Read previous post on case here.
Justice Rilwan Aikawa of the Federal High Court sitting in Lagos in a ruling delivered today dismissed the application filed on behalf of former Minister of Petroleum Resources, Mrs. Diezani Alison-Madueke seeking to be joined as a defendant in the money laundering criminal charge against Senior Advocate of Nigeria, Dele Belgore and former minister of National Planning, Prof. Abubakar Suleiman.
The Court describing the application as a misuse of court process took note of the depositions in the counter affidavit filed by the Economic and Financial Crimes Commission (EFCC) in opposition to the application wherein it was stated that Mrs. Alison-Madueke is facing criminal charges in the United Kingdom and has been granted bail and she has filed the application as a ploy to use the judicial system in Nigeria to frustrate the imminent trial in the United Kingdom.
Mrs. Alison-Madueke had in an application filed by Dr. Ikpeazu SAN asked the court to join her as the 3rd Defendant in the charge having regard to counts 1 to 4 of the charge which accused her of committing money laundering offences. (Read about the counts here.) She also asked for an order mandating her to appear in court on the next date to plead to the charge as well as an order mandating the Attorney General of the Federation (AGF) to facilitate her appearance in court at the next date in order for her to take her plea and defend the charge against her.
Dr. Ikpeazu in moving the application had argued that counts 1 to 4 of the charge indicted Mrs. Alison-Madueke of money laundering offences and it amounted to an infringement of her right to fair hearing for her not to be named as a defendant in the charge and be properly given an opportunity to properly defend the allegations levelled against her. He argued that the court was empowered under Section 216 (1) of the Administration of Criminal Justice Act (ACJA) 2015 to direct an amendment of the charge and that the right to apply for such an amendment was not restricted to the prosecution exclusively. He argued that Mrs. Alison-Madueke was a necessary party and ought to be included in the charge.
The 1st defendant, Mr. Belgore SAN through his lawyer, Mr. Sofunde SAN had opposed the application. In his arguments, Mr. Sofunde submitted that Mrs. Alison-Madueke was not a necessary party as the court did not require her presence to determine the guilt or otherwise of the defendants. He argued that her guilt was not up for determination in the current charge. He further argued that Section 216(1) of the ACJA does not envisage that any other person apart from the prosecution could apply to amend a charge and relied on the case of Abacha v. State. Mr. Sofunde also argued that it would not meet the justice of the case to join Mrs. Alison-Madueke at this time as it would mean that the case which is already part-heard would have to start all over again thereby further causing a delay to the defendants.
The 2nd defendant, Prof. Abubakar Suleiman had no reaction to the application and left it at the court’s discretion. The prosecutor, Mr. Oyedepo adopted the arguments of the 1st defendant and added that an application for joinder cannot be made in a criminal charge that is part-heard. He further argued that a prosecutor cannot be compelled to prosecute any person and exercises prosecutorial discretion on who to charge to court.
In his ruling, Justice Aikawa interpreting the provisions of Section 216(1) of the ACJA held that it cannot by any stretch of legal imagination be envisaged that an application for amendment of the charge can be brought by any person other than the person who instituted it. He held that the power to amend the charge lies exclusively with the prosecutor. Disagreeing with the submission that Mrs. Alison-Madueke was a necessary party, he held that the necessary parties to a criminal charge are the complainant and the named defendants. He stated that the mere mention of Mrs. Madueke in the counts does not make her a defendant. On whether her right to fair hearing would be breached, the court held that only a defendant in a trial can complain of infringement of his or her right to fair hearing. Thus, Mrs. Madueke, not being a defendant in the charge cannot complain of an infringement to her right to fair hearing.
He held that the discretion to prosecute a person or not lies with the Attorney General of the Federation and the court cannot compel him one way or the other in the exercise of his discretion. Finding the application unmeritorious, he dismissed it.
Thereafter, he delivered another ruling admitting an email and its attachment sought to be tendered by the prosecution which had been objected to on the grounds that it did not comply with the provisions of Section 84 of the Evidence Act. (Read about the arguments here). The email correspondence which is between one Ogbonna Madueke and Mr. Nnamdi Okonkwo, the managing director of Fidelity Bank Plc., lists the beneficiaries of the sum of $115,010,000 which Mrs. Madueke had deposited with Fidelity Bank. The court in its ruling found that the documents could be properly tendered by the witness, an investigating officer with EFCC who had earlier stated that he recovered them in the course of his investigations. He further held that the certificate tendered with the printed email complied with the provisions of section 84 of the Evidence Act. He thus admitted the documents.
After both rulings, the prosecution continued with the testimony of its second witness. Mr. Usman continuing his testimony stated that the two defendants were among the list of beneficiaries contained in the email sent to the MD of Fidelity Bank and were paid the sum of N450 million which they collected at the Ilorin branch of the bank in Kwara state. He further testified that when confronted, the defendants admitted collecting the money. He stated that the sums were collected in cash without going through a financial institution. He also testified that the 1st defendant after collecting his share made cash payments to several individuals. He paid the sum of N61 million to the representative of Kwara North, N102 million to the representative of Kwara central and the sum of N87 million to the representative of Kwara South. All these payments were made in cash and without going through a financial institution.
Under cross-examination by Mr. Sofunde, the witness admitted that he made a statement and a report of his investigations. Mr. Sofunde applied that the prosecution produce the witness statement of the witness and the report of his investigations.
The charge has been adjourned to the 13th and 14th of November 2017 for continuation of trial.