But, Kalu and Udeogu Had A Joint Trial- By Mike Ozekhome.

For the record, Kalu and Udeogu were both convicted and sentenced by the FHC, Lagos, to 12 and 10 years’ imprisonment, respectively, on 5th December, 2019. The trial was a joint one, under one charge; same Judge; same court; same time; same facts; same witnesses; and the same evidence. Kalu and Udeogu were thus, tied together by the same umbilical cord. They were inseparable Hamlet and the Prince of Denmark; 6 and half a dozen.

They were in the same boat and either swam or sank together, in the raging current of the criminal trial. It must be stated that, Kalu and Udeogu were jointly convicted and sentenced together under counts 24, 25, 27, 28, 30, 31, 32, 34, 37, 38 and 39 (eleven whole counts out of 28). Kalu, on the other hand, was sentenced on 18 separate counts.

It is also pertinent to state that, during the final proceedings of October 22, 2019, the prosecution had argued that the second Defendant (Udeogu) had already admitted to the offence, both in his extra-judicial statement and under cross-examination. He argued that, “the admission is binding on all Defendants”. The Judge agreed, in convicting them. So, what has changed? Nothing, between when the Judge convicted Kalu and Udeogu, and 8th May, 2020 when the SC delivered its judgement. Can Orji Uzor Kalu take Benefit of the Supreme Court Judgement Yes, he can.The position in law shows that, in cases where an accused is tried jointly with another accused and their case is clearly inseparable and interwoven, the conviction of one can never stand where his co-accused is discharged and acquitted. The Supreme Court emphasised this in ALO v STATE (2015) LPELR-24404 (SC), when it held that:

”…where an accused is jointly tried with another or other accused persons and their case is clearly interwoven and inseparable from one another, the conviction of one cannot stand where the other accused person was discharged and acquitted”. See also AFRIBANK NIG PLC v HOMELUX CONSTRUCTION COMPANY LTD & ANOR (2008) LPELR-9020 (CA); UMANA & ANOR v STATE (2018) LPELR-44403 (CA); SHEKETE v NAF (2007) 14 NWLR (Pt. 1053) 159 at 202; YAU v STATE (2012) LPELR-20798 (CA); and UKPE v STATE (2012) LPELR-19715 (CA).

It is clear and beyond argument, that the case and trial of Orji Kalu and Udeogu, being an inseparable joint one, the decision of the SC which set aside the trial of Udeogu, applies with equal force and in similar measure to Kalu. For the avoidance of doubt, and for those concerned that the “fight against corruption”, has in their perception been “defeated”, the SC DID NOT SET Udeogu free, nor discharge him (the benefit of which Kalu is equally entitled to). It merely set aside the trial of Udeogu and remitted the case back to the Chief Judge of the FHC for reassignment to another Judge of the same FHC, for “trial de novo”. In other words, it is not yet Uhuru for them.

So, let us be patient. Let the wheels of justice grind to their sure destination, even if slowly. True, justice delayed is justice denied. But, more serious is “justice hurried, is justice crushed”.

The imperious Section 396(7) ACJA, which now been roundly invalidated and struck down by the SC, has brazenly but, unfortunately, challenged eye-ball-to-eye-ball, the supremacy of the Constitution as the grundnorm and font et origo of our democratic dispensation, contrary to Section 1(3) of the same Constitution. Even the ACJA itself was promulgated, not only to “promote the efficient management of criminal justice institutions, speedy dispensation of justice, protection of the society from crime”, but, equally, for the “protection of the rights and interest of the suspect, the Defendant and the victim”. So,‘fiat justicia ruat caelum’ (let justice be done though the heavens fall).

But, the heavens have never fallen. They will not fall now.The NCS is hereby, humbly advised to release BOTH Ude Udeogu and Orji Uzor Kalu immediately, if they have not already done so. The NCS should await their fresh arraignment, and trial. As was once stated by Cassandra Clare,“the law is hard, but it is the law”.

Dr Mike Ozekhome OFR, SAN, Human Rights Lawyer and Activist

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