EXPLAINER: Why Judge Ordered Criminal Retrial Of Only Orji Kalu’s Ex-Aide

Mr Udeh Jones Udeogu, an ex- director of finance and accounts to former Abia State Governor, Orji Uzor Kalu, will be the only one to face criminal retrial by the Economic and Financial Crimes Commission (EFCC) come January 11,12, 13, 2022, while his former principal has been spared.

The development followed the judgement of the Federal High Court sitting in Abuja on Wednesday which stopped the federal government and its agencies from retrying Kalu and his company, SLOK Nigeria.

Recall that Kalu, SLOK and Udeogu were co-defendants in a fraud trial instituted by the EFCC in 2007.

The Federal High Court, Lagos where they were tried had found them guilty of diverting public funds and sentenced them to 12 years in prison.

But the Supreme Court ordered that their conviction by the trial court be quashed for lack of jurisdiction and an order was made for the case to be retried at the lower court.

But Kalu and his company had filed a suit asking Justice Inyang Ekwo to make an order “prohibiting the federal government, through the EFCC, its officers, servants, others, agents, privies and any other person or bodies deriving authority from the Federal Republic of Nigeria, from retrying him on charge No. FHC/ABJ/CR/56/2007 between FRN vs Orji Kalu & 2 ors, or any other charge based on the same facts de novo, there being no extant judgment and ruling of a competent court in Nigeria mandating same.”

But EFCC’s lawyer, Rotimi Jacobs SAN, had argued that though the Supreme Court said that the fraud trial of the three parties is a nullity, they were asked to go back to the Federal High Court.

” They cannot take benefit of that and avoid trial. They cannot say because I have spent years in prison, it amounts to double jeopardy. The condition is that there must be a conviction, a proper conviction,” he said.

He argued that the EFCC was statutorily empowered to enforce all laws bordering on economic and financial crimes.

Further praying for the retrial of Kalu and SLOK , EFCC stated in their counter affidavit that the application filed by Kalu and his company with Udeogu as a respondent ” is intended to remove the statutory duty of the prosecution to prosecute for the offence prescribed by law.”

But Justice Inyang Ekwo held that the order of the Supreme Court in Appeal No. SC.622C/2019 was filed by Udeogu vs FG and two others.

He said that the apex court quashed the conviction of the parties and returned the case to the trial court while particularly ordering the retrial of Udeogu , the appellant.

“It is significant to note that all the parties in these proceedings were parties in the appeal at the Supreme Court but the order for retrial was made specifically against the appellant (Udeogu) in that case who is the 2nd respondent in these proceedings.

“Can this court then or the 1st Respondent (EFCC) on its own, translate or expand the order of the Supreme Court for the retrial of the Applicant (Kalu) in this case?,” he queried.

He said that the apex court set aside the proceedings of the Lagos trial court while ordering the “trial de novo” (retrial) of Udeogu.

“Simply put, the 1st respondent(EFCC) in this case neither sought nor obtained order for trial de novo of the applicant. In fact, no such order exists and I cannot be made to read into the judgement of the Supreme Court.”

He said that by the pronouncement of the Supreme Court, he is duty-bound to proceed on the retrial of Udeogu and cannot “exceed that mandate.”

He said that EFCC insisting on retrying Kalu and his company but not Udeogu, was based on sentiments rather than the law.

He said that the decision on Charge No. FHC/ABJ/CR/56/07 FRN v Orji Uzor Kalu & 2 Others of M.B. Idris, JCA has been made by the Supreme Court on 5th December, 2019 and that judgement is final and cannot be re-litigated.