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Bankole's Trial :Full text of  Belgore's ruling refusing to disqualify Keyamo
Newsdiaryonline Wed Nov 2,2011

 

 

IN THE HIGH COURT OF JUSTICE FEDERAL CAPITAL TERRITORY

IN THE ABUJA JUDICIAL DIVISION HOLDEN AT APO  ABUJA F.C.T.

REGISTRAR: BARDE BISSALAH

COURT NO. 28

                                                                                                                                                                                                                                                                                                                                SUIT NO: FCT/HC/CR/100/2011

                                                                                                                M/8863/9405/9478/2011             

                                                                                                                DATE: 21ST OCTOBER, 2011.

 

BETWEEN:

FEDERAL REPUBLIC OF NIGERIA.......................................RESPONDENT

 

AND

RT. HON. OLADIMEJI BANKOLE, CFR

....................APPLICANTS

RT. HON. USMAN BAYERO NAFADA       

 

 

RULING

 

(DELIVERED BY HON. JUSTICE S.B BELGORE)

 

         On the 25th day of July, 2011, three motions were consolidated and heard by this Court. Two of those motions were at the instance of the 1st accused person while the last one was at the instance of the 2nd accused person. The motions are:-

 

Motion No. M/8863/11

Motion No. M/9405/11

Motion No. M/9478/11

 

       Motion No. M/8863/11 prayed for the following reliefs:

An order quashing and dismissing the 17-count charge against the accused/applicant in respect of which the applicant entered a plea of not guilty on Monday the 13th of June 2011 BECAUSE:-

 

No Court has jurisdiction to try the Speaker of the House of Representatives or subject him to jurisdiction in all matters which related to, connected with, and arose from any exercise of his official functions.

The applicant RT HON Dimeji Bankole cannot, in the exercise of his duties in matters relating to his office as speaker of the House of Representatives, be prosecuted for the acts, decisions and resolutions of the House of Representatives, taken at its executive or committee sessions because the principle of vicarious liability is unknown to Criminal Law in Nigeria.

There is no scintilla of evidence contained or shown in the Proof of Evidence placed before this Honourable Court capable of warranting the inference or conclusion that the Applicant was at any time entrusted with the House of Representatives Account No. 0029007000018 with the United Bank for Africa Plc as alleged in Counts 2,3,4,5 and 6 of the Charge or at all.

There is no scintilla of evidence contained or shown in the proof of Evidence placed before this Honourable Court capable of warranting the inference or of leading to the conclusion that the accused/applicant breached the provisions of section 311 of the Penal Code Act Cap 532, Laws of the Federation of Nigeria (Abuja) 1990 in the manner alleged in counts 7,8,9,10 and 11 of the Charge or at all.

There is no scintilla of evidence contained or shown in the proof of evidence placed before this Honourable Court capable of warranting the inference or of leading to the conclusion that the accused/applicant committed a felony to wit: theft as alleged in counts 12, 13,14,15,16 and 17 of the charge.

The offences of criminal breach of trust and theft as alleged in Counts 2-17 of the charge (as contemplated and defined in the Penal Code cannot be committed by the applicant by “obtaining a loan to augment allowances and running costs of members of the House of Representatives in violation of the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009” or at all.

The offences of criminal breach of trust and theft as alleged in Counts 2-17 of the Charge (as contemplated or defined in the Penal Code) cannot be committed by the Applicant by indiscriminately increasing the allowances of members of the House of Representatives in violation of the approved remuneration package for political, public and judicial office holders by the Revenue Mobilisation, Financial Regulations of the Federal Government of Nigeria, 2009 in that the Revised Regulations stipulate a punishment for the breach of its provisions.

An Agreement to “………… approve the allowances and/or “running cost” of members of the House of Representatives in violation of the approved Remuneration Package for political, public and judicial office holders by the Revenue Mobilization, Allocation and Fiscal Commission and the extant Revised Financial Regulations of the Federal Government of Nigeria 2009” as alleged in Count 1 of the charge cannot be an offence within the purview of Section 97 (1) of the Penal Code Act UNLESS it be shown in addition that at the time of giving the alleged approval, the Applicant did not have the real or ostensible authority to give approval in his position as Speaker of the House of Representatives and/or that he gave the said approval for his own purpose.

The Applicant cannot be charged with the offence of ‘dishonesty’ using account No. 0039007000018 to obtain a loan as alleged in Counts 2-6 of the Charge and at the same time be charged with misappropriating the sum alleged in Counts 2-17 of the Charge by referring to the loan as “property of the Federal Government of Nigeria” having regard to the fact that an alleged illegal loan facility from a commercial bank, cannot at the same time be the property of the Federal Government of Nigeria, capable of being misappropriated or stolen.

The allegations of “dishonestly disbursing” the amounts in Counts 13-17 of the charge are unknown to any written law and thus unsustainable.

The offence of agreement to commit a felony alleged in Count 12 of the charge is unknown to any written law in that within the meaning and contemplation of S97(1) of the Penal Code Act, an agreement to “approve the allowances and/or “running costs” of members of the House of Representatives by a resolution of the House of Representatives at its Executive Session without the consent and approval of the Revenue Mobilization, Allocation and Fiscal Commission” cannot be an agreement to commit an infraction of any written law or at all.

The Accused Person/Applicant (RT Hon. Dimeji Bankole)was not by the constitution of the Federal Republic of Nigeria, 1999, National Assembly Service Commission Act or any other Legislation, a public officer or a management staff or a custodian or person in possession of the properties of the House of Representatives or the property of the Federal Republic of Nigeria, as alleged and cannot be liable under any law to account for the properties of the House of Representatives or the Federal Government of Nigeria.

The Applicant (RT Hon. Dimeji Bankole) as the speaker of the House of Representatives of the Federal Republic of Nigeria under the Constitution of the Federal Republic of Nigeria, 1999 has defined functions and duties which did not include possession or entrustment with the properties or with dominion over any property of the House of Representatives as alleged and can therefore not be charged with criminal breach of trust under Section 311 and punishable under Section 315 of the Penal Code.

The Accused/Applicant (RT Hon. Dimeji Bankole) in his capacity as speaker of the House of Representative and in exercise of his powers as chairman of the principal officers of the House of representatives at Plenary, Executive or Committee Session of the House of Representatives acted in official capacity and not personally, he cannot be personally liable for any criminal prosecution.

 

2.  An ORDER quashing the charge against the Accused/Applicant (RT Hon. Dimeji Bankole) in that the Economic and Financial Crimes Commission (EFCC) has neither statutory nor constitutional power to issue authority to a private prosecutor to prosecute offences created by or under the Penal Code Act in any Court of Law without the FIAT of the Attorney-General of the Federation first being sought and obtained and usage of the powers as a vindictive weapon against the Applicant.

 

3.  AN ORDER condemning Economic and Financial Crimes Commission (EFCC) for abuse of Court Process, malicious and reckless use of prosecutorial powers of the Attorney-General of the Federation when it had no power or authority to appropriate the constitutional powers of the Attorney-General. The Commission knew the position of the Law but used it as a vindictive weapon to destroy the applicant’s political career.

 

4.  AN ORDER directing the Chairman of EFCC to publicly apologise to the Accused/Applicant for public humiliation, denial of personal liberty, unlawful detention and discomfort to his person and family BECAUSE

   

The Accused/Applicant has been condemned, vilified, demoralized and branded a villain in the public domain as the charges against him were leaked by the prosecution to the public before arraignment and after arraignment; the prosecuting counsel granted the television interviews where he condemned the Accused/Applicant.

The Accused/Applicant suffered deliberate harassment, intimidation, indignity, humiliation and prosecution when the bail granted him by the Federal High Court on 13th June 2011 was rendered ineffective by the adoption of serial prosecution.

The Economic and Financial Crimes Commission acted maliciously, recklessly and with impunity in the manner it treated the Accused/Applicant (RT. Hon. Dimeji Bankole) before and during the arraignments.

 

         It is to be noted that I deliberately set-out the reliefs in this Motion as couched by Mr. Awomolo SAN. This is because this style of legal drafting is very interesting to me. What I mean is that the Orders being prayed for included in extension the arguments in support of those prayers. However, I find this style most helpful in writing this Ruling. I shall come back to this shortly.

 

MOTION NO. M/9405/11 prayed similarly for the same relief, to wit:

“AN ORDER quashing the 17 Count Charge preferred against the Applicant. ALTERNATIVELY

AN ORDER striking out this criminal charge which was preferred by a Private Prosecutor to wit: Festus Keyamo Esq.

 

GROUNDS

The Criminal Charge and the proof of evidence do not disclose a prima facie case against the Applicant.

The offences as laid in the Criminal Charge contravene Section 36(12) of the 1999 Constitution.

The Private Prosecutor could only have validly preferred the criminal Charge on behalf of the state upon a duly issued authorization of the Attorney-General of the Federation.

There was no Attorney-General of the Federation in office at the time the criminal charge was preferred.

The Court has no jurisdiction to entertain the criminal charge preferred by a private prosecutor without due authorization of the Attorney-General of the Federation.

The Criminal Charge preferred by the private prosecutor without due authorization of the Attorney-General of the Federation is, prim facie, in contempt of court.”

 

        Again, this motion as filed by Mr. Tayo Oyetibo, SAN for the 2nd Accused/Applicant followed the same pattern of Motion No. M/8863/11. The Grounds for the relief being sought is the whole argument in support thereof. I will soon show in this Ruling how it has lessen my burden of writing same.

 

       Lastly, Motion No. M/9478/11, dated the 18th of July, 2011 prayed for an entirely different Order. It prayed as follows:

 

An ORDER disqualifying Mr. Festus Keyamo, a private Legal Practitioner from further prosecuting this case as Private Prosecutor.

…………………………………………………………………………………………………………………………………………………………………………………………

 

TAKE FURTHER NOTICE THAT THE GROUNDS OF THE APPLICATION ARE:

Mr. Festus Keyamo, as a private Legal Practitioner had engaged the applicant in battles of allegation of corruption as the Speaker of the House of Representatives which failed and was dismissed by the House Ethics Committee.

That the Prosecution of this case by Mr. Festus Keyamo is a continuation of prosecution, to destroy the applicant, an attack he had begun since October 2008.

The prosecution of the allegation in this Court by Festus Keyamo can neither be objective nor inspire confidence or impartiality and independence as prosecutor.

The prosecution by Festus Keyamo is perceived as a continuation of hostility, antagonism and personal vendetta, using the prosecutorial power of the state.

The prosecution of criminal allegation in matters relating to, connected with and which arose from the management/control and leadership of the House of Representatives under the Applicant by Mr. Festus Keyamo is a breach of the right to fair hearing of applicant by Section 36 of the Constitution.

 

        Once again, the grounds set out above in this motion by Chief Awomolo SAN laid open the arguments in support of the prayer they are asking for in this motion. It is very advantageous for me in writing this Ruling. I will explain in a matter of minutes.

 

        Now in this Ruling, I will lump the issues and arguments in Motion Nos. M/8863/11 and M/9405/11 together since they both prayed for the same Order. But the last motion asking me to disqualify Mr. Festus Keyamo shall be treated separately. I will start in the reverse order.

 

A. Disqualification of the Prosecutor (Motion No. M/9478/11)

 

         In support of this application is a 13-paragraph affidavit. There is also a further affidavit of 22 paragraphs and a further and better affidavit of 8-paragraphs. Also attached is a written address and some foreign authorities were supplied to the court later. I must not forget to say that the further affidavit of the applicant also have four Exhibits attached. Interestingly, they were marked as Keyamo 2 to 4. Exhibit Keyamo1 is a CTC of House Committee on Ethics and Privileges Report on the publication in the Newswatch Magazine of September 22, 2008 and other correspondence emanating from the chambers of Festus Keyamo.

 

         Exhibit keyamo 2 is an on-line Publication at www.naralam.com which detailed an interview granted by Mr. Festus Keyamo alleging some wrong doings against the 1st accused as speaker of the House of Representatives.

 

       Exhibit Keyamo 3 is another on-line publication by point blank News, a daily internet publication wherein Mr. Keyamo called upon the President to investigate the 1st accused.

 

       Exhibit Keyamo 4 is another publication at www.nigerianbestforum.com of 4th March, 2009 wherein the House of Representatives asked the Nigerian Police Force and other security agencies to investigate Mr. Keyamo for alleging a scam in the purchase of 380 Peugeot 407 cars worth N2.3 Billion in January 2008.

 

      There is only one attachment to the main supporting affidavit in this application. It is marked as Exhibit Bankole 1. I find this interesting as well. This exhibit is the Report of the House Committee on Ethics and Privileges on the publication in the Newswatch magazine of September 22, 2008 captioned “Reps Gun for Bankole over N2.4Billion Car Scam”.

 

       Lastly, the further and better affidavit in support of this application has one Exhibit attached also and it is in the same vein marked as Keyamo 5. This is a copy of an interview granted by Mr. Keyamo and published in The News Magazine of 30th May, 2011.

 

       On the other hand, the prosecution filed 3-paragraphs counter-affidavit. They also filed a further and better affidavit in reply and it is dated 25-7-11. A reply address was filed and some foreign authorities were supplied also.

 

        Chief Adegboyega S. Awomolo SAN appearing with four other legal SANs and some other legal practitioners moved the application on 25th of July 2011. His submission orally in court is not different from the grounds he stated in the motion papers. And that is why I said earlier that it is most helpful. I need not re-capture all of them in this ruling at this juncture. I have already set them out. However, in summary, the learned Counsel’s arguments is that by virtue of S17 (2) (c), S36 and S174 of the 1999 Constitution, Mr. Keyamo is expected to act in public interest, interest of justice, preservation of interest and integrity of law. He then referred to The News Magazine of 30th May, 2011 and submitted that Mr. Keyamo cannot be an independent and a unbiased prosecutor. The learned Senior Advocate of Nigeria read out extensively from the magazine and concluded that it will not be in the interest of impartiality of criminal justice to allow Mr. Keyamo to prosecute this case. According to Chief Awomolo SAN, the office of a prosecutor is not a domestic issue but an international office with international Code of Conduct. He referred to a print-out of code of conduct for prosecutors detailing Guidelines for prosecutors and paragraphs 4,5,6 and 9 and said Mr. Keyamo has expressed an opinion on the allegation against the accused/applicant which disqualifies him from prosecuting this case. The learned SAN argued that the prosecuting Counsel has a personal interest to satisfy personal goal.                       According to Chief Awomolo, to Mr. Keyamo, the guilt of the 1st accused/applicant is proved and it is a crusade. It is an animosity that has been consistent since 2008 to 2011. He adopted his written address as his full argument on this issue and cited the unreported case of FRN Vs Chief Kenny Martins and 1 or, suit No. FHC/ABJ/CR/61/09. This case was decided by his lordship, A. Bello .J. in the Federal High Court. It is clear that being a court of coordinated jurisdiction, this court can only be persuaded by it. However, there are other authorities of superior courts cited by Chief Awomolo SAN. They are Akilu Vs Fawehinmi (No. 2) (1982) 2 NWLR (pt 102) 122; Ojigbe Vs Ubani (1961) All NLR 290; and Akinfe Vs State (1988) 3 NWLR (pt 85) 729. As for Chief magistrate Ochimana’s decision cited by Chief Awomolo, I will not even comment on it. I leave it at that. Learned Counsel finally submitted that Mr. Festus keyamo be excused from prosecuting this case.

 

        Although, Mr. Tayo Oyetibo SAN filed no application on this issue, he spoke as amicus curie in order to assist the court reach a fair decision. Referring to S174 (10 (b) of the 1999 Constitution, the learned senior advocate of Nigeria submitted that the ultimate power to prosecute lies with the Attorney-General of the Federation because he has the power to take over any criminal prosecution. Applying this standard to this case, according to Mr. Oyetibo SAN, it means the procedure adopted by Mr. Keyamo in applying to prefer a charge is wrong. He argued that this type of procedure is unknown to CPC. The learned counsel then asked a very germane question. It is in fact, the all important question on this issue. The question is this; does a prosecutor need to be unbiased? The learned SAN submitted that if my answer is yes, then Mr. Keyamo needs to be disqualified having regard to all the publication tendered in court so far. Chief Oyetibo SAN remarked that Mr. Keyamo cannot be a prosecutor and at the same time, a crusader in the same case. He said since Mr. Keyamo has an interest in this case as a crusader, it means he cannot be a prosecutor.

 

        Finally, he inclined with his senior colleague and silk and urged the court to disqualify Mr. Keyamo.

 

         In his reply, Mr.  Festus Keyamo, the learned prosecuting counsel, referred to all the processes filed on this issue. He said, the Supreme Court had already settled this issue. As for the Chief magistrate Ochimana’s decision and that of Justice Bello of the Federal High Court, Mr. Keyamo submitted that the facts are not similar. He said in those cases, his chambers wrote the petition leading to the charges in the case. But that in this case, he did not write any petition leading to the N40Billion scam. He urged the court to rely and follow the Fawehinmi Vs Atiku’s case (supra).

 

        Touching on some factual situations, Mr. Keyamo said he wrote a letter to the National Assembly and was directed at the speaker which is adequately referred to in page 49 of the motion papers. By that letter, according to Mr. Keyamo, he did not accuse the Speaker i.e. 1st accused/applicant of any financial impropriety. There was no attack, no hatred and no vendetta. What he merely did, according to him is to urge the speaker to investigate certain issues. Mr. Keyamo then referred to paragraph 8 of their affidavit which says that as far back as year 2000, Alhaji Na’aba, then speaker of the same House of Representatives was asked the same thing. So as far as he is concerned, it is a consistent attitude and not any personal hatred for the 1st applicant. Mr. Keyamo pointed out that even when Service Chiefs were appointed, he went to court to stop the exercise and that Chief Awomolo SAN was even his lawyer.

 

         Ditto for the publication in the Newswatch. They merely called for a probe. He did not make any allegations. Mr. Keyamo said that in any case, the Newspaper publications did not establish the truth of anything alleged.

 

          On the issue of signing the signing the charge sheet, Mr. Keyamo argued that it is not the position in law that once you sign a charge sheet, then you are the one prosecuting. He said their affidavits even stated the fact that he was hired by the EFCC to do so. Finally, he submitted that the court is the arbiter and that it is the impartiality of the court that is important. He relied on the unreported case of Bode George Vs FRN and Agbai Vs INEC (2008) 14 NWLR (Pt 1108).

 

         In treating this aspect of the application, I wish to deal with it on two fronts. First is the legal implication of Mr. keyamo, a private legal practitioner prosecuting a case on behalf of a Federal Government Agency. The relevant question is; can a private legal practitioner institute and prosecute a criminal action in our law courts when engaged to do so by a Government Agency or Department. This is the first frontal view.

 

         Secondly, must a prosecutor eschew bias in the prosecution of a case he is handling? This is the second frontal view. Incidentally, 95% of Chief Awomolo SAN’s energy was dissipated on this second view. Mr. Oyetibo SAN was similarly inclined. The main if not whole of their argument was centered on the issue of bias of a prosecutor and in effect that of Mr. Keyamo.

 

        I repeat the question then; must a prosecutor eschew no bias in the prosecution of a case he is handling?

 

        In answering this question, we have to approach it from two solid angles; what is the legal meaning of bias and who is this prosecutor under reference?

 

       The word bias can be construed both as a noun and as a verb. According to oxford advanced Learner’s Dictionary, when it is use as a noun, it means thus

 

                          “a strong feeling in favour of or against one

                            group of people or one side in an argument,

                            often not based on fair judgment”.

 

        When used as a verb it means

 

                            “to unfairly influence somebody’s

                             opinion or decision”.

 

       Let us now x-ray the two meanings.

If the ‘bias’ as appeared in my earlier question is put in the garb of a verb, then I cannot see how Mr. Keyamo’s bias will influence my opinion or decision. What it means is that if he is biased as to desire to unfairly influence my decision in this case, then I, with all sense of modesty and humility but with all emphasis at my disposal say that, it cannot be. And I don’t think that he would even try it. We must accord him that respect. I must hasten to add that in the unlikely event of him trying it, he will fail totally. So the defence need not worry if Mr. Keyamo is biased or likely to be biased in that sense. This position is equally true of the defence, their bias in the sense of a verb, is nothing to be worried about as it shall insha Allah, be of no effect or bearing in my decision.

 

        Secondly, and this is also important, if the ‘bias’ in that question is a noun, then it means something personal and limited to the state of mind and feeling of the person holding it. In that case, the person holding the bias holds it alone and resonates in him or her alone. It is when he or she desires to translate it to an unfair advantage to influence another person to his or her side that it will move to the realm of a verb and the consequence in this instance is what I have said before.

 

        Therefore, going by the dictionary meaning of bias, I see no harm in it. It is certainly not of any fatal consequence to the case of the defence. In any case, a defence counsel can equally be biased and still send no danger signal in criminal trial.

 

        Perhaps it must be stressed at this juncture to the elastic limit that the only bias that is of great interest, value and importance in criminal trial is the bias of the judex. Black Law dictionary defines bias as inclination, prejudice and predilection. The same Dictionary compartmentalizes bias into 3; actual bias, implied bias and judicial bias. The Dictionary at page 171 explained judicial bias thus;

 

                    “A judge’s bias toward one or more of the

                     parties to a case over which the judge presides.

                     Judicial bias is usually insufficient to justify

                     disqualifying a judge from presiding over a

                     case. To justify disqualification or recusal, the

                     Judge’s bias usually must be personal or based

                     on some extra-judicial reason”.

(Underlining mine)

 

        It is crystal clear and beyond argument therefore, that the only bias of significant consequence in criminal or civil trial is that of the adjudicator. And even in that one too, it is not all forms of bias that will disqualify the judge from hearing the case. It must be bias that is personalized or ill-motivated and one that flows from extra-judicial parameters.

 

         But as regards a prosecutor, such a distinction is not apparent in our criminal trial system. We should therefore not import it into it. In essence, a prosecutor need not be completely free of bias in the handling of the case he is prosecuting. Once he accepts the brief or the responsibility to prosecute, bias automatically sets in. in any case, hardly can the reverse or the opposite happen. That is a prosecutor being free completely of bias is a near impossibility.

 

          Before I draw the curtain on this issue, let me refer to the cases cited by Chief Awomolo SAN. The learned SAN grouted some portion of the Supreme Court judgment in the cases of Akilu Vs Fawehinmi (supra) and Akinfe Vs State (supra). With due respect to the learned counsel, those authorities cannot avail him. If anything, they re-inforce the position I have taken on this aspect of this application. I take the liberty to set them out. In Akilu’s case (supra), the Supreme Court held;

                           “The liberty to make any accusation against

                           any person is predicated on the right to make

                           such accusation and the right of any person so

                           wrongly accused and thereby injured in the

                           process seek appropriate remedy in the Courts.

                           The Court are established to protect both rights

                            validly exercised and not only to protect the

                            citizen who falsely, even if erroneously, believes

                            in the exercise of his right”.

 

          That is not all. Karibi-Whyte JSC as he then was, said in that same Akilu’s case (supra)

 

                             “While one appreciates the efforts of the

                               respondent to carry out a public duty, my

                               view is that the prosecution of criminal

                               offenders should be conducted within

                               respectable limits. It should be borne in

                               mind that relentless litigation offends against

                               the norms of the society and consequently

                               beclouds the good intention of prosecution;

                               In the end, such prosecution does little to

                               advance the course of justice”.

 

         I cannot see anywhere in the above quoted passages where the Supreme Court said a Prosecutor must be unbiased. Am glad, Chief Awomolo SAN quoted those passages in his well-written address. With due respect to Chief Awomolo SAN, nothing in the decision either in letters or spirit justify his submission that a prosecutor must be unbiased. Absolutely nothing. If anything, the decision is directed at the courts of trial and prosecution who have no regard for speedy trial. Furthermore, the portion of Eso JSC as he then was in Akinfe’s case (supra) and which was brought out boldly in focus by Chief Awomolo SAN is a strong axe against the position the learned SAN has taken himself. This is what the erudite former Supreme Court Justice said;

 

                            “What is bias? It is shown as an act of

                              partiality. What is proof? It is what an

                              ordinary reasonable by-stander would

                              regard as bias. What reasonable man

                              would watch the trial as I have revealed

                              who would go home and say that justice

                              has been done to the accused. What

                              reasonable man would not wonder what

                             The concern of the judge was in his display

                             of forensic ability against an accused person

                             who seeks justice before him? What reasonable

                             man would not wonder which of the two, the

                             state counsel or the judge was the prosecutor

                             in this case. It, with respect show of trial and

                             with respect an immature approach to the

                             administration of justice to sit out for a kill

                             against any party that stands in the imaginary

                             scale held by a judge.”

 

          I doubt if I need to say again that the above passage referred to judicial bias. It is too plain to be construed otherwise. Lastly on this area, I read the Guidelines for prosecution presented by the learned counsel to the 1st accused/applicant. I read it more than five times. I see nothing therein that suggest it emanated from a good source. The author is not stated. It simply says guideline for prosecutor who issued the guideline? Nobody knows. It deserves no extensive treatment. I should be allowed to gloss over it just in one sentence. In effect my question and that of Mr. Oyetibo SAN that must a prosecutor be unbiased is therefore answered in the negative. A prosecutor need not be unbiased.

 

         We must not forget that I am treating this question from two angles. The 2nd angle is this. Who is this prosecutor we are talking about? He is Mr. Festus Keyamo. That seems unnecessary since we all know. But it creates no harm to give his name again and again. He is a Legal Practitioner of some considerable experience. This one too is obvious. His activities from the affidavit evidence in court shows that he tends to be a social critic of relentless dispositions. And if I may use Mr. oyetibo SAN’s word, he is a crusader. I think I must provide a caveat here. He is not a religious crusader but simply a social-political and economic crusader. His past activities from the exhibits attached to the various affidavits attested to this appellation. For instance, he once wrote in the recent past to the President of this Country saying he should not appoint some persons to the exalted position of Service Chiefs in the Armed Forces. I need not multiply this example.

 

          In essence, I agree completely with him that he has been consistent in his personal given role of guiding the conscience of this Nation. He did it to Alhaji Ghali Na’aba, GCON when he was the Speaker of the House of Representatives. He was equally critical of General I. B. Babangida GCFR, and many others like that. I therefore cannot see anything personal against the 1st accused/applicant. We must readily concede the fact Mr. Keyamo’s activities pre-date the tenure of Rt Hon. Dimeji Bankole GCON as Speaker. In any case and having regard to what I have said before, even if he has any axe to grind against the 1st accused/applicant, it is not of any consequence in this court. He is not the judge and if there are no evidence to justify or anchor his bias, then it amounts to nothing. It is with all these reasons that all the Newswatch and the News publication weighs nothing in my mind.

 

          With this last sentence, I resolved the second frontal view in favour of the Respondent. A prosecutor can be biased in the handling of his case without doing any harm to the administration or interest of justice. Once the judge is not biased in the sense I have explained earlier, then everybody is safe.

 

          I now come back to the 1st frontal view. I mean the first question. I think I should remind us of the question. Can a private legal practitioner institute and prosecute a criminal action in our Law Courts?

 

        Before I answer the question, I wish to observe that the learned counsel to the 1st accused/applicant, Chief Awomolo SAN seems not to be too bordered by this aspect of the matter. He like his learned colleague; T. Oyetibo SAN, conceded the point that the Attorney-General and the EFCC can prosecute. That is not a surprise anyway. But Chief Awomolo SAN made no concrete submission on the position of a private legal practitioner initiating and undertaking criminal prosecution either for himself or on behalf of the State or any Organ of the State. All he was concerned with was the person of Mr. Festus Keyamo. He brilliantly narrowed the issue to who Keyamo is and therefore the competence of Mr. Keyamo only. So as far as Chief Awomolo SAN is concerned, (this is the impression I gathered from his address), any other person can prosecute once the Fiat of Attorney General is given but not Mr. Keyamo. What he wrote at page 3 of his address can liven up the issue. I think I should bring a portion of it out. It is this

 

                     “With great respect, we submit that the applicant

                       Is not saying he intends to choose the person to

                       Prosecute him. He is not even questioning the

                       Powers of the EFCC or Attorney-General to try

                       Him in this application ……………………………………

                       ……………………………………. What he is saying is

                       Simply: this man who is to try me;

 

is a fellow that has made several allegations

against me in the past and was alleged to have

forged documents

              b. This fellow will not be fair to me

              c.  I see Mr. Keyamo as a person that will persecute

                   and not prosecute me.

              d.  Mr. Keyamo has a vendetta against me and I am sure

                   where there are facts likely to exonerate me in this

                   proceedings, he will not bring same up, but rather

                   suppress it to make sure that I am hanged either way.

              e.  This man has in the past called me a criminal, a man

                   worse than a person who was earlier relieved on the

                   position of Speaker, House of Representatives, due to

                   allegation of fraud”.

 

        The learned Senior Advocate of Nigeria is not done yet. He concluded by saying

 

                             “These are the issues raised and argued in this

                               application and not the power of the Attorney-

                               General to prosecute or appoint and therefore

                               all the argument of Mr. Keyamo on this point

                               goes to no issue.”

 

        He then cited some foreign cases that are only persuasive. They are U.S Vs Montaya 45 F 3d 1286, W. D. Tenn 1993; (1) D. D. C 1990; (1) C.A.6 (KY) 2000 and U.S Vs Wells 211 F.3d 988 Fed. App. 161P.

 

        As would be shown shortly, and with great respect to Chief Awomolo SAN and without demeaning his effort, industry and high level of advocacy, I will not exert my energy on those authorities. Already, we have enough Nigerian authorities to determine the issue in focus.

 

          But Mr. T. Oyetibo SAN took the argument beyond the person of Mr. Keyamo. His own submission was based on the legality of Mr. Keyamo, a private legal practitioner who has not shown any authority to the Court empowering him to prosecute and undertake the prosecution of this case. In other words, he dealt with the issue whether a private legal practitioner can prosecute and in so doing, he touched admirably on the cases cited by Mr. Keyamo. He submitted very powerfully that the cases of Amadi Vs FRN (2008) 18 NWLR (Pt 1119) 259; FRN Vs Osahon (2006) 5 NWLR (Pt 973 361; Ebe Vs C. O. P (2008) 4 NWLR (Pt 1076) 189; Nyame Vs FRN (2010) 7 NWLR (Pt 1193) 344; Tukur Vs Govt of Gongola State (1988) 1 NSCC30; and A. G. Federation Vs. ANPP (2003) 18 NWLR (Pt 851) 182 are all distinguishable from the present case at hand.

 

        Mr. Oyetibo SAN said unlike Amadi’s case (supra) and Nyame’s case (supra) where EFCC or one of their staff applied for leave to prefer a charge, it is Mr. Keyamo himself that applied for leave and signed the Charge Sheet. He argued that Mr. Keyamo cannot do any of this without a legal FIAT to do so.

 

       Submitting on Osahon’s case (supra), Mr. Oyetibo SAN said that it was a police officer who preferred the charge and was held to possess prosecutorial powers under S174 (1) of the 1999 Constitution. The learned Senior Advocate of Nigeria wrote at page 6 of his reply address thus;

 

                  “It is not disputed by the applicant, on the

                    authority of Osahon’s case (supra) that

                    the EFCC can initiate criminal proceedings.

                    But can it authorize a private legal practitioner

                    to prefer a charge as a ‘private prosecutor’

                    as the prosecutor in this case has described

                    himself? The answer is NO. Thus there is a

                    difference between a private prosecution

                    instituted by a public body like the EFCC

                  but being conducted by a private legal practitioner.”

 

        The learned SAN then went on to say that Mr. Keyamo’s submission on general permission was misplaced. This according to him is because he has not shown any permission and that unlike what happened in Bode George’s case where the letter of authorization was placed before the court, no such thing has occurred in this case. Mr. Oyetibo SAN went further to say that even if there was a general delegation of power to the EFCC by the Attorney-General of the Federation as alleged by the private prosecutor, the EFCC cannot in turn delegate the power to the private prosecutor. He relied on the maxim – delegatus non potes delegare.

 

        It is pertinent at this juncture to state that the submission of Mr. Keyamo on this issue of private prosecution actually set the tone for the argument of Mr. Oyetibo SAN as elucidated above. Mr. Keyamo at pages 11-26 of his address in reply to the 2nd accused/applicant’s motion dated 14th July 2011. Referring to S98 (1) of the High Court Act Cap 510, Laws of the Federation of Nigeria, Abuja 1999 and also S174 of the 1999 Constitution, Mr. Keyamo submitted that even without the authorization of the Attorney-General of the Federation, the EFCC was in order to have briefed him to conduct this prosecution on their behalf. According to him, S98 of the High Court Act which is in pari-material with S56 of the Federal High Court Act should be seen as null and void for its inconsistency with the provisions of S174 (1) of the 1999 Constitution. The learned prosecuting counsel, relied heavily on the case of Osahon (supra) and Okafor Vs AG Rivers State (1998) 7 NWLR (pt 556) 38.

 

         I should feel free here to revert back to the question - can a private legal practitioner initiate and undertake private prosecution in Nigeria? Or better put, is the fiat of the Attorney-General of the Federation a sine qua non to such prosecution by a private legal practitioner?

 

        I make bold to say NO. With great respect to Mr. Oyetibo SAN, all his submissions and ingenuity in trying to distinguish all the authorities cited by Mr. Keyamo are really not correct. Brilliant as they are, they missed the point by a narrow margin. I believe if the learned SAN tarry a little and reflect deeper, he would discern the proper interpretation the Supreme Court ascribed to S174 of the 1999 Constitution in OSAHON’s case (supra). I have no doubt, not even the slightest doubt in my mind that the submission of Mr. keyamo on this issue vis-a vis the provisions of S174 of the 1999 Constitution and the apex court’s decision in OSAHON;s case adequately reflected the true position of the law as at today. I agree with him entirely.

 

         All I am saying is that from the wordings of S174 (1) of the 1999 Constitution and the interpretation eloquently ascribed to it by the Supreme Court in OSAHON’s case (supra), any person can initiate, and undertake criminal prosecution with or without the fiat of the Attorney-General of the Federation. The import of the decision is that such fiat of the Attorney-General is now superfluous. By that majority decision of the Supreme Court, the fiat of the Attorney-General is already given constitutionally, though by implication and not expressly, vide the provisions of S174 (1). And the implied fiat or authorization is to any PERSON or AUTHORITY. The only caveat is that the Attorney-General can take over either to continue or discontinue.

 

      So the erudite submission of Chief Awomolo SAN at page 29 Paragraph 3.27 of his written address that without the fiat of the Attorney-General sought and granted to a private prosecutor, any criminal action will be unconstitutional, null and void cannot be the law.

          It would do no harm to this Ruling if I set out the relevant provisions of the Constitution and the holden of the Supreme Court at this juncture. Section 174 (1) of the Organic Law provides;

 

                         “The Attorney-General of the Federation

                           Shall have power –

to institute and undertake criminal proceedings

                    against any person before any Court of Law in

                    Nigeria, other than Court Martial, in respect of

                    Any offence created by or under any Act of the

                    National Assembly.

to take over and continue any such criminal

Proceedings that may have been instituted by

any other authority or person, and

     c. to discontinue at any stage before judgment is

         delivered any such criminal proceedings instituted

         or undertaken by him or any other authority or

         persons.”

(Underlined are mine)

 

        The above is the provision the Supreme Court was faced with in OSAHON’s case (supra). The learned Justices of the Supreme Court held as follows: Per Kutigi JSC, ( as he then was)

  

                         “From the provisions of the Acts and the

                          Constitution cited above, which in my view

                          Are clear and unambiguous, it is evident that

                          The following persons have the right to practice

                          In the Federal High Court;

All persons admitted as legal practitioners

To practice in Nigeria (subject to the provisions

Of the Constitution and the Legal Practitioners

Act) (see S57);

Law Officers (see Section 56 (1)

State Counsels (See Section 56 (1)

Any legal practitioner duly authorized in that behalf by or on behalf of the Attorney-General of the Federation (See Section 56 (1)

Police Officers (see Section 23 of the Police Act)

Any other authority or person (See Section 174 (1) (b) and (c) of the 1999 Constitution.

 

        One can safely say that the people mentioned under (2) (3) and (4) above, must also necessarily be persons admitted as legal practitioners to practice in Nigeria just as it is under (1). THOSE UNDER (5) AND (6) NEED NOT BE LEGAL PRACTITIONERS AT ALL. BUT IF THEY ARE, THE BETTER.’’

(Underlined and capitalized are mine).

 

          Pats-Acholonu JSC put the matter succinctly thus:

                      

                          “The implication of the intendment of Section 174 (1)

                            Of the Constitution is that the office of the Attorney-

                            General does not have the monopoly of prosecution

                            Though it has the power to take over any case in any

                            Court and decide whether to go on with it or not.

                            GENERALLY SPEAKING, ANY LEGAL PRACTITIONER NOT

                            DEBARRED EXCEPT UNDER SOME RESTRICTION

                            RECOGNISED BY THE PRIMARY LAW OF THE LAND, HAS

                            THE RIGHT OF AUDIENCE IN ANY COURT. This equally

                            Implies or denotes that in appropriate cases, such a

                            Legal practitioner coming under the description as

                            Contained in the Legal Practitioner’s Act has the right

                            Of appearance which term include prosecuting a case,

                           And can due to the wide open door of Section 174 (1)

                           Initiate criminal prosecution on behalf of the agency

                           He works for particularly as in this case, an institutional

                           Body vested with power to check, prevent and

                           Investigate crimes and even to prosecute.”

(Capitalization and underlined are mine)

 

             The above, to my mind is too clear as not to admit of any confusion. So, the fact that a policeman, (who incidentally is also a lawyer) was involved in the OSAHON’s case (supra) as insisted by Oyetibo SAN as a distinguishing factor does not in any way take away the main purport of the Supreme Court decision that ANY PERSON can prosecute subject of course to the over-riding power of the Attorney-General to take over. That ‘any person’ if it happens that he/she is a lawyer, then beautiful and perfect. I hope the two learned Senior Advocate on the other side of the divide of Keyamo especially Mr. Oyetibo SAN will appreciate this point clearly in the light of ratio 4 of the Supreme Court’s decision in this all-important OSAHON’s case (supra). It was held by the Supreme Court that the word “any person” in Section 174 (1) (b) of the 1999 Constitution envisages a legal practitioner qualified to appear in all Superior Courts of record in Nigeria as provided by the Legal Practitioners’ Act. And “any other authority” presupposes that authority could be represented by a legally qualified person, either in that authority or engaged for the purpose by that authority. The Supreme Court went on to say that it does not mean that in any case, a legally qualified person must appear even though it is desirable.

 

         In the light of all the above, the dichotomy that Mr. Oyetibo SAN tried to create as between a private prosecution instituted and being undertaken by a private prosecutor and a public prosecution by a public body like the EFCC but being conducted by a private legal practitioner is, with great admiration and respect to Mr. Oyetibo SAN not of any significance or importance. It fizzles out completely when the issue relates to competence to prosecute. It must be appreciated by all that the important thing is that any person (including Keyamo) can prosecute whether as private prosecutor who has taken it upon himself so to do and probably finance it or whether he was briefed and authorized to do so. If anybody now allege that Keyamo was not authorized to prosecute, that person must prove it. In any case, the Respondent in Paragraph 2 of their further affidavit says Keyamo have the authority of EFCC to prefer the charge and prosecute the matter. The question now is, is there anything to the contrary from the applicant’s affidavit? The law is now trite that deposition not challenged are deemed or taken to be true.

 

       Before I conclude, the issue of whether EFCC can prosecute in the name of the federal Republic of Nigeria is to me a non-issue. Whether they sue using STATE or EFCC or FRN is certainly not of any significant consequence. This issue is not worth wasting our precious time upon.

 

         In conclusion and in the light of all the foregone, I hold that Mr. Festus keyamo can legally prosecute in this case and in this court. He cannot be disqualified nor excused. This application therefore fails.

 

(2) QUASHING OF THE CHARGE (MOTION NO M/8863/11 AND MOTION NO M/9405/11)

 

          As I indicated at the start of this ruling, I intend to take all the arguments in these motions together. Luckily for me, the prosecution’s address on the issues involved in respect of the two motions are similar and the same.

          

          In support of Motion No. M/8863/11 is a 17-paragraph affidavit and a written address. There is also a further affidavit in support of the same application. It is a 9-paragraph affidavit. Motion No. M/9405/11 has a 9-paragraph affidavit in support and a written address.

 

           I had already set out the arguments of Chief Awomolo SAN, the leading learned Counsel for the 1st accused/applicant. Principally speaking, his arguments are 3-fold:

        

That this court has no jurisdiction to try the speaker of House of Representatives or subject him to jurisdiction in all matters which related to, connected with and arose from any exercise of his official functions.

That in the exercise of his duties in matters relating to his office as speaker of the House of Representative, he cannot be prosecuted for the acts, decision and resolution of the House of Representatives, taken at its Executive or Committee Sessions because the principle of vicarious liability is unknown to criminal law in Nigeria.

That there is no scintilla of evidence contained or shown in the proof of evidence placed before this court capable of sustaining the 17-count charge.

 

       The learned SAN cited a number of cases in support of his argument. They are INEC Vs Musa (2003) 3 NWLR (Pt 806) 72; Senator B. C. Okwu Vs Senator Dr. Wayas & Ors (1981) 2 NCLR 522; A.G. Federation Vs. Abubakar (2008) 16 NWLR (Pt 1112) 135; Emeka Vs Oguari (1996) 5 NWLR (Pt 447) 227; Egbe Vs Adefarasin (1985) 1 NWLR (Pt 3) 549; Lautech Vs Ogunwobi (2006) 4 NWLR (Pt 971) 569.

 

        Let me quickly deal with the issue of jurisdiction. The argument of Chief Awomolo SAN is that the Court has no jurisdiction to try this case because the 1st accused as Speaker cannot be tried for all matters which are related to or connected with or arose from any exercise of his official functions. But is this assertion true in Law? With due respect to the learned SAN, the 1st accused/applicant as Speaker, when it lasted enjoyed no immunity by virtue of his office.

 

         Again, even if for purposes of argument, we say he had that immunity, is he still the speaker of that House of representatives, my answer is as good as yours. He is not. Now, having left office, can we say with all seriousness that he cannot be prosecuted now for any offence committed while in office? I think I should just leave this argument as it is. It does not worth any serious consideration because it is clear to me that no issue of jurisdictional competence is involved.

 

       Back to the issue of quashing the charge against the two accused persons, Mr. Tayo Oyetibo SAN, submitted that a criminal charge is liable to be quashed if it does not disclose a prima facie case against the accused. Otherwise the accused would be put in a situation where he  would have to prove his innocence or be compelled to do so. This according to the learned SAN is contrary to the provisions of S36 (5) of the 1999 Constitution. The learned counsel to the 2nd accused/applicant then defined the phrase “prima facie case” relying on the old case of Ajidagba Vs I. G. P (1958) 5 CNLR 60. Thereafter the learned Senior Advocate of Nigeria review the contents of the 17-counts, breaking them into 5 categories and concluded that there are no materials in the proof of evidence linking the accused with the statutory elements or ingredients of the offences charged. See pages 7-21 of his address dated 14-7-11.

 

        Furthermore, in his reply address to the prosecution’s address, Mr. Oyetibo SAN submitted that the inherent jurisdiction of the court to quash a criminal charge that does not disclose a prima facie case against the accused is not in any way clogged by the fact that leave had been granted to prefer the charge. He relied on the case of Ikomi Vs State (1986) 3 NWLR (Pt 28) 340.

 

      Mr. Festus Keyamo, the learned prosecuting counsel, in his reaction to Motion No. M/8863/11 filed a 10-paragraph counter-affidavit, a further affidavit of 8-paragraphs and another 8-paragraph further and better affidavit. He also filed a written address in support.

 

      In the same vein, the learned prosecutor filed a 5-paragraph counter-affidavit to the motion of the 2nd accused/applicant and also a written address.

 

      The content of Mr. Keyamo’s addresses in response to the two motions are identical. The substance of his submission is that the prayers from the two accused/applicants asking that the charges be quashed are tantamount to asking the court to sit on appeal over its ruling. He noted that the applicants’ arguments had touched on issues which ordinarily should be left to trial and final address. Learned prosecuting counsel submitted that the court runs the risk of making far-reaching conclusion or pronouncement at this stage in respect of the proof of evidence if the court gets carried away with the argument of the two learned Senior Advocates of Nigeria. Expatiating further, Mr. Keyamo wrote thus;

 

                      “The law is that the court must never consider

                        whether there is a prima facie evidence at

                        this stage. The court is only obliged to consider

                        whether there is a prima facie case at this stage

                        this means the court should only consider

                        whether the name of the accused/applicant

                        has been linked with any of the counts in the

                        charge to call upon the prosecution the prosecution

                        to elaborate further and not whether the

                        evidence is sufficient to convict or not. That can

                        be at the stage of a no-case submission or final

                        address. This position of the law was explained

                        further in the case of NYAME Vs FRN (2010) 7

                        NWLR (Pt 1193) 344……………………………………..

           The learned prosecutor then took the arguments with respect to the 17 – counts one after the other. It runs from pages 7-71. I think he did this in an apparent bid to play safe in case the court is inclined to doing a thorough examination of the proof of evidence and the 17-count charge.

 

          Let me observe here, as a very important preliminary point, that the controversy whether or not it is legal and/or permissible for an accused person to bring an application to quash the charge against him so soon after plea had been taken, more so when there is no express provision in the Criminal Procedure Code, would seem to have been laid to rest by the Court of Appeal in the case of Aduku Vs FRN (2009) 9 NWLR (Pt 1146) 370. In that case, the appellant and his co-accused were charged with similar and different counts but the appellant was charged with only 14 out of the 56 counts. The 14 counts charge against him were made up of the offences of conspiracy contrary to Section 97 of the Penal Code, Criminal breach of trust by public servant contrary to Section 315 of the Penal Code and dishonestly receiving stolen property contrary to Section 317 of the Penal Code. The appellant pleaded not guilty to the charges against him. Subsequently, the appellant file a motion for striking out or quashing of the charges against him. It was held by the court of Appeal that S167 of the criminal Procedure Act, which provides that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later does not have any equivalent provision in the Criminal Procedure Code. It means therefore that under the Criminal procedure code, any objection to a charge or a formal defect on the face thereof could be taken even after the charge has been read over to the accused and his plea taken in the states of the Federation of Nigeria in which the Criminal Procedure Code operates and that in that case, like in the present case at hand, CPC applies in the Federal Capital Territory.

 

         Further on this point, the Supreme Court in the case of Nyame Vs FRN (2010) 7 NWLR (Pt 1193) 344, was more emphatic on the issue. The Supreme Court even said, the application to quash can be made under S185 (b) of the CPC.

 

           In that case, the trial court, after a consideration of the proof of evidence attached to the application, granted the application to prefer a charge. The appellant subsequently filed a motion on notice at the trial court seeking an order quashing all the forty-one counts charge preferred against him for failure to disclose a prima facie case against him and for want of jurisdictional competence.

 

           On appeal all the way to Supreme Court, the apex court held as follows:

 

                          “In the criminal administration of justice under the

                            Nigerian Legal System, the criminal procedure code

                            confers on a person accused of an indictable offence

                            the right to have the charge quashed, and this can

                            be done by the accused person, filing before the court,

                            a motion on notice under Section 185 (b) of the

                            criminal Procedure Code, supported by affidavit

                            praying the court to quash the charges preferred

                            against him.”

 

             Following the above clear authorities, it is now beyond arguments that the submission of Mr. Keyamo, the learned prosecutor that this application to quash cannot be made at this stage is not correct. With due respect to him, the application to quash the charges by the 2nd applicant is properly made before the court. And in any case, Mr. keyamo’s submission that the application should have been to set aside the leave granted or have the leave to prefer a charge quashed is all the same thing. If the leave is set aside, the charge is automatically set aside. If the leave is quashed, the charge goes with it.

      

       I therefore agree with the learned counsel to the accused/applicants, especially Mr. Oyetibo SAN that the criminal charge is liable to be quashed if it does not disclose a prima facie case. And such order to quash may be made by the same court who granted the leave to prefer the charge.

 

         It must be realized that when the leave to prefer a charge was granted, the other party i.e. the applicants were not there. It wa an order ex-parte. So they are entitled to be heard and considered in argument urging the court to re-consider the order earlier given. It is not a case of the court sitting on appeal over its earlier decision as contended by the learned prosecutor. It is a case of hearing the other side.

 

          Now that I have considered the submission on both sides as regards whether an application to quash charges can be brought after plea has been taken, the next germaine question is, do I still stand by my ruling of 13-6-11 wherein I held that a prima facie case was made out? We must not forget that a prima facie case means that there is ground for proceeding. However, it is not the same as proof which comes later when the court has to determine whether the accused is guilty or not guilty. The evidence discloses a prima facie case when it is such that if uncontradicted and if believed, it will be sufficient to prove the charge against the accused. The question whether proof of evidence discloses prima facie case against an accused person is not to decide whether the proof of evidence is sufficient to indict, or is capable of  proving the case against the accused person or enough to convict him for the offence charged. It is simply to examine the proof of evidence to find whether there is any evidence connecting the accused person to the offences charged upon which he can be called to explain his own position. It is not only unjust but also painful and unfair that an accused should be put on trial if there is no link between him and the offences charged. Where there is a link prima facie, the court would be entitled to proceed to trial. See Nyame’s case (supra).

 

       So what do I find again in this proof of evidence? Any link of the two accused/applicants with the offences alleged in the 17-counts charge. My answer again and as before is in the affirmative. I need not go into details. It suffices to say, the offences are criminal conspiracy, theft, criminal breach of trust etc contrary to the provisions of the Penal Code. The accused persons were the head and the principal officers of the entire membership of the House of Representatives at the material time. They participated, at least so says or reveals the proof of evidence, in all deliberations leading to the source of the loan from the bank and which culminated in the alleged offences. The 1st accused was alleged to give approval for it. All these acts set the ball rolling for the series of events that led to this action. Like I said before, I need not go into details now; all I need to say and be convinced about is that there is sufficient link between the accused persons and the witnesses’ statements and documents in the proof of evidence vis-à-vis the charges.

 

    I make bold to say that the danger of examining this application in full and in details is too obvious to be ignored. It manifests that the defence counsel had already, wittingly or unwittingly, assumed or believed that evidence had already been laid by the prosecution in this case. This is a big misconception or legal error. What was placed before the court and styled ‘proof of evidence’ is no more than the materials that the prosecution intends to lay properly before the court at trial. When that is effectively done, it becomes evidence upon which the court will scrutinize and meticulously comb every bit of it. ‘Proof of evidence’ is akin to pleadings in civil cases. Pleadings in civil cases, are statements of fact which a plaintiff intend to rely upon at trial. They are no evidence unless and until properly laid in court by witnesses. Ditto ‘proof of evidence’ in criminal trials. They are no evidence unless and until when placed before the court by witnesses.

 

       I must stress that to go beyond what I did when considering the application for leave to prefer a charge is to ascribe probative value to the proposed evidence yet to be laid in court during trial. That certainly must not be done.

 

       It must be recalled here that on the 13th of June 2011, I looked at the proof of evidence attached to the application for leave to prefer a charge. I then held the view that, prima facie, there is a nexus between the accused persons and the alleged offences. I granted the leave instante. The charges were read and the accused/applicants pleaded not guilty.

 

        That pretty appears to me that it is for the same reasons and arguments ably marshaled by the learned defence counsel that the accused/applicants pleaded not guilty to the charges. So one would expect, with great respect to the learned counsels for the defence that they would allow the prosecution to quickly lay the evidence they have properly at trial. When that is swiftly done, the evidence shall then be subjected to the crucibles of cross-examination and re-examination. At the end of that well known exercise in legal parlance, the coast shall then be cleared for the court to do a thorough evaluation of them.

 

          Let me say, with no intendment that the learned defence counsel don’t know, perhaps it is a reminder that under the criminal procedure code, when the prosecution are done with their witnesses, 3 options are opened to the accused or defence. A no-case submission can be made, the case of the accused can be rested on that of the prosecution without the accused person(s) uttering a word or calling witnesses and lastly the accused person(s) may elect to give evidence and also call witnesses. So the address submitted for this application can then gravitate at that stage in support of any of those options. And the court would be bound to examine all of them in details as appropriate. In effect, those submissions and issues canvassed could then be a defence.

       In effect and in conclusion without wasting time, the course of justice would be better served if this case proceeds to trial, thereby affording the two accused persons the opportunity to defend themselves having regard to the circumstances of the case.

          The leave earlier granted to the prosecution is in order. The two applications are therefore lacking in merit and are hereby dismissed. 

 

..........................................

Hon. Justice S. B. Belgore        

(JUDGE) 21-10-11.

       

                       

 

 

       

      

                       







 

 

 

 

 


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