The EFCC is prosecuting Kalu together with his former Commissioner for Finance, Ude Udeogo, and a Company, Slok Nigeria Limited on the alleged fraud.
They had each pleaded not guilty to the charges, and were granted bails.
At the resumed hearing of the matter on Wednesday, Chief Mike Ozekhome (SAN) appeared for the first defendant, Mr L. Agwu, held the brief of Chief Solo Akuma (SAN) for the second defendant while Chief K. C Nwofo (SAN) appeared for the third defendant.
Ozekhome (SAN) in the proceedings informed the court of his client’s application challenging the jurisdiction of the court to continue with the trial of the accused.
After several arguments by Ozekomeh (SAN) and prosecuting counsel Mr. Rotimi Jacob (SAN), on whether the motion should be heard, the court finally granted permission for defence to move his motion.
Moving his application, Ozekhome told the court that his motion was brought pursuant to the 1999 Constitution as amended.
He argued that his four-ground application challenges the constitutionality of Justice Idris to continue to try the accused, having being elevated to the court of appeal.
“This Judex, having being elevated as a Court of Appeal judge, cannot continue to sit as a Federal High Court Judge to try this charge; it is illegal unlawful and unconstitutional,” he said
Referring the court to the provisions of sections 238, 239, 240 , 252 and 253 of the Constitution, Ozekhome argued that the provisions makes it clear, that the court of Appeal which is “peopled” by justices such my lord, cannot sit as a court of first instance but only on Appeal.
Besides, he submitted that where the court is indisposed to granting the application to recuse itself, then, the court should be gracious enough to afford the accused a time frame for medical travel overseas.
He noted that on a scale of 57 times, the accused has been present not less than 56 times to stand his trial; he therefore, urged the court to grant his application.
In opposing the application, Mr. Jacobs (SAN), said the application was a ploy to stall the case which he argued had lingered for so long.
He urged the court to refuse the application and call upon the accused to begin his defence adding that a fiat had already been issued for the judge to continue with the trial which is already at its concluding stage.
Moreso, prosecution argued that the said fiat was sought for and obtained by the defence, adding that it would be unfair for defence to do a turn around at this point. He urged the court to proceed with trial.
Delivering a bench ruling Justice Idris held that he would resist the temptation of delving into issues which were already filed on Appeal.
He noted that although the issues raised by defence counsel were recondite, he would however apply caution in his ruling.
“I have listened to the learned senior counsel and again the issues raised are live issues already before the learned law lords of the Court of Appeal.
“Being already before the appellate court, it cannot be a live issue in this court; I shall exercise caution so as not to make comments on issues to be determined by the appellate court.
“Trial shall proceed,” he said
After the court’s ruling, defence counsel then sought for an adjournment till tomorrow, to enable the defence begin his trial.
“My lord, I crave the indulgence of the Court for an adjournment till tomorrow, to enable the lead defence counsel to attend and handle the trial.
“We have absolutely nothing to be afraid of, but as a senior counsel I must make certain observations where necessary,” he said
Justice Idris consequently, adjourned the case until tomorrow, September, 27 for the defence to open its case.
