By Onyewuchi Ojinnaka
A Federal High Court sitting in Lagos, Nigeria on Wednesday ruled that it is giving September 27 as the final and last adjournment to former governor of Abia State Dr Orji Uzor Kalu to open his defence in a case in which he and two others are standing trial on charges of alleged N7.1billion fraud.
The trial judge Justice Mohammed Idris adjourned the case after hearing the application by the defence team challenging the court’s jurisdiction to continue with the criminal charge.
The Economic and Financial Crimes Commission (EFCC) is prosecuting Orji Kalu together with his former Commissioner for Finance, Ude Udeogo, and a Company, Slok Nigeria Ltd.
EFCC had on October 31, 2016, preferred a 34 count charge, bordering on N3.2 billion fraud against the accused.
But on July 17, 2018 the EFCC re-arraigned the defendants in a second further amended charge of 39 counts, alleging N7.1 billion money laundering.
They had each pleaded not guilty to the charges, and were granted bails.
At the resumed hearing of the matter on Wednesday September 26, Chief Mike Ozekhome (SAN), appeared for the first accused, Chief K. C Nwofo (SAN), appeared for the second defendant while Mr L. Agwu held the brief of Chief Solo Akuma (SAN) for the third defendant.
Making his submission, Ozekhome had informed the court of the defence’s application challenging the jurisdiction of the court to continue with the trial of the defendant.
After several arguments by both defence and prosecuting counsel on whether the motion should be heard, the court finally granted permission for defence to move his motion.
Moving his application, Ozekhome told the court that his motion was brought pursuant to the 1999 Constitution as amended.
He argued that his four-ground application challenges the constitutionality of Justice Idris to continue to try the accused, having being elevated to the court of appeal.
“This Judex, having been elevated as a Court of Appeal judge, cannot continue to sit as a Federal High Court Judge to try this charge; it is illegal, unlawful and unconstitutional,” he submitted
Referring the court to the provisions of Sections 238, 239, 240 , 252 and 253 of the Constitution, Ozekhome argued that the provisions make it clear that the Court of Appeal which is “peopled” by justices such as my lord, cannot sit as a court of first instance but only on Appeal.
Besides, he submitted that where the court is indisposed to granting the application to recuse itself, then the court shoukd be gracious enough to afford the accused a time frame for medical travel overseas.
Ozekhome noted that on a scale of 57 times, the accused has been present not less than 56 times to stand his trial; he therefore, urged the court to grant his application.
While responding, the prosecutor, Mr Rotimi Jacobs (SAN), opposed the application challenging the court’s jurisdiction on the grounds that it was a ploy to stall the case which he argued had lingered for so long.
He urged the court to refuse the application and call upon the accused to begin his defence, adding that a fiat had already been issued for the judge to continue with the trial which is already at its concluding stage.
Moreover, the prosecution argued that the said fiat was sought for and obtained by the defence, stressing that it would be unfair for defence to do a turn around at this point. He urged the court to proceed with trial.
Delivering a bench ruling Justice Idris held that he would resist the temptation of delving into issues which were already filed on Appeal.He noted that although the issues raised by defence counsel were recondite, he would however apply caution in his ruling.
“I have listened to the learned senior counsel and again the issues raised are live issues already before the learned law lords of the Court of Appeal.
“Being already before the appellate court, it cannot be a live issue in this court; I shall exercise caution so as not to make comments on issues to be determined by the appellate court.
“Trial shall proceed,” he ruled.
After the court’s ruling, defence counsel then sought for an adjournment till next day to enable the defence begin his trial.
“My lord, I crave the indulgence of the Court for an adjournment till tomorrow, to enable the lead defence counsel to attend and handle the trial.
“We have absolutely nothing to be afraid of, but as a senior counsel I must make certain observations where neccesary,” he said
Justice Idris consequently, adjourned the case until September 27 for the defence to open its case but however said in his ruling that the law allows only five adjourments in a case. He noted that the instant case has already suffered four adjourments, adding therefore that today’s adjourment will be the fifth, final and last adjournment on the matter.
In the charge, the accused were alleged to have committed the offence between August 2001 and October 2005.
Orji Kalu was alleged to have utilised his company to retain in the account of a First Inland bank, the sum of N200 million.
The sum is alleged to have formed part of funds illegally derived from the coffers of the Abia State Government.
In one of the counts, his company (Slok Nig Ltd) and one Emeka Abone who is said to be at large, were also alleged to have retained in the company’s account the sum of N200 million, on behalf of the first accused.
In counts one to 10, the accused were alleged to have retained about N2.5 billion in different accounts, which funds were said to belong to the Abia State Government.
Cumulatively, in all the counts, the accused were alleged to have diverted over N7.1billion from the Abia State government’s treasury, during Kalu’s tenure as governor.
The offence is said to have contravened the provisions of Sections 15(6), 16, and 21 of the Money Laundering (Prohibition) Act, 2005.
It also contravenes the provisions of the Money Laundering Act of 1995 as amended by the amendment Act No.9 of 2002 and Section 477 of the Criminal Code Act, Laws of the Federation.
