A foremost EFCC lawyer, Mr. Rotimi Jacobs, SAN has reacted to the decision of the Supreme Court that nullified the trial which led to the conviction of the former Governor of Abia State, Mr. Orji Uzor-Kalu.

Rotimi Jacobs Air his opinion during an interview with Channels Television which was watched by TheNigeriaLawyer (TNL).

Narrating the background facts of the situation, he said the proceedings revolved around the administration of Orji Kalu between 1999 and 2007. It was alleged that government funds were taken to the banks and drafts were obtained in the name of a bank and those drafts were brought to Lagos and were cleared by the bank in Lagos and paid into the account of SLOK Nig. Ltd, the former Governor’s company, for his own benefit and the fund runs into billions, 7.2 billion.

The learned silk said EFCC filed a simple charge against the governor and there were controversies then as to why EFCC could file a charge when there was no prima facie case considering also a restraining order by Abia State High Court which had to prohibit the arrest and prosecution of the governor.

“High Court, Justice Bello, who is now a member of the ICPC was the one who sat over the case and he ruled that the case was properly filed. They appealed since 2007. We were at the Court of Appeal, the judgement was also against him and up to Supreme Court in 2016 that was when the Supreme Court decided the case and said the charges were proper and that he should face his charge, and then his company, there were sufficient evidence to show that he took that money. That he should come and defend himself while the prosecution proves its case” The learned silk said

Rotimi Jacobs said luckily for them the Administration of Criminal Justice Act was enacted in 2015 which abolished all sorts of objections so they were able to call 19 witnesses within 3 years.

“It has never been like that before. So within that 3 years, we were able to conclude our case, and then after the prosecution closed its case, he raised a No Case Submission stating the same argument before that there was no prima facie case”. He said Justice Idris ordered for filing of written addresses over the No Case submission but before he could deliver judgement, he was elevated to the Court of Appeal. Orji Kalu for himself and on behalf of his company, wrote to the president of the Court of Appeal for the judge to come and conclude the case Pursuant to Section 396(7) of the Administration of Criminal Justice Act (ACJA). The President granted the fiat for Justice Idris to come and continue with the case. All parties were in agreement for the continuation of the matter. To their shock, His Lordship dismissed their no-case submission and that was when the tactics started.

He said after the dismissal of their No Case Submission, Mike Ozekhome (SAN) came and raised objection on behalf of Kalu challenging the appearance of the judge even when the judge appeared on the application of Kalu.

According to Jacobs, the purpose of section 396 is similar to that of section 129 which is to the effect that once a judge Commences trial, Chief Judge cannot transfer the case. That it is to ensure speedy trial.

Explaining the decision of the Supreme Court, Rotimi Jacobs said:

“The Supreme Court based its decision on section 253 of the constitution that says that the Federal High Court shall be properly constituted if it consists of at least one judge of that court. They are saying that as at the date Justice Idris gave his decision, he is no longer a judge of the Federal High Court”

He said that was the position in some previous cases which the Appellant relied on.

“What they are saying is that once you are no longer a judge of that court, the court is not properly constituted, that is the backbone of that decision. And I think that decision is a right interpretation of that section and the way out is to amend that section to allow that it shall be properly constituted by a judge of that High Court or judge as permitted or former Judge that has been permitted to sit as a judge of that Federal High Court by an Act of the National Assembly or Act of the state in equivalent section regarding State High Court” Rotimi Jacobs said.

In response to whether it would have been different if the fiat had come from the Chief Justice of Nigeria, Jacob said it would have been worse because Court of Appeal Justice is not directly under the CJN neither can the fiat be issued by the Chief Judge of the Federal High Court. He said the National Assembly should be persuaded to amend the constitution to reflect the position. He said the section is not new, it is everywhere in almost all Common Wealth Countries but is just that they put theirs in a proper perspective. “in Ghana here it is permitted. The judges who are elevated are always allowed to finish his part start matters.”

He stressed the need for a constitutional amendment and add that as an alternative, elevated judges should be given time, like six months, to finish their part start matters before taking their oath as justices of the Court of Appeal

As to the preparation for retrial, he said it depends on the outcome of the pending appeals filed by the other Defendants. He said:

“The evidence against the accused persons is overwhelming. None of them is contesting the facts. I have been saying it and I will continue to say it: there is nothing you do to the truth that will survive. You know most of our witnesses are coming from the banks and most of these banks are no longer existing: like Standard Bank, like Inland Bank. They are no longer there. But the documents are there and the banks that inherit them we will always call them to come and produce the documents which they inherited”

He admitted that issues would come up in this area in view of the fact that the banks are not the makers of the documents. He said the defendants will make issues out of it but when the time comes they will know what to do about it.

On the implication of the Supreme Court decision on some pending and concluded cases handled by the same Justice Idris including the cases of former Governor Rasheed Ladoja and former Senior Special Assistant to President Goodluck Jonathan Dudafa, he said the decision of the Supreme Court is a double edged sword. Is for them and is against them.

On virtual court Hearings, then learned Senior Advocate of Nigeria said the ACJA has made ample provisions for it particularly in witness protection sections. He even cited an example of a witness who gave evidence against a former governor from London. On the difficulty of tendering documents through witnesses, he said frontloading will help the issue.

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