The Economic and Financial Crimes Commission (EFCC) has approached Court of Appeal, Abuja Division asking it to nullify the ruling of a Federal High Court sitting in Abuja which stopped the retrial of a former Governor of Abia State, Orji Uzor Kalu over a N7.1 billion fraud case.

Justice Inyang Ekwo had in September 29 ruling stopped the EFCC from retrying Kalu over the alleged offence.

Not satisfied with this, the anti-graft agency had filed a Notice of Appeal against the said judgement.

The commission similarly filed a separate Notice of Appeal in respect of Kalu’s firm, Slok Nigeria Limited.

In the nine grounds of appeal, the prosecuting counsel, Rotimi Jacobs (SAN) prayed the Court of Appeal to set aside the judgement of the lower court and dismiss the cases filed by Kalu and Slok Nigeria Ltd.

However, the Notice of Appeal against Slok Nigeria Ltd. has seven grounds.

In the two separate notices of appeal dated October 11, 2021, the anti-graft agency faulted the lower court reasoning which held Kalu’s retrial would amount to double jeopardy.

He submitted that the lower court excluded the most relevant evidence before it so as to shield the first respondent from criminal prosecution.

The anti-graft agency further argued that the judge erred in law when he, in one breath, agreed that the earlier trial, conviction and sentencing of Kalu was nullified, but in another breath, held that a retrial would subject the former governor to double jeopardy.

He submitted: “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 Federal Republic of Nigeria 1999 (as amended) and Section 238 of the Administrator of Criminal Justice Act, 2015 was wrong.”

Questioning the legal reasoning of the judge, the EFCC argued: “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 Federal Republic of Nigeria 1999 (as amended) and Section 238 of the Administrator of Criminal Justice Act, 2015,” was wrong.

“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 that 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 May 15, 2020 prayed 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 judgement in line with the decision of the Supreme Court.”

The appellant further challenged the trial court for holding that Kalu could not be tried again by the Federal High Court on the grounds that the Supreme Court did not order his re-trial.

The anti-graft agency noted that although it was based on the appeal filed by Udeogu that the Supreme Court voided the proceedings leading to their conviction and sentence, Kalu tendered the Supreme Court judgement before another judge of the Federal High Court (Justice Liman) who applied the judgement to him and ordered his release from prison on that basis of the judgement.

“The pronouncement of the Supreme Court as to the competence of the trial conducted by Hon. Justice MB ldris 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 judgement 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,” Jacobs wrote in the notice of appeal.

The EFCC further faulted the trial court for holding, among others, that “the appellant (EFCC) was merely appealing to the sentiments for the retrial of the first respondent and that the entire proceedings in exhibit RJ3 and RJ4 have no bearing with the proceedings of the court in this case.”