By Onyewuchi Ojinnaka
Former Governor of Abia State and a Senator of Federal Republic of Nigeria, Dr Orji Uzor Kalu, convicted and sentenced to 12 years imprisonment on December 5 by Justice Mohammed Idris over diversion of N7.2 billion Abia State funds, on Tuesday prayed a Federal High Court Lagos, to grant him bail from the Ikoyi Correctional Service pending determination of an Appeal against his sentence.
One of his grounds of appeal is premised on his health conditions which, according to him, the Prison Authority has no adequate facilities to take care of him.
The Economic and Financial Crimes Commission (EFCC) charged and prosecuted Uzor Kalu together with his former Commissioner for Finance, Jones Ude Udeogo, and a Company, Slok Nigeria Ltd, on an amended 39 counts charge of fraud.
The trial which started in 2007, experienced series of applications but eventually ended in October 2019 when parties adopted written addresses, and on December 5, the convicts were sentenced to jail
In his judgement, Justice Idris had found Kalu and his Company, Slok Nigeria Ltd, guilty of all 39 counts of the charge, while the second defendant Udeogo, was convicted on 34 counts of the charge.
Kalu was sentenced to a term of 12 years imprisonment for the offence, Udeogo was sentenced to 10 years imprisonment, while the court had ordered that Slok Nigeria Ltd be wound up and its assets forfeited to Federal Government.
On Tuesday December 17, the application for bail was before Justice Mohammed Liman. Mr RotimI Jacobs (SAN) announced appearance for prosecution, while Messrs Lateef Fagbemi (SAN) and Awa Kalu (SAN) appeared for Kalu.
Meanwhile Messrs L.U Agu and David Idang held briefs on behalf of second and third defence counsel.
Fagbemi then informed the court of a bail application filed on behalf of the first convict Orji Kalu, seeking to be release on bail pending Appeal.
He submitted that his application was premised on 23 grounds and supported by an affidavit of 38 paragraphs, adding that after receiving the counter affidavit of prosecution, he had filed a 34 paragraph further affidavit with one exhibit attached.
Fagbemi also drew the court’s attention to a Notice of Appeal against the conviction of Kalu, and relying on the provisions of Sections 241 of the Constitution, he urged the court to grant the applicant bail pending Appeal.
“If there is a right of appeal, then there is a corresponding right of bail pending appeal, ” he said.
Citing the case of Okitipupa as well as Sections 6 of the Constitution, Fagbemi argued that being a court of record, it has the powers to entertain such applications since post-judgement jurisdiction are anchored on Section 6 of the Constitution.
In arguing the application for bail, he mainly relied on the Ill health of the first convict, as well as the need for him to return to the floor of the National Assembly to carry out his service to the nation.
He, therefore, urged the court to grant the application as prayed.
Opposing the application, Jacobs submitted that he filed counter affidavit in opposition to the bail application.
Jacobs said, “Although bail is generally a right of an accused as guranteed by the constitution, it is not a right available to a convict because the presumption of innocence has crystallised into guilt and conviction.”
Jacobs argued that such application for bail pending appeal is “sparingly” granted by the court for instance, in situations where the terms of imprisonment would have lasped before the appeal is determined.
He argued that this was not the situation with the case of Kalu.
On the health condition of Kalu, Jacobs argued that there was no recent medical report to show his state of health as the medical report attached was over a year ago.
Besides, he argued that the request by Kalu to be released on bail so as to seek ‘traditional medicine” was not a tenable ground as visitors were allowed into the prison.
“He says he needs his traditional herbalist to treat him but he has not said that his herbalist came to the prison and was not allowed to see him.
“In one breath, applicant is saying that he wants to be released on health grounds while in another breath he is saying that as Senator, he needs to be released on bail so as to carryout his official functions,” he said
Citing the case of FRN vs Joshua Dariye, prosecution argued that the Nigerian criminal jurisprudence is robust enough to handle Appeal and dispense with same within reasonable time.
Besides, he argued that the medical facilities at the correctional centre is capable of handling the medical condition of the convict.
He, therefore, urged the court to refuse the bail application of Kalu.
Justice Mohammed Liman has adjourned the case until December 23 for ruling.
It would be recalled that EFCC had on October 31, 2016, preferred a 34 count charge bordering on N3.2 billion fraud against the convicts.
The charges were subsequently amended on July 16, 2018 and the charge increased to 39 counts with the sum increased to N7.2billion.
The convicts had each pleaded not guilty to the charges, and were granted bails. In May 2018, Justice Idris who sat as trial judge in the charge against Kalu, was elevated to the Court of Appeal.
He, had however, conducted trial by a fiat from the Appeal Court President Justice Buchachiwa authorising him to continue and conclude the case
Following accelerated hearing, Idris concluded trial of the convicts in October 2019 and adjourned the case for adoption of addresses.
On October 22, both the prosecution and defence counsel respectively adopted their written submissions before the court.
Justice Idris consequently reserved judgement until December 2 but judgement could not be delivered as the judge was away for an election appeal tribunal.it was adjourned to December 5, and on that date the court delivered judgement, convicting and sentencing the convicts accordingly.
