings conducted by Hon. Justice M.B. Idris led to the convictions and sentence of all the respondents in this appeal.
“However, it was only Ude Jones Udeogu that was the appellant. Since it was a joint trial of all the respondents, the first respondent, by his motion filed on 15th May 2020 prayed to the Federal High Court presided over by Justice A.M. Liman that the proceedings that led to his conviction be nullified on the ground that Hon. Justice M.B. Idris, JCA lacks jurisdiction to deliver the judgment in line with the decision of the Supreme Court.
“The pronouncement of the Supreme Court as to the competence of the trial conducted by Hon. Justice M.B. Idris and the re-trial order in appeal No: SC.622C/2019 was limited to the said second respondent herein (Udeogu).
“The first respondent took advantage of the decision of the Supreme Court in appeal No: SC.622C/2019 and filed a motion before Hon. Justice A.M. Liman that since he was tried jointly with the other respondents and in view of the decision of the supreme court, that his conviction and sentence should also be declared a nullity.
“The lower court permitted the first respondent to rely on the decision of the Supreme Court in appeal No: SC.622C/2019 to take benefit of the order of nullity made by the Supreme Court on the judgment of Hon. Justice M.B. Idris and to avoid the burden of a retrial order made by the Supreme Court.
“The law will not permit the first respondent to approbate and reprobate at the same time.”