Fallacy of ‘double jeopardy’
While the dust of his arraignment, before a Chief Magistrate Court at Tinubu, Lagos on January 16, 2017, by the Inspector General of Police for alleged unlawful invasion of the First Guarantee Pension Limited (FGPL) was yet to settle, the Economic and Financial Crimes Commission (EFCC) on February 7, 2017 charged Nze Chidi Duru, a former House of Representatives Member before Honourable Justice Peter Affen of the Maitama High Court, Abuja with criminal allegations. Before the present charge in the Abuja High Court, Justice Atinuke Ipaye of the Lagos State High Court, Ikeja had, on November 11, 2016 struck out criminal charges against Duru in Suit ID/2039c/2015 following an application by the EFCC to withdraw the charges.
According to Hon. Justice Ipaye: “Pursuant to the application to withdraw criminal charges, it is hereby ordered as follows: that the criminal charges in suit ID/2039c/2015 as disclosed in the information dated December 5, 2015, is hereby struck out without prejudice.” It was against this backdrop that Chidi Duru and his family raised alarm in the media that it amounts to double jeopardy and persecution for the EFCC to charge him to court again. They said the same EFCC had vide a letter signed by the Acting Chairman in 2016, withdrawn the charge against him. According to Duru’s family, “The intention is to charge him on a matter, which the EFCC Acting Chairman, Ibrahim Magu in a signed letter, withdrew on 7th September 2016. This case was however withdrawn from a Lagos Court and now they intend to arraign him in an Abuja Court this is a clear case of double jeopardy.”
The legal notion of double jeopardy is based on the principle, in most legal jurisdictions, that nobody should be punished twice for the same offence. The question of its application to Nigerian Criminal proceedings is not in doubt. For instance, the Supreme Court affirmed this in the case of Rabiu v. The State [1980] LPELR-SC. 49/1980, per Idigbe JSC. The relevant provision on double jeopardy in our 1999 Constitution is Section 36 (9), which reads: “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.”
It is clear from the provision of this section that for a person to raise the defence of double jeopardy, he/she must have been tried by a competent court for a criminal offence and either convicted or acquitted. It follows, therefore, that for double jeopardy to exist, there must be a conviction or an acquittal by a court or tribunal and the offence for which the person is subsequently arraigned must have the same ingredients as the previous one. Even at that, the defence of double jeopardy is not automatic because a superior court can actually order the retrial of a person again despite previous conviction or acquittal.
From the preceding analysis, follows the question: is there really a clear case of double jeopardy in Chidi Duru’s matter as alleged by him and his family? The answer is a definite “No”. The withdrawal of a charge by the EFFC does not, and cannot by any stretch of the imagination amount to an acquittal by a court of law. So the attempt to invoke a plea ofres judicata (a rule that a final judgment on the merits by a competent court has concluded and decided the matter) based on the strength of a letter signed by the EFCC Chairman, withdrawing a charge against Duru is not only standing the law on its head, but an affront to our Constitution and decided case of the judiciary, especially the Supreme Court.
Now, what is the import of the phrase ‘without prejudice’ used by the court during the withdrawal order? The answer is that when an order of court, striking out the proceedings in a criminal prosecution, contains the phrase “without prejudice”, it means that the prosecution can bring you before the court again on the same or amended charges.
Also our Supreme Court in the case of Ozo Nwankwo Alor & Anor v Christopher Ngene & Ors [s.c 21/2002] decided in 2007, held that if the order, decision or judgment of a court finally and completely determines the rights of the parties in the case, it is final. But if it does not, it is interlocutory only.
EFCC had alleged that Duru jumped bail and his prosecution had dragged without progress as he was evading and delaying his trial since his arraignment at the Lagos High Court. This led to the arrest and detention of Chidi Duru’s surety and sister, Mrs. Christy Ekweonu, a Director at the Federal Ministry of Justice, sometime in May, 2016 by the EFCC. Beyond legalities, from my perception, I would come to the conclusion that withdrawal of the charge in Lagos High Court was a prosecutorial tactic employed by the EFCC to lure Duru out of hiding and eventually get him to answer to the criminal allegations against him.
The EFCC had said the withdrawal of the charge was done in the interest of justice. Interest of justice in this context encompasses all necessary legal strategy that will facilitate Duru’s trial and see that justice is done. Late legal sage, Hon. Justice C. Oputa, may his soul rest in peace, in one of his famous remarks said that, “Justice is not a one-way traffic. It is not justice for the appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic, justice for the appellant accused of a heinous crime of murder; justice for the victim, the murdered man, the deceased, ‘whose blood is crying to heaven for vengeance’ and finally, justice for the society at large...”
Stakeholders in the pension industry, civil society organisations, and Nigerians want to see that justice is done in this matter. And Duru should be more interested in facing trial and finally clearing his name of the criminal allegations against him, rather than employing technicalities and media trial of law enforcement agencies and antigraft agencies to circumvent his trial.
Banigo-Duke wrote in from Port Harcourt, Rivers State.