AG MOELLER: PROSECUTION HAS NOT PROVED ITS CASE

Read previous post on case here.

It was not a good morning for the prosecution in the ongoing trial against AG Moeller and its Chairman, Kemi Adeloye. The matter came up today, the 18th of November 2015 before Hon. Justice Abang of the Federal High Court sitting in Lagos. The prosecution had closed its case on the 20th of April 2015 and upon an indication by the counsel to the defendants that they would be making an application of no case submission, the court had adjourned the case after ordering the counsel to the defendants to file and serve his written address in support of his no case submission within 7 days and the prosecution to file its response within 14 days. The counsel to the defendants filed and served on the prosecution, its application for the no case submission on the 27th of April 2015 and up till today the prosecution had yet to file a response. Rather, the prosecution on the 8th of May 2015 filed a motion for extension of time within which to file its response to the no case submission of the defendants. In the affidavit in support of the motion for extension of time, the prosecution stated that since the defendants had in their application asked the court to expunge the evidence of the 1st prosecution witness (PW1) and attributed several statements to the said PW1 which does not tally with the records in their possession, they applied to the registrar of the court seeking certified true copies of the proceedings that contain the evidence of PW1. They have however not been given copies of the proceedings and have thus not been able to respond to the application for no case submission. Counsel representing the defendants, Kunle Ogunba SAN opposing the application for extension of time today stated that the intent behind the application was to delay the proceedings with the resultant effect of ensuring that a criminal charge hang over the defendants without cause. He stated that the application was filed even before the time stipulated by the court for them to respond had expired. He stated further that the reason given for their failure to respond is untenable as the witness is their witness and they ought to have records of his evidence. He argued that by virtue of Section 364 of the Administration of Criminal Justice Act 2015, no party is entitled as of right to the proceedings of court and it is an indulgence granted by the court. It cannot therefore be a valid excuse for delaying proceedings. He further argued that the application for extension of time was not brought under any law and was not supported by a written address and thus incompetent. He further stated that the affidavit evidence supporting the application is speculative as the prosecution referred to the registrar whom they had approached for certified copies of the proceedings as Mr….. He urged the court to dismiss the application. Relying on points of law, the prosecutor argued that the registrar of court and the registry of the court are institutions and juristic persons. He also stated that the affidavit was not speculative as he attached his application for certified copies of the proceedings as an exhibit in the application. He argued that the need to obtain the proceedings of the court arose out of the additional prayer by the defence in the no case submission to expunge the evidence of their 1st prosecution witness.

In a bench ruling, the court dismissed the application holding that the conduct of the prosecution in filing the application is to delay proceedings. The court added that this is particularly borne out from the fact that the application for extension of time was filed even before the expiration of the time required to file their response. The court further found that there was no proper application for certified true copies of proceedings as the application attached as an exhibit did not have an endorsement of receipt or initialing by the deputy chief registrar or senior chief registrar of the court as is the practice with such applications. The court therefore called out the prosecutor for misleading the court. The court further stated that the proper step to be taken by the prosecutor is to depose to his own affidavit stating the evidence presented by PW1 and the court would compare the affidavits of both the prosecution and the defendants with his records in determining whose position is misleading. The Judge found that obtaining records of proceedings, which is an administrative issue, would not be allowed to delay proceedings.

Despite dismissing the prosecution’s application for extension of time, the court stated that he would not hear the no case submission today as he would not visit the sin of the counsel on the state and that he would give the state an opportunity to file a written address in opposition to the no case submission. The court therefore gave the prosecution 7 days to file a written address in opposition and 3 days for the defence to file a reply on points of law, if required, and adjourned the case for hearing of all pending applications.

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