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Orji Kalu and the revocation of bail: Matters arising

By Richard Akinnola

Hon. Justice Mohammed Idris of the Federal High (and a Court of Appeal Justice, having been elevated to the higher Bench), was obviously in a hurry to dispense with the case and move on.

•Orji Uzor Kalu in German Hospital

Section 396(7) of the Administration of Criminal Justice Act of 2015 has given judges the leeway to conclude criminal matters even after the elevation of such a judge.

Section 396(7):”Notwithstanding the provision   of any other law to the contrary, a judge of the High Court who has been elevated to the Court of Appeal shall have dispensation to continue to sit as a High court Judge, only for the purpose of concluding any part-heard criminal matter, pending before him at the time of his elevation and shall conclude within   reasonable time, provided   that this section shall not prevent him from assuming duty as a Justice of the Court of Appeal”.

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This provision obviously was meant to correct certain anomalies in criminal trials, whereby hitherto, when such elevation of judges occurred, it usually resulted in the cases being heard de novo (afresh from the beginning). This has caused lots of delays in criminal trials.

On Monday, Justice Idris had revoked the bail of a former Governor of Abia State, Chief Orji Kalu, who is standing trial of alleged N7.6 billion fraud.

Perhaps, it is necessary at this stage to give a brief background to the debacle.

This case has dragged on for 11 years. That was before the enactment of the ACJA   in 2015, which to all intents and purposes, was meant to fast track criminal justice system and eliminate interlocutory appeals that hitherto were impediments to quick administration of Justice.

Kalu is facing an amended 39- count charge, along with his former Director   of   Finance and Accounts, Jones Udeogu and a company, Slok Nigeria Limited.

On May 11, 2018, the EFCC prosecutor, Rotimi Jacobs, SAN had closed the case of the prosecution after the conclusion of evidences by prosecution witnesses.

Counsel to the defendants, Awa Kalu, SAN, on May   28, 2018 filed a no-case submission which was subsequently argued and dismissed by the judge, asking Kalu to open his defence.

However, before the defendants could open their defence, their counsel, Goddy Uche, SAN had informed the court   that the lead defence counsel, Awa Kalu, SAN, had written the court to the effect that the first defendant, Orji Kalu had a medical appointment in Germany where he was to undergo a major surgery.

He subsequently pleaded with the court to adjourn the matter to September 10, by which time the defendant would be in a position to open his defence.

Justice Idris then adjourned the case to September 10 to enable the defendants open their defence. But that was not to be, as Kalu wasn’t back from his medical trip.

The matter was further put off till November 5   when Kalu was still recuperating at a German hospital. His   counsel, Awa Kalu, SAN informed the court that his client was still recuperating in Germany, adding that the EFCC prosecutor, Rotimi Jacobs, SAN was aware of the development.

However, Jacobs expressed surprise that Kalu was absent, wondering whether Kalu obtained the court’s permission to travel.

He accused Kalu for allegedly jumping bail.

While the judge agreed with Awa Kalu that the case was adjourned sine die on September 27 but that hearing notice was served on Kalu on November 2, at a time Kalu was in a German hospital. The judge then adjourned the matter for the last time, giving Kalu a one week grace to be in court.

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This was not to be as Kalu was still in the German hospital. But the judge wasn’t impressed, leading him to revoke Kalu’s bail and adjourned the matter to January 23, 2019 to enable Kalu enough time to recuperate and be in court.

That is the crux of the matter. The judge seemed to have contradicted himself. Having adjourned the matter to January 23 to enable the first defendant enough time to recuperate, with profound respect to the honourable judge, he ought not to have revoked the bail. Rather, he should have ruled that in view of the medical challenges of the first defendant, that he was adjourning the matter again and that if Kalu refused to show up on January 23, he would revoke the bail. That should have been a much fairer decision than revoking his bail, since there is enough evidence that the first defendant- Kalu   was in a German hospital.

This is also particularly against the background of the fact that his counsel formally informed the EFCC of his planned medical trip.

This case has dragged on for 11 years and it is instructive to note that throughout this period, the first defendant had never absented himself from trial. To me, the Hon. Judge ought to have adverted his mind to this.

Perhaps, if the defendant had had a history of absenting himself in court in the course of the trial, that might   have worked negatively against him but that was not the case.

As a matter of fact, after the Supreme court dismissed his interlocutory appeal on March 19, 2016, Kalu had stated that it was a welcome decision that his trial was about to start, stating that it provided him an opportunity to prove his innocence.

My concern now is that as the trial is winding down, the judge may have inadvertently put a spanner in the works with this order of bail revocation because l foresee a possible application that the judge should recuse himself.

That may invariably prolong a matter that should have ended in the first quarter of next year.

It needs be noted that only the living can stand trial. A former Governor of Kogi state, Abubakar Audu who died three years ago was facing a 186 count charge of alleged corruption. The 186 count charge died along with him and the society is the loser.

A little tarry by the judge till January 23 would have been more appropriate.  But revoking his bail, while at the same time urging him to take his time to get fit till January 23, to me, sounds contradictory.  It’s like taking with left hand, what you have with right hand. It’s unhelpful in the circumstance. If a defendant had made himself available for trial for11 years without jumping bail, the circumstances of the revocation of the bail seem high-handed.

As the maxim goes, justice must not only be done but must be seen to have been done.

While the judge may be eager to   be done with the case and go and take his seat at the Court of Appeal, I’m afraid the judge may have unwittingly played into the hands of the defendants where a possible application of recusing himself may be in the offing. Meanwhile, we keep our fingers crossed and watch as developments unfold.

*Akinnola is the Editor-in-chief of CORRUPTION CASES DIGEST


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