Court Of Appeal: FG Can Proceed With Case Against Sen. Kalu Despite Supreme Court Quashing His Conviction For Alleged N7.1bn Fraud

A former Abia Governor Orji Uzo Kalu failed on Friday in a bid to stop the Federal Government from appealing the September 29, 2021 judgment by Justice Inyang Ekwo of the Federal High Court, Abuja stopping his prosecution on a N7.1billion money laundering charge.

In two rulings on Friday, a three-member panel of the appellate court rejected the objection by Kalu and his firm, Slok Nigeria Limited to the application for leave to appeal out of time filed by the Fed Govt through the Economic and Financial Crimes Commission (EFCC).

Kalu and Slok had argued, among others that the Court of Appeal, having delivered a judgment on March 6, 2024 striking out an earlier appeal by the Fed Govt, the court had become functus officio and could not longer take any further steps on the case.

Justice Ishaq Sanni, who read the rulings on Friday, noted that the March 6, 2024 judgment did not determine the substance of the appeal and thus, was not a judgment given on the merit.

Justice Sanni held that the Court of Appeal, in the March 6, 2024 judgment only struck out the appeal on the grounds that the record of appeal was not properly certified, because the official of the Federal High Court, who certified the record did not include his or her designation.

He held that since the March 6 , 2024 judgment was delivered after the three months allowed an aggrieved party to appeal, the Fed Govt was in order to have filed its application for extension of time to appeal.

Justice Sanni proceeded to issue an order extending the time within which the Fed Govt should file a notice of appeal against the September 29 judgment of the Federal High Court.

He also ordered the Fed Govt to file its notice of within 14 days.

The rulings were on the appeals marked: CA/ABJ/PRE/ROA/CV/430MI/2024 (FRN v. Orji Uzo Kalu and two others) and CA/ABJ/PRE/ROA/CV/431MI/2024 )FRN v. Slok Nigeria Limited and two others.

Kalu, who served as Governor of Abia State from 1999 to 2007, was previously convicted and handed a 12-year jail term by the Lagos Division of the Federal High Court. He was convicted alongside his firm, Slok Nigeria Limited, and a former Director of Finance in the state, Mr. Jones Udeogu, over allegations of embezzling about N7.1 billion from the Abia State treasury.

However, after Udeogu lodged an appeal, the Supreme Court quashed his conviction and ordered a retrial. The apex court ruled that the trial judge, Justice Mohammed Idris, had been elevated to the Court of Appeal before the judgment was delivered, and thus lacked the authority to continue hearing the case.

As a result of this ruling, Kalu, who had already begun serving his sentence, applied to be released from the Kuje Correctional Centre through his lawyer, Prof. Awa Kalu, SAN. After his release, the EFCC sought to re-arraign him and his co-defendants. Dissatisfied with this, Kalu and his firm filed separate suits to challenge their retrial.

Kalu argued that allowing the EFCC to retry him on the same charge and facts upon which he had already been convicted would subject him to “double jeopardy.” He emphasized that no person should be tried twice for the same offense, particularly after the Supreme Court had declared his original trial a nullity.

In seeking to prevent a retrial, Kalu pointed out that he had already been convicted and sentenced on the same 36-count charge. He noted that after his conviction, he served part of his sentence at the Kuje Correctional Centre, having also spent time in the Ikoyi Correctional Centre. He further highlighted that the Supreme Court had ruled that his trial had been conducted without jurisdiction and had only ordered the retrial of his co-defendant, Udeogu.

Kalu sought a perpetual injunction to prevent the Federal Government, through the EFCC, from further prosecuting him based on the same facts or any other charge arising from the same allegations.

In a ruling delivered on September 29, 2021, Justice Inyang Ekwo of the Federal High Court upheld Kalu’s argument and barred the EFCC from reopening the case. However, following an appeal by the Federal Government, the Court of Appeal, on March 6, 2024, halted the attempt to retry Kalu, ruling that the record of appeal submitted by the Federal Government was flawed, as it was neither stamped nor had the official designation of the person who signed it.

The Court of Appeal concluded that the error in the record made the appeal incompetent, and thus, the appeal was struck out on technical grounds. Dissatisfied with this decision, the Federal Government took the matter to the Supreme Court, where it was granted a favorable ruling on Friday.

Justice Ishaq Sanni, who read the ruling, dismissed the objections raised by Kalu and his firm as lacking merit. He clarified that the Court of Appeal’s decision was based on a technicality and should not be regarded as a judgment on the merits of the appeal.

The Supreme Court held that the Federal Government was right to seek an extension of time to file its appeal, as the three-month window for filing had expired. The Court gave the Federal Government 14 days to file its notice of appeal.