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Before Their Lordships
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
SULEIMAN GALADIMA Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
Between
ORJI UZOR KALU- Appellant
AND
FEDERAL REPUBLIC OF NIGERIA
UDEH JONES UDEOGU
SLOK NIGERIA LIMITED –Respondents
…………………….A…………………….
SULEIMAN GALADIMA J.S.C.: (Delivering the Leading Judgment): This is an appeal by the appellant against the interlocutory decision of the Court of Appeal (the Court below) Abuja Division delivered on the 27th April 2012, wherein the Court affirmed the decision of the trial Federal High Court Abuja (the trial Court) and dismissed the Appellant’s appeal in which he sought to set aside the decision of the said Federal High Court delivered on 8th May, 2009.
The background facts are simple and straight forward: Sometime in 2005, the Economic and Financial Crimes Commission (EFCC) received several petitions from some well-placed concerned indigenes of Abia State of Nigeria against the Appellant and some other persons. The said petitions bordered on abuse of office, corruption and money laundering. Upon receipt of these petitions, a team of investigation was constituted by the EFCC to discreetly investigate the petitions. Investigation revealed that the Appellant who was the Governor of Abia State between May, 1999 and May 2007, incorporated some limited liability Companies, one of which is SLOK NIGERIA (the 3rd respondent herein), of which he was a shareholder.
It was the 1st respondent’s case that the Abia State Government funds running into some billions of Naira in various Banks were allegedly fraudulently withdrawn aid illegally converted into drafts in favour of the personal use of the Appellant in his SLOK GROUP of Companies. Other allegations leveled against the Appellant were that he awarded the State Governments contracts to such companies as ZEROCK CONSTRUCTION Ltd, HITEC CONSTRUCTION LTD, HAPEL NIGERIA LTD and UDEX NIGERIA LTD in which he had interest. It was alleged that the contractors to whom contracts were awarded by the Appellant as the Governor, also obtained several bank drafts which were lodged into the 3rd Respondent’s account as gratifications. In view of these allegations the 1st respondent filed a criminal charge against the 2nd and 3rd respondents herein and some other officials of the Abia State Government at the Federal High Court Lagos. The name of the appellant featured in the said charge but because he was still under official immunity, as such could not be prosecuted. The said charge was later withdrawn. Subsequently, when the appellant as well as the 2nd and 3rd respondents were arraigned at the Federal High Court Abuja, he approached the Federal High Court, Lagos and the Federal High Court, Umuahia, seeking a sort of reprieve for an order to restrain, the EFCC from arresting, detaining or prosecuting him. It would appear when he failed in his bid to secure the said restraining order in these Courts, the appellant went to the Abia State High Court, Umuahia where he filed an application for enforcement of his fundamental rights. On the 31st May, 2007 , the Court made an exparte order restraining the EFCC from arresting and/order detaining him, in the following term:
“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 above order was relied upon by the appellant before the trial Federal High Court and the Court of Appeal to argue that he can no longer be prosecuted pending the hearing and determination of his motion on Notice. He also prayed the Court below to quash the charge against him on the ground that no prima facie case was disclosed in the entire proof of evidence.
The 1st respondent herein reacted by opposing the application to quash the charge before the Federal trial High Court. It filed a counter-affidavit with two Exhibits. In his considered ruling the learned trial judge dismissed the Appellant’s motion to quash the charges preferred against him on 8th May, 2009. The Appellant’s appeal to the Court below was further dismissed.
Dissatisfied with the judgment of the Court below the appellant further appealed to this Court vide his Notice of Appeal dated 4th day of May, 2012 containing 5 grounds. From these grounds the appellant formulated 3 issues for determination, namely:“(i) Whether the Court below was right when it held in sum that a charge preferred against an accused person contrary to the terms of an order made by a Court of competent jurisdiction is not thereby violated (Grounds 1 and 2).
(ii) Whether the Court below lawfully and dutifully considered the Appellant’s appeal without regard to all the materials placed before it, particularly Affidavit evidence (Grounds 3 & 4).(iii) Whether the Court below was right in holding that the proof of evidence discloses a prima facie case (Ground 5)
“Two issues distilled by the 1st respondent, for determination are as follows:-
“l. Whether the Court of Appeal was not right in affirming the decision of the trial High Court that the learned trial Judge was not bound by the exparte order of the High Court of Abia State as to vitiate the charges (See grounds 1,2,3, and 5)
2.Whether the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial judge to the effect that a prima facie case was disclosed against the ground 4).”
It is not worthy that both the Appellant and 1st respondent raised similar issues for determination in the Court below. See page 1352 of the records. I must note however that these issues are substantially the same as the 1st respondent’s two issues before this Court. Appellant’s second issue is unnecessary embellishment of 1st Respondent’s issue
It was the 1st respondent’s case that the Abia State Government funds running into some billions of Naira in various Banks were allegedly fraudulently withdrawn aid illegally converted into drafts in favour of the personal use of the Appellant in his SLOK GROUP of Companies. Other allegations leveled against the Appellant were that he awarded the State Governments contracts to such companies as ZEROCK CONSTRUCTION Ltd, HITEC CONSTRUCTION LTD, HAPEL NIGERIA LTD and UDEX NIGERIA LTD in which he had interest. It was alleged that the contractors to whom contracts were awarded by the Appellant as the Governor, also obtained several bank drafts which were lodged into the 3rd Respondent’s account as gratifications. In view of these allegations the 1st respondent filed a criminal charge against the 2nd and 3rd respondents herein and some other officials of the Abia State Government at the Federal High Court Lagos. The name of the appellant featured in the said charge but because he was still under official immunity, as such could not be prosecuted. The said charge was later withdrawn. Subsequently, when the appellant as well as the 2nd and 3rd respondents were arraigned at the Federal High Court Abuja, he approached the Federal High Court, Lagos and the Federal High Court, Umuahia, seeking a sort of reprieve for an order to restrain, the EFCC from arresting, detaining or prosecuting him. It would appear when he failed in his bid to secure the said restraining order in these Courts, the appellant went to the Abia State High Court, Umuahia where he filed an application for enforcement of his fundamental rights. On the 31st May, 2007 , the Court made an exparte order restraining the EFCC from arresting and/order detaining him, in the following term:
“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 above order was relied upon by the appellant before the trial Federal High Court and the Court of Appeal to argue that he can no longer be prosecuted pending the hearing and determination of his motion on Notice. He also prayed the Court below to quash the charge against him on the ground that no prima facie case was disclosed in the entire proof of evidence.
The 1st respondent herein reacted by opposing the application to quash the charge before the Federal trial High Court. It filed a counter-affidavit with two Exhibits. In his considered ruling the learned trial judge dismissed the Appellant’s motion to quash the charges preferred against him on 8th May, 2009. The Appellant’s appeal to the Court below was further dismissed.
Dissatisfied with the judgment of the Court below the appellant further appealed to this Court vide his Notice of Appeal dated 4th day of May, 2012 containing 5 grounds. From these grounds the appellant formulated 3 issues for determination, namely:“(i) Whether the Court below was right when it held in sum that a charge preferred against an accused person contrary to the terms of an order made by a Court of competent jurisdiction is not thereby violated (Grounds 1 and 2).
(ii) Whether the Court below lawfully and dutifully considered the Appellant’s appeal without regard to all the materials placed before it, particularly Affidavit evidence (Grounds 3 & 4).(iii) Whether the Court below was right in holding that the proof of evidence discloses a prima facie case (Ground 5)
“Two issues distilled by the 1st respondent, for determination are as follows:-
“l. Whether the Court of Appeal was not right in affirming the decision of the trial High Court that the learned trial Judge was not bound by the exparte order of the High Court of Abia State as to vitiate the charges (See grounds 1,2,3, and 5)
2.Whether the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial judge to the effect that a prima facie case was disclosed against the ground 4).”
It is not worthy that both the Appellant and 1st respondent raised similar issues for determination in the Court below. See page 1352 of the records. I must note however that these issues are substantially the same as the 1st respondent’s two issues before this Court. Appellant’s second issue is unnecessary embellishment of 1st Respondent’s issue
…………………….B…………………….
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