By Emmanuel Onwubiko
This essay is a treatise on what is regarded as the most tendentious and malicious act of a state law enforcement agency which is exactly on the many years that the Economic and Financial Crimes Commission has waged brazen prosecution of one of the most beloved Igbo man and politician Senator Orji Uzor Kalu who is now the Chief Whip of the Ninth Session of the Upper chamber of the National legislature.
But first, I have to explore a unique academic exercise that became my past time during my unsuccessful attempt at becoming an ordained Priest of the most Holy Roman Catholic Church.
As I aforesaid, in my early years as a Philosophy Student at the Roman Catholic Seminary in Nekede near Owerri, Imo State, one of the most entertaining but profoundly mysterious books I got used to was this book on the general studies of earliest fathers of Philosophy. It was generously made available in our rich library facility in Nekede.
Incidentally, the book was the most commonest lecture reference books that our Professors gave us to read through before lectures. From this book, I learnt then that the African born theologian cum Philosopher of the finest breed Saint. Augustine was intensely concerned over his personal destiny provided the driving force for his philosophic activity.
From his early youth, he suffered from a deep moral turmoil, which drove him to a life-long quest for true wisdom and spiritual peace.
He was born in Tagaste in the African province of Numidia in 354 A.D. His father was a pagan, but his mother, Monica, was a devout Christian.
At the age of sixteen, Augustine began the study of rhetoric in Carthage, a port city given to licentious ways.
Though his mother had instilled in him the ways of Christian thought and behavior, he threw off this religious faith and morality, taking at this time a mistress by whom he had a son and with whom he lived for a decade.
At the same time, his thirst for knowledge impelled his extremely able mind to rigorous study, and he became a successful student of rhetoric, so the philosophical historian stated.
Augustine’s chief argument regarding law and justice was that the political state is not autonomous, that in making laws the state does not merely express its power to legislate; the state must also follow the requirements of Justice.
Justice is a standard, moreover, which precedes the state and is eternal. The historian recorded that what made Augustine’s argument unique was his novel interpretation of the meaning of justice.
He accepted the formula that said that justice is a virtue distributing to everyone his due. But, he asked, what is due to anyone? He rejected the notion that justice is conventional, that it will differ with each society. For him, justice was to be discovered in the structure of human nature with its relation to God.
Hence, he said that Justice is “the habit of the soul which imparts to every man the dignity due him… Its origin proceeds from nature . . . and this notion of justice… is not the product of man’s personal opinion. But something implanted by a certain innate power.”
To require the state to follow such a standard was obviously to place heavy moral limitations upon political power, they adumbrated.
Indeed, Augustine argued that if the laws of the state were out of harmony with natural law and justice, they would not have the character of laws, nor would there be a state. He said, “If then a commonwealth be an estate of the people, and that there be no people that are not united in one consent of the law: nor is that a law which is not grounded in justice: then it must follow, where no justice is, there no commonwealth is.”
This Augustinian historicity of the etymology of justice takes us straight to the unfolding legal process unleashed venomously against distinguished Senator Orji Uzor Kalu by the northern dominated Economic and Financial Crimes Commission in the last couple of years, is already generating interest in some quarters because of the intriguing trajectories of the matter which began as it were from the Federal High court and got up to the nation’s apex court and then back to the Federal High Court whereupon the presiding judge gave a CLEAN BILL OF HEALTH TO DISTINGUISHED SENATOR ORJI UZOR KALU. In the first originating suit at the Federal High Court, the then judge who handled the matter got promoted to the Appellate Court but he chose to continued as a Federal High Court judge even after he had been sworn in as an Appeal court judge.
Justice Mohammed Idris of a Federal High Court in Lagos, had then, fixed December 2, 2019, to deliver Judgment in the alleged fraud trial of former Governor of Abia, State, Orji Kalu which he went ahead to read and ended up convicting the former governor and the current Chief Whip of the Senate of the Federal Republic of Nigeria.
Orji Uzor Kalu was first arraigned in a suit number FHC/ABJ/CR/56/07 in 2007.
The Economic and Financial Crimes Commission (EFCC) again, on October 31, 2016, charged Kalu, his former Commissioner for Finance, Ude Udeogo, and a Company, Slok Nigeria Ltd. with 34 counts of alleged fraud.
The charges were however subsequently amended and increased to 39 counts. Kalu and others pleaded not guilty to the charges, and were granted bail.
Justice Idris who had been sitting as trial judge over the matter against Kalu, was later elevated to the Court of Appeal. As I said earlier, the promoted Appeal Court judge comically chose to continued as a Federal High Court judge even as an Appeal court judge in reality.
As recorded, in his address, defence counsel, Chief Awa Kalu, SAN, urged the court to uphold his submissions as canvassed.
He, however, made reference to a portion of the prosecution’s written address on pages 107 to 109 in which the prosecution had made references to first defendant.
According to him, the defendant did not give any character evidence to warrant such assertion.
He, therefore, urged the court to order the prosecution to withdraw that paragraph and where the prosecution fails, the court should call on parties to address it on same. In response, the EFCC Counsel, Mr Rotimi Jacobs, SAN, refused to withdraw the said paragraphs.
According to Jacobs, the statement by the defendant was to the effect that he did not receive up to N7 billion during his administration which sum he is being accused of and that he had provided some of the funds for running Abia State at the time.
Jacobs told the court that he had shown in his processes that during the period, Abia received up to N137 billion.
Justice Idris then said he would consider all issues raised in his judgment. He adjourned the case to December 6, 2019 for Judgment.
The court, on December 6, 2019 found the former Abia Governor and two others guilty of N7.65 billion fraud.
Kalu’s co-defendants were his firm, Slok Nigeria Limited and Udeh Udeogu, who was Director of Finance and Accounts at the Abia State Government House during Kalu’s tenure as Governor.
The current Chief Whip of the Senate, under the platform of the All Progressives Congress (APC) was subsequently sentenced to 12 years imprisonment for N7.65 billion fraud, among other multiple sentences ranging from 3 years to 5 years on 27 counts.
Justice Mohammad Idris also convicted and sentenced his two other accomplices who were also found guilty of N7.65 billion fraud.
They got multiple sentences between 10 years and 3 years. The Judge also ordered that Slok be wound up and its assets forfeited to the Federal Government.
In a legal twist, however, on June 3, 2020, Kalu was released from prison following a reprieve he got from the nation’s highest court which found that the process of procuring the initial sentencing was fraught with irregularities.
The former governor and distinguished Senator of the Federal Republic of Nigeria Senator Orji Uzor Kalu also known as OUK regained his freedom after the Federal High Court sitting in Lagos ordered his immediate release from prison based on the verdict of the Supreme Court of Nigeria.
Most legal commentators say that what EFCC embarked on I the case of Orji Uzor Kalu amounted to malicious prosecution.
A legal expert in www.resolutionlawng.com explained that Malicious prosecution could be defined as a tort arising from unsuccessful criminal or civil proceedings instituted against another party with malice and without probable or reasonable cause. It is also defined as the tort of initiating criminal prosecution or civil suit against another party with malice and without probable cause. Where any person has been maliciously prosecuted, such person may bring an action in tort seeking damages against the accusers. The case of OGBONNA v. OGBONNA & ANOR (2014) LPELR-22308(CA) was instructive on it.
Malicious prosecutions are outright abuse of process and usually damage to the character, person, liberty, property or finance. In the circumstance, the Plaintiff would have illegitimately used the coercive powers of the state to cause harm to another, the Defendant and the coercive powers of the state are, thus, also abused.
For a claimant to succeed in an action for malicious prosecution, he or she must plead and prove the followings;
The prosecution proceedings (normally criminal) were initiated by the prosecutor against the plaintiff;
Termination of the prosecution proceedings was in the plaintiff’s favour;
No reasonable or probable cause for the prosecution;
Evidence of malice on the prosecutor’s part; and
That the plaintiff suffered actual damage.
See the case of EJIKEME V. NWOSU (2002) 3 NWLR (Pt. 754) 356; (2001) LPELR CA/J/76/94
The onus is on the plaintiff to prove each of the elements stated above, the expert opined.
The Federal High Court, Abuja then, stopped the Economic and Financial Crimes Commission, (EFCC) from retrying former Abia Governor, Sen. Orji Uzor Kalu over alleged N7.1 billion fraud.
The trial judge, Justice Inyang Ekwo gave the order while delivering judgment in an application filed by the former governor seeking an order of the court prohibiting the Federal Government through the EFCC from retrying him on a charge for which he had already been tried and convicted.
“An order is hereby made prohibiting the Federal Government through the EFCC, her agents, officers, servants, other agents and any other person or bodies deriving authority from the Federal Government from retrying the applicant (Kalu) on charge no. FHC/ABJ/CR/56/2007 FRN vs Kalu and two others on or any other charge based on the same facts,
the said applicant having been tried, convicted and sentenced by the judgment of this court dated Dec. 5, 2019, by Justice M.B Idris.”
Justice Ekwo held that since Kalu was not mentioned in the judgment of the Supreme Court, which voided his earlier conviction and sentencing and ordered a retrial, the judgment did not apply to him.
Justice Ekwo ruled that it was only the former Commissioner of Finance in Abia Government House, Jones Udeogu, that could be re-tried as only his name was mentioned in the Supreme Court judgment.
The judge rejected the argument of the prosecution that having benefited from the judgment of the Supreme Court, Kalu and his firm could not claim the order for retrial would not apply to them.
Kalu was hitherto charged alongside his from, Slok and Udeogu, and while the duo were convicted and sentenced for 12 years, the company was wound up.
Udeogu, however, appealed the judgment and the Supreme Court set aside their trial and conviction in a judgment on May 8, 2020, on the grounds that the trial judge, having been elevated to the Court of Appeal, ought not to have continued to hear the case.
In the judgment given in an appeal, marked: SC/62C/2019 filed by Udeogu, the Supreme Court ordered a retrial in the case.
Following which the EFCC applied for a retrial and Kalu and his firm sued to challenge the application for a retrial and argued among others that a retrial would subject him to double jeopardy.
Kalu, who is the Chief Whip of the Senate representing Abia North Senatorial District argued that he had already been tried, convicted and imprisoned and the constitution provides that one could not be tried twice on the same charge.
Kalu’s counsel, Prof. Awa Kalu, SAN, while adopting his processes had informed the court that Kalu stood for trial for 12 years and got the judgment that convicted and jailed him for 10 years.
The senior lawyer cited Section 36 (9) of the 1999 Constitution which provides that no Nigerian shall be subjected to double jeopardy to support his arguments.
The lawyer insisted that the former governor, having served time in prison, would be made to suffer double jeopardy if the court ordered the EFCC to retry him.
In an interview with newsmen, Awa Kalu said that the judgment was a victory for the law.
For his part, the EFCC counsel, Mr Oluwaleke Atolagbe wondered why Kalu would benefit from the Supreme Court judgment while Udeogu would not benefit from it.
Atolagbe said that he would consult with his employer to know the next cause of action, he, however, added that an appeal was not off the table.
The decision of the EFCC to challenge the clear directives of the Federal High Court amounted to sheer waste of public fund. Already the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) an independent civil Rights advocacy group had issued a media statement telling EFCC to stop the persecution of the Igbo born Senator who is being lobbied by Northern youths to run for the office of President of Nigeria in the year 2023 since he is apparently the most senior Igbo politician in the National ruling party and the South East is expected to get favourable consideration in the Presidential primary election for the 2023 Presidential poll.
The threat by the Economic and Financial Crimes Commission (EFCC) to appeal the decision of the Federal High Court Abuja division which stops the Federal government from initiating a retrial of the former governor of Abia State and Senate Chief Whip Senator Orji Uzor Kalu over alleged financial infractions as then Abia State’s governor, has been described as meaningless shadow boxing and emotional pursuit of self help measures by the EFCC.
Speaking against the backdrops of the landmark decision of the Federal High Court in which the erstwhile governor of Abia State was freed of the planned retrial by the Economic and Financial Crimes Commission, the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) said the persistent and sustained tempo of media persecution by the EFCC against the Senator representing Abia North Senatorial Orji Uzor Kalu, has graphically exposed the hierarchy of the Economic and Financial Crimes Commission as a group of persons pursuing a war of Ethno-religious vendetta against one of the most prominent Igbo South East Politicians with the potency to be considered for the position of the candidate of the ruling All Progressives Congress in the 2023 Presidential election.
“It would seem that some reactionary elements from the Arewa Peoples Congress and the Northern Governors Forum may have penetrated the EFCC and have deployed the EFCC to weaken the possibility of the South East to present a formidable candidate for the office of the President of the Federal Republic of Nigeria in 2023.
HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) recalled that the Federal High Court sitting in Abuja, had on Wednesday, barred the Federal Government from retrying the former Governor of Abia State, Orji Uzor Kalu, based on the N7.1billion money laundering charge the Economic and Financial Crimes Commission, EFCC, earlier preferred against him.
HURIWA recalled that the court, in a judgement that was delivered by Justice Inyang Ekwo, held that the Supreme Court did not in the verdict it gave on May 8, 2020, order the retrial of either Kalu or his firm, Slok Nigeria Limited.
HURIWA said the presiding judge Justice Ekwo held that the Supreme Court only ordered the retrial of former Director of Finance in Abia State, Jones Udeogu, who was the Appellant before it. Consequently, he upheld a suit Kalu filed to challenge the legal propriety of his planned re-arraignment by the EFCC.
HURIWA recalled that Senator Kalu had in the Application he filed through his team of lawyers let by Chief Awa Kalu, SAN, argued that allowing the EFCC to try him afresh on the charge and same facts upon which he was earlier convicted and sentenced on December 5, 2019, would occasion him to suffer a “double jeopardy”.
HURIWA recalled that following their dissatisfaction with the ruling of an Abuja Federal High Court, which barred it from retrying the former Abia State Governor Orji Uzor Kalu, the Economic and Financial Crimes Commission, EFCC, Wednesday vowed to appeal against the ruling.
“EFCC believes the judge erred in this ruling as Section 36(9) of the 1999 constitution is applicable only where the previous judgment was by a court of competent jurisdiction.
” In this case, the apex court had in the said judgment described the process that led to the conviction of Kalu as a nullity because the Judge came from the Court of Appeal to decide the matter.
“The Commission further avers that the court erred in its ruling that the Supreme Court did not order the retrial of Kalu; that it amounts to cherry-picking for Kalu to profit from the decision of the Apex court nullifying the conviction of his co defendant, Ude Udeagu but is not prepared to face the burden of retrial,” EFCC’s Spokesman, Wilson Uwujaren, said on Wednesday night.
HURIWA however condemned the EFCC for seeking to have the same matter that was decided by the competent court of law and reached a determination that saw the former Governor going to the Kuje Prisons spending over 6 Months just before the highest Court in Nigeria the Supreme Court of Nigeria ruled that the judicial process that led to the sentencing of Orji Uzor Kalu to Kuje Prison was irregular and therefore ordered the immediate freedom for the erstwhile governor.
HURIWA said the attempt to initiate the same case twice after the accused person had spent time in prison for same charges amounted to double jeopardy which is irregular and unconstitutional. The Rights group has therefore asked the EFCC to perish the thought of frittering humongous sum of public fund to chase politically motivated persecution of Orji Uzor Kalu at the Court of Appeal.
*EMMANUEL ONWUBIKO is head of the HUMAN RIGHTS WRITERS ASSOCIATION OF NIGERIA (HURIWA) and one time National commissioner of the NATIONAL HUMAN RIGHTS COMMISSION OF NIGERIA.