Orji Uzor Kalu V. Federal Republic Of Nigeria & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

The two appeals were heard on 15th March, 2012, as consolidated appeals. They emanate from one proceeding in the matter No FHC/AB/CR/56/2007 at the Federal High Court, Abuja. The Appellant, ORJI UZOR KALU, in the appeal No CA/A/224C/2009, and the appellants, UDEH JONES UDEOGU and SLOK NIGERIA LIMITED, in appeal No CA/A/229C/2009 are jointly being tried on several heads of counts for money laundering offences at the Federal High Court, Abuja. In the course of the proceedings the Appellants, as accused persons, had brought applications seeking the quashing of the amended charges preferred against them.

The Federal High Court presided by Justice A. Bello, in the ruling delivered on 8th May, 2009, dismissed the Appellants’ applications seeking to quash the charges preferred against them. The appeals are against the Ruling of 8th May, 2009 dismissing the applications to quash the amended charges of money laundering offences preferred against the Appellants.

The charges were preferred against the Appellants by the Economic and Financial Crimes Commission (EFCC) which had received written complaint by some concerned citizens of Abia State. The citizens made allegations that Mr. Orji Uzor Kalu, as Governor of Abia State, had corruptly enriched himself using his company, Slok Nigeria Limited. It was alleged that Mr. Orji Uzor Kalu, using his personal aides, had stolen various sums of money, running into Billions of Naira, from the funds of Abia State Government held in bank accounts, had them converted into drafts and paid into the account of Slok Nigeria Limited.

The EFCC investigated the allegations of the Abia State Citizen and was apparently convinced that there was some substance in the allegations. The EFCC could not then, because Mr. Orji Uzor Kalu, being a sitting Governor of Abia State by 2005, and enjoying immunity to criminal proceedings by dint of section 308 of the Constitution of the Federal Republic of Nigeria, 1999, proceed against him. They had filed charges against some of the personal aides of the then Governor Orji Uzor Kalu and Slok Nigeria Limited. The EFCC had apparently issued statements to the effect that as soon as Mr. Orji Uzor Kalu ceased to be Governor, and thereby losing his immunity, they would proceed against him. He claimed to be aggrieved thereby. Just immediately at the end of his tenure as Governor of Abia State he, through his lawyers, took out proceedings against the EFCC and others at Abia State High Court for the enforcement of his fundamental rights to the dignity of his person (guaranteed by section 34 of the Constitution), to his personal liberty (guaranteed by section 35 of the Constitution), and freedom of movement, guaranteed by section 41 of the same Constitution, 1999. The High Court of Abia State sitting at Umuahia, heard the ex parte application for leave to enforce Mr. Orji Uzor Kalu’s rights against the EFCC; granted the leave and ordered ex parte:

That the leave so granted shall operate as a stay of all actions or matters relating to or connected with the complaint hereof until the determination of the motion on Notice.

The suit was intended to intercept EFCC’s missiles aimed at him. Mr. Orji Uzor Kalu (Appellant in appeal No CA/A/224C/2009) is of the opinion that the subsistence of this order of the Abia State High Court in suit No HU/177/2007 estops and restrains the EFCC, in whatever manner, whether or not in accordance with any procedure permitted by law or constitution, or lawfully and/or unlawfully, from any steps to arrest and prosecute him for the money laundering offences or any other offences.

That is the basis or ground, inter alia, for seeking an order to quash the charges against him. He argues, through his counsel, that the warrant for his arrest issued by the Federal High Court, at the instance of EFCC, during the subsistence of the ex parte order of the Abia State High Court in suit No HU/177/2007, his arrest and arraignment at the Federal High Court in the extant proceedings at the Federal High Court are all a nullity. It is on that footing, amongst others, that he prayed the Federal High Court to quash the charges in the case No FHC/ABJ/CR /56/2007. Hon Justice A. Bello of the Federal High Court, Abuja, not impressed by the argument, dismissed, on 8th May, 2009, the application to quash the charges against ex Governor Orji Uzor Kalu.

Mr. Ude Jones Udeogu and Slok Nigeria Limited, appellants in the appeal No CA/A/229C/2009, sought the quashing of the charges preferred against them on 4 grounds, namely:

1. The Accused/Applicants were arraigned under non existing laws. They are no laws known as Money Laundering (Prohibition) Act, 2003 and Money Laundering (Prohibition) Act, 2004 in Nigeria under which the 2nd and 3rd Accused persons were charged. Both Acts are not existing laws in Nigeria.
2. The proof of evidence before this Honourable Court does not and cannot sustain or support the charges brought against the 2nd and 3rd Accused/Applicants under the Money Laundering (Prohibition) Act 2003 or 2004 or at all. The proof of evidence does not disclose any prima facie case against the Accused persons and the charges are fundamentally defective.
3. The charges against the Accused/Applicants bother on revenue of Abia State Government and by virtue of section 251 of the Constitution of the Federal Republic of Nigeria, 1999, the Federal High Court lacks the jurisdiction to entertain the matter.
4. That the Complainant/Prosecutor in this matter lacks the competence to institute and prosecute this matter, the subject matter being revenue of Abia State Government and thereby deprive this Honourable Court the jurisdiction to entertain abuse of process.

The court below heard the applications or Mr. Orji Uzor Kalu and M/s Ude Jones Udeogu and Slok Nigeria Limited and in a single Ruling of 8th May, 2009 it dismissed the applications. The Ruling is at pages 1040 to 1090 of the Record of Appeal. The Appellants, not satisfied, appealed the Ruling. Mr. Orji Uzor Kalu filed a separate appeal. His appeal is No CA/A/224C/2009. The appeal of M/S Ude Jones Udeogu and Slok Nigeria Ltd is the appeal no CA/A/229C/2009. The appeals were consolidated and were heard on 15th March, 2012. Each appeal retains its separate identity and I shall consider each appeal in that manner.

APPEAL NO. CA/A/224C/2009

The Notice of Appeal was filed on 20th May, 2009. The Appellant, with leave of this Court, filed additional grounds of appeal on 12th October, 2010. The Appellant filed his Brief of Argument on 20th April, 2010. The brief was deemed properly filed and served on 11th October, 2010. On 8th November, 2010 the 1st Respondent, through Rotimi Jacobs Esq. of counsel, filed his Brief of Argument. The 2nd and 3rd Respondents, M/S Ude Jones Udeogu and Slok Nigeria Ltd, elected not to file any brief of argument in this appeal. The Appellant’s Reply to the Brief of 1st Respondent was filed on 15th September, 2011 but it was deemed filed and served on 22nd February, 2012.

On 15th March, 2012 Mr. Awa Kalu, SAN of counsel to the Appellant identified and adopted the Appellant’s Brief filed on 20th April, 2010 but deemed filed on 11th October, 2010, and the Appellant’s Reply to 1st Respondent’s Brief. The two briefs were settled by Livy Uzoukwu, SAN. They were adopted as Appellant’s argument in the appeal by Awa Kalu, SAN who urged that the appeal be allowed. The Brief of 1stt Respondent, settled by Rotimi Jacobs, was adopted by Mr. Adebisi Adeniyi of counsel as the 1st Respondent’s argument in opposition to the appeal. Mr. Akuma, SAN for 2nd and 3rd Respondents conceded the appeal and further announced that the 2nd and 3rd Respondents had filed no brief.

Both the Appellant and 1st Respondent formulated two issues from the several grounds of appeal. The Appellant’s two issues read as follows:-