Justice Inyang Ekwo of the Federal High Court, Abuja on Monday temporary halted the re-trial of former Abia State Governor, Senator Orji Kalu, on alleged corruption charges.
Justice Ekwo temporarily stayed the re-trial while delivering ruling in an application by Kalu seeking leave to file a motion against his re-trial for alleged fraud committed when he served as governor of Abia State between 1999 and 2007.
Kalu was last year sentenced to 12 years imprisonment after he was convicted of misappropriating the sum of N7.1 billion belonging to Abia State.
He had already spent about six months in custody of the Correctional Services when the apex court voided his conviction and sentencing on the grounds that the trial judge having been elevated to the Court of Appeal erred in law to pass judgment on the matter.
The apex court, in its ruling in the appeal by Kalu’s co-defendant, Jones Udeogu, consequently ordered a fresh trial of the appellant.
Following the ruling of the Supreme Court, the federal government through the Economic and Financial Crimes Commission (EFCC) initiated a fresh charge against the defendants to which Kalu is objecting to.
Kalu, in the application for leave to file a suit against his re-trial by the EFCC, claimed his re-trial will amount to double jeopardy if allowed to go on.
Ruling in the application on Monday, Justice Ekwo held that the application of Kalu is meritorious and subsequently granted him leave to challenge his re-trial.
The judge then granted leave to Kalu to apply for an order prohibiting the federal government through the EFCC or any of its agents from re-trying Kalu for the same offence he was found guilty and convicted.
Justice Ekwo also permitted the senator representing Abia North Senatorial District to apply for an order restraining the government from harassing and or arresting the applicant in respect of the same offences which he had been convicted and sentenced.
In addition, Ekwo held that the order granting leave to Kalu to file the suit against the government shall operate as a stay of his trial which was scheduled to commence last week with his arraignment.
He also ordered the applicant to serve the court’s ruling and necessary court papers on the defendants, adding that parties in the suit should file all necessary processes, while the substantive matter was adjourned till February 23, 2021 for mention.
Kalu had, in an exparte application through his lawyer, Prof. Awa Kalu (SAN), submitted that having been tried, convicted and sentenced in suit number: FHC/ABJ/CR/56/ 2007, by the court, it will amount to double jeopardy if he is subjected to a fresh trial on same charge.
In a 21-paragraph affidavit deposed in support of his motion, the applicant chronicled the historical background of the trial from his first arraignment and re-arraignment in 2016 and 2017, before the Abuja division of the Federal High Court after the initial charges were amended by the EFCC.
Kalu disclosed that at the trial, the prosecution called a total of 19 witnesses and thereafter, closed its case, necessitating him together with other defendants to enter individually and respectively a no-case submission.
He stated that Justice Idris, in his judgment on December 5, 2019, convicted and sentenced him with respect to the extant charge.
“That following his conviction and sentence, he was incarcerated at the Kuje Correctional Centre where he served part of his term having first spent a few days in the Ikoyi Correctional Centre.
“That on May 8, 2020, the Supreme Court in judgment in appeal No: SC.62C/2019, Udeh Jones Udeogu vs FRN & 2 ors, held that the trial of the appellant at the trial court was conducted without jurisdiction and thereby ordered the retrial of the appellant (Udeh Jones Udeogu) without reference to him,” he said.
He argued that there is no extant ruling or judgment of a competent court in Nigeria ordering his trial having regard to the fact that the Supreme Court excluded him from the explicit order for retrial arising from charge No: FHC/ABJ/56/2007.
He added that 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 charge and either convicted or acquitted shall again be tried for that offence having the same ingredients as that offence serve upon the order of a competent court.
That his trial having been pronounced a nullity by the Supreme Court in its judgment of May 8, 2020 and without more cannot entitle the EFCC to institute the same charge against him.