Justice Emeka Nwite of the Federal High Court in Abuja on Wednesday adjourned proceedings on the alleged money laundering case instituted by the Economic and Financial Crimes Commission, EFCC, against a former governor of Kogi State, Yahaya Bello, to September 25.
Justice Nwite said proceedings in the case would continue despite the appeal filed by the defendant.
Counsels to the former governor told the court that they had filed an application for stay of proceedings on the case, pending the determination of the appeal pending before the Appeal Court on the arrest warrant earlier granted by the lower court and other rulings.
When hearing resumed on the matter at the Federal High Court yesterday, counsel to the defendant, Abdulwahab Mohammed (SAN) argued that the court could not proceed on the matter until the pending appeal is determined, citing authorities.
He also decried the treatment meted out on his colleague at the last hearing, saying the prosecution misled the court.
“Your Lordship is functus officio. Heavens will not fall if he awaits the Court of Appeal. We are relying on the provisions of the constitution which overrides the EFCC Act which the prosecution is relying on,” Mohammed said.
However, counsel for the EFCC, Kemi Pinhero (SAN) opposed Mohammed’s deposition, saying the defendant had not shown any document showing that it wants the lower court to stay proceeding.
At that point, Justice Nwite asked whether, having received the application and affidavit, and being aware of the pending appeal, it would not amount to judicial rascality for his court to continue proceedings on the matter.
“Won’t it amount to judicial rascality to continue this case when there is an issue of jurisdiction?” the judge asked.
But the prosecution counsel said “it is not really an issue of jurisdiction”, adding that in the face of Section 40, the mere filing of an affidavit could not suffice as the case was not a civil one.
He urged the court to stick to the matter of the day, which was the ruling on the arguments presented on June 27.
The defendant’s counsel, however, told the court that the judge was misled on June 27 and that the request was for the proceedings of that day to be expunged.
“They are asking your lordship to undo the work of the Court of Appeal. To avoid controversy and in order not to render the appeal nugatory, this should not continue. Even if Bello were to be here, you cannot arraign him,” he argued.
He said “The affidavit filed on July 16 is to bring to your lordship’s attention, the notices of appeal filed against your lordship’s ruling on April 23 and May 10. This appeal was transmitted to the Court of Appeal on May 23 and the appellant’s brief of argument was filed on May 31. Motion for stay has also been filed at the Court of Appeal. The two appeals basically challenge the jurisdiction of this court to entertain the charges ab initio.
“We urge your lordship to expunge the record of the proceedings on June 27 because at that time, an appeal had been entered and the proceedings should not have happened. The court was functus officio,” Wahab argued.
He said insisting on hearing the matter would bring his lordship into conflict with the Court of Appeal.
Pinheiro stated that one of the appeals sought to have His Lordship stay further proceedings until the determination of the appeal.
He, however, noted that the judge was bound by his own rulings and, therefore, had the discretion to determine whether to proceed or not, noting that the first authority that the defendant’s counsel cited was a 1999 case that predated the EFCC Act 2004.
Responding on the point of law, Wahab said “we have two notices of appeal – one is on mixed law and fact, and the other is on jurisdiction. The authorities he has cited are different from jurisdiction. Chukwuma v IGP is on admissibility of document and not jurisdiction.
“In Chief Cletus Ibeto v Frn, which is an ongoing criminal appeal, the facts are on all fours with the recent case. The lower court stayed proceedings because of the issue of jurisdiction and now the argument at the Court of Appeal is on 306. That is how it is supposed to be.”
In his ruling, Justice Nwite said “the grant of stay of proceedings is at the court’s discretion. And since it is an issue of discretion, no one can give an authority for the judge to rely on. The judge only needs to exercise this power judicially.”
The judge, who had asked before the recess if it would not amount to judicial rascality to continue the case when there was an issue of jurisdiction, changed his position and noted that the defendant wanted to use the appeal to delay proceedings.
According to him, there have been previous Court of Appeal judgements on such matters.
He also granted the application for the withdrawal of the defendant’s counsel, Adeola Adedipe, SAN, from the case and referred the matter of misconduct to the LPDC to conduct investigation on possible infractions.
Consequently, he adjourned the case to September 25 for arraignment.
