When does double jeopardy avail a suspect in Nigeria’s criminal jurisprudence?

The Economic and Financial Crimes Commission (EFCC) recently planned to re-arraign former governor of Abia State, Senator Orji Uzor Kalu, before Justice I. E. Ekwo of the Federal High Court, Abuja. At the court, two things happened. The same anti-graft agency raised objection to the arraignment and prayed the court to adjourn the matter sine die (indefinitely). It said it was acting on the ground that it wrote to the Chief Judge of the Federal High Court, asking that the trial be transferred to the Lagos division of the court.

The second thing that happened was that the accused person filed an application, seeking to be allowed to pursue his case against the double trial, known in legal parlance as “double jeopardy”. While the EFCC could not get its prayers sanctioned by the court, Uzor Kalu succeeded in his. Justice Ekwo, in a brief ruling, rejected the application of the prosecution to adjourn sine die. Instead, he adjourned proceedings till June 7, 2021, for the prosecution to report on the outcome of its application to the chief judge.

Director (Legal and Prosecution) of the EFCC, Chile Okoroma, appearing for the prosecution, had informed the court that the anti-graft agency had written to the chief judge of the Federal High Court, Justice John Tsoho, requesting that the case be transferred to Lagos Division of the Federal High Court, which he argued has jurisdiction to entertain the matter.

Okoroma said: “On January 20, 2021, we wrote a letter to the chief judge of the Federal High Court requesting for the transfer of this case to the Lagos Division of this court. My lord, we have also written another letter dated February 2, 2021, which I have served on all parties involved in this matter. We will be asking that this matter be adjourned sine-die, pending the decision of the chief judge. One thing is certain, the case cannot be heard in Abuja.”

On his part, Kalu asked the court to stop the EFCC from retrying him on the same N7.1 billion money laundering charge. He said having been tried once by EFCC, convicted and sentenced in the same charge, it would amount to double jeopardy for him to go through the same trial, a second time.

In an ex-parte motion moved through his counsel, Chief Awa Kalu (SAN), the former governor pleaded with the court to rescue him from suffering double jeopardy. He further asked that if his application is granted, it should operate as a stay of proceedings until the determination of the application or until the judge otherwise orders.

The motion reads in part, “an order prohibiting the Federal Republic of Nigeria through the EFCC, its officers, servants, others, agents, privies and any other person or bodies deriving authority from the Federal Republic of Nigeria, from retrying him on charge No. FHC/ABJ/CR/56/2007 between FRN vs Orji Kalu & 2 others or any other charge based on the same facts de novo, there being no extant judgment and ruling of a competent court in Nigeria mandating same”.

Kalu argued that he was exempted from the retrial order of the Supreme Court, as it was particular to his co-defendant. He insisted that it would amount to double jeopardy if he were subjected to a fresh trial on the same charge. Ruling on the application, Justice Ekwo granted leave to the defendant to pursue his application seeking to stop his retrial. He ordered a stay of proceedings until the determination of the application, thereby suspending his trial temporarily.

Kalu, alongside his firm, Slok Nigeria Limited, and former Director of Finance under his administration in Abia State, Jones Udeogu, were tried for fraud to the tune of about an N7.1billion and sentenced to Prison. The ex-governor and senator representing Abia North at the National Assembly was sentenced to 12 years, while Udeogu was sentenced to 10 years. Kalu was already serving his 12-year jail term at the Kuje Prison when the Supreme Court nullified his conviction by Justice Idris Mohammed of a Federal High Court, Lagos, on technical ground, following an appeal filed by Kalu’s co-defendant Udeogu.

Udeogu had argued that the trial judge, having been elevated to the court of appeal was no longer qualified to try him, even though the judge got the approval of the President of the Court of Appeal as provided by the Administration of Criminal Justice Act (ACJA). Agreeing with him, the apex court on May 8, 2020, held that the trial judge was actually no longer a judge of the Federal High Court at the time he delivered the judgment, having been elevated to the Appeal Court.

The Supreme Court quashed his conviction and ordered that another judge of the Federal High Court retry the applicant. Because Uzor Kalu was a co-convict on the same charge, he became a beneficiary of the decision, even though he didn’t file the application. On the strength of the Supreme Court judgment, he was released from Prison together with the appellant in the matter.

To comply with the retrial order made by the Supreme Court, the EFCC decided to commence the arraignment of the suspects for a fresh trial, prompting the former governor to seek to halt his trial.

This move by the senator has opened up the debate about the concept of double jeopardy in common law jurisprudence. Ventilating the issue, Professor of law, Edoba Omoregie argued his previous trial ended in a discharge and not dismissal, and so, did not qualify for double jeopardy.

He said: “I don’t see why he cannot be re-tried. His previous trial ended in a discharge, not dismissal. The Supreme Court discharged him of the charges because the judge who tried him “climbed down” from the Court of Appeal (which the judge was subsequently appointed, while the trial was still on) to hear and conclude the trial. The Administration of Criminal Justice Act permits his action.

“However, the Supreme Court was of the view that the section of the ACJA violated the Constitution. Since time doesn’t run in criminal justice and because the previous trial ended in a discharge, Senator Orji can well be re-tried on the same charges. It will not amount to double jeopardy.”

Human rights activist, Festus Ogun believes it is not double jeopardy. “There was an order for a retrial. The implication is that the earlier trial and subsequent judgment amount to a nullity and the new trial will be conducted as though there hadn’t been any trial whatsoever,” he said and suggested that the application is one of the ploys of delay tactics deployed by senior lawyers to frustrate cases.

Lagos based lawyer and a member of the Nigerian Bar Association (NBA) Lagos Human Rights Committee, Abdulwasiu Esuola, explained that the principle of autre fois acquit autre fois convict (double jeopardy) provides that a person who has previously been tried for an offence and had either been acquitted or convicted shall not be re-tried for such an offence.

Citing 1999 Constitution of Nigeria, which provides in section 36 subsection 9 that, “No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court”, Esuola pointed out that a superior court must make a retrial order.

His words: “This provision of section 36(9) simply means that an order of a court (superior to the trial court) ordering retrial is a fundamental exception to the principle of double jeopardy. Uzor Kalu’s case is not a perfect scenario for the application of the exception contained in section 36 (9) as the Supreme Court had in May 2020 held that he was wrongfully convicted and had ordered a re-trial.”

As such, the lawyer argued that the EFCC is well within its rights to seek to re-prosecute him for the same offence for which he was previously tried and convicted as he said re-prosecution accords with extant laws and the order of the Supreme Court. According to him, there has to be a re-prosecution for there to be a retrial.

Also speaking on the issue, Bar Chris Okeke noted that the former Governor is facing the possibility of a second trial at the Federal High Court, following the retrial order made by the Supreme Court. According to Okeke, the question that arises is: can the doctrine of double jeopardy avail him as to halt the possibility of the said trial?

“My answer is no. The reason is that Section 181(2) of the Criminal Procedure Act makes an exception to the application of this doctrine. The section provides that nothing in subsection (1) shall prejudice the operation of any law giving power to any court, on an appeal, to set aside a verdict or finding of any other court and order a re-trial,” he argued. He stressed that Uzor Kalu’s trial is coming under a retrial ordered by the Supreme Court, adding that the doctrine of double jeopardy does not apply.

Abuja based lawyer, Abubakar Sani argued that the senator would have had a genuine reason to seek to halt his trial for a second time if the Supreme Court were silent on the retrial order. According to him, it would be unconstitutional to retry him on the same charge if the order of the Supreme Court was silent on his re-trial.

Sani explained: “It all depends on two things: section 36(9) of the Constitution and the order of the Federal High Court, which ordered his release from prison custody, following the judgment of the Supreme Court.
Starting with the latter, if that order was silent on the question of his re-trial (sequel to the quashing of the conviction of his co-accused by the Supreme Court), it follows that the moves purportedly being made to re-arraign him are unconstitutional, having regard to the express language of Section 36(9) of the Constitution, which categorically states that such pre-trial can only proceed with the backing of “an order of a superior court.”

Consequently, Sani suggested that the Senator’s lawyers are apparently standing on a strong wicket in their application to halt the re-trial. “But, as previously stated, this depends on the precise terms of the order of the Federal High court,” he added.