The Rule of Double Jeopardy and Its Applicability to Orji Kalu

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By Emem Ekpenyong 

Last year, the Supreme Court nullified the conviction of Orji Uzor- Kalu. The premise for nullifying the conviction was that the trial judge was elevated to the court of Appeal at the time of the judgement. By virtue of constitutional provisions he could not operate in dual capacity (as a high court judge and justice of the court of Appeal simultaneously).

It was reported that the Supreme Court ordered the chief judge of the federal high court to reassign the case for trial. This morning I read something disturbing from Human Rights Writers Association of Nigeria (HURIWA). The body advised EFCC not to fritter public funds on appealing the judgement of the Federal High Court, Abuja Division, delivered last month. The latest decision holds that since Kalu had already been convicted, he cannot be re-tried. The body (HURIWA)) claimed that the judge held that the Supreme Court only ordered the re-trial of former director of finance in Abia State, Jones Udeogu.

I have not read the Supreme Court’s judgement in any law report. I will be glad if someone can provide citation of any law report that captured the case. It was decided last year. I am also not armed with a certified true copy of the judgement of the FHC, Abuja barring EFCC from retrying Kalu. Accordingly, I will restrict myself to verifiable facts within my knowledge.

Double jeopardy is a procedural defence that prevents an accused person from being tried again on similar charges and on the same facts following a valid acquittal or conviction. See PML (Nig) Ltd v FRN (2017) LPELR- 43480 (SC). For more insight on the principle of double jeopardy, the cases of Igbinedion v FRN, Bashir v FRN, Romrig Nigeria Ltd v FRN etc are instructive.

Legal issue identified

Considering that Kalu’s conviction was invalidated by the Supreme Court, can Kalu be protected under the double jeopardy rule? Let’s bear in mind that the Supreme Court never acquitted Kalu of the charges.

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In Nigeria, the principle of double jeopardy gains statutory oxygen from the provision of section 36(9) and (10) of the 1999 constitution.

The principle of double jeopardy reflects the importance of finality in the criminal justice system and protects against inconsistent results. It plays a role in upholding public confidence in the justice system and respect for judicial proceedings, with additional practical benefit of conserving judicial resources.

The doctrine aims to prevent the State from using its resources and power to victimize. It stops the government from deploying its resources to make repeated attempts at convicting an individual for an alleged offence, thereby compelling him to live in continued sense of anxiety and insecurity. It bars the State from subjecting an individual to embarrassment, expenses and fear of being found guilty, even when he is innocent.

The principle of double jeopardy is not a Nigerian concept. It enjoys international recognition. For example it is captured in the Article 14 (7) of the International Covenant on Civil and Political Rights, Article 4 of the seventh additional protocol of the European Convention for the Protection of Human Right and Fundamental Freedom, Article 8(4) of the American Convention on Human Rights, Article 19 of the revised Arab Charter on Human Rights, Article 50 of the Fundamental Rights of the European Union etc.

The doctrine of double jeopardy bars judges from re-sentencing accused persons who have already served their punishments.

Another issue identified

Did Kalu complete his sentence when his verdict was nullified?

The rule of double jeopardy applies only in criminal cases and does not prevent an accused person from being sued in a civil matter over their involvement in the same act. It is imperative to emphasize this so that we will not stretch the doctrine far beyond the legally allowed limits.

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Double jeopardy prohibits different prosecutions for the same offence. However, it does not protect an accused person from legion prosecution for different offences.

As earlier stated, the doctrine finds statutory expression under Section 36(9) of the 1999 Constitution. It provides 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.’

The doctrine does not operate without a caveat. SAVE UPON THE ORDER OF A SUPERIOR COURT. This means that an accused person may be tried again even after he had secured an order of acquittal or his previous conviction nullified like in Kalu’s case, if there is an order of a superior court to that effect. The question is, did the Supreme Court order the re-trial of Kalu?

Section 36(10) of the Constitution provides that:

‘No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.’ Has the federal government pardoned Kalu? So far, there is no such news.

Kalu’s case is an interesting one. I have always wondered if that caveat in section 36(9) was a cosmetic provision. I have always pondered on the conditions to be satisfied before a superior court of record can order a retrial of an accused person. I had once proposed in an academic article that the provision should be amended to reflect conditions to be satisfied before a superior court can activate its powers under section 36(9). Kalu’s case may serve as the needed catalyst to expand the jurisprudence on that area. I am excited about the twist in Kalu’s case.

HURIWA should not introduce politics into a purely legal matter.

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*Considering that Kalu’s conviction was nullified, on grounds that the judge who gave the judgement lacked the competence to delivered same, can it be argued that Kalu was convicted by a court of competent jurisdiction?

In Nta v NPA (2013) LPELR- 21024 (CA), the court established conditions that must be fulfilled before a court is robed with jurisdiction. One of the conditions that must be met for a court to be competent to entertain a matter is, being properly constituted, and no member of the bench must be disqualified for any reason.

The Supreme Court disqualified a court of Appeal judge from deciding a matter in the FHC. Flowing from the above, it is doubtful that the federal high court, presided over by the elevated judicial officer, had the jurisdictional competence to deliver Kalu’s verdict when it did.

When a court is robbed of jurisdiction, the proceedings no matter how well conducted will amount to a nullity. See Nweke v INEC reported in 2016. If a judgement is plagued with nullity, it is as good as a judgement never given, as it is void ab initio. See Okerie v Okerie reported in 2016. Such judgement has no legal consequence. See Zenith Bank v Archiving reported in 2013. It has no legal force. See Bude v State reported in 2013.

** Assuming without affirming that the Supreme Court nullified the conviction and ordered a re-trial of persons convicted by Justice Idris, should Kalu benefit from the nullification but contest the re-trial?

*** Since the Supreme Court did not acquit Kalu of the charges against him, can’t it be argued that Kalu was merely discharged from custody to re-stand trial? He was neither convicted nor acquitted by the Supreme Court. Can he be protected under the principle of double jeopardy?

Today being Nigeria’s Anniversary, I come bearing gifts. This post is for members of my professional constituency. A little brainstorming and cross-fertilization of ideas wouldn’t hurt.

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