COURT HEARS FANI-KAYODE’S APPLICATION ASKING THE JUDGE TO RECUSE HIMSELF

Read previous post on case here.

The applications filed by the Mr. Femi Fani-Kayode, Nenadi Esther and the two other defendants in the charge pending before Justice Hassan of the Lagos Division of the Federal High Court were today heard by the Court in arguments that spanned over four hours.

Nenadi Esther first argued her application through her lawyer, Mr. A.J. Owonikoko SAN seeking a transfer of the charge to the Abuja Division of the Court and a severance of the charge from Mr. Fani-Kayode. Relying on the case of Roda v. FRN, Mr. Owonikoko argued that the issue of venue of a criminal trial is jurisdictional in nature and a charge should be tried in the division where the facts leading up to the offence occurred. He argued that in this case everything alleged by the prosecution against the 1st Defendant Ms. Nenadi occurred in Abuja and there was no reason for the institution of the charge in the Lagos Division of the court. He stated that the sole pedestal upon which the prosecution has contested the application for a transfer is that the exhibits to be tendered at the trial are now located in Lagos and argued that the venue of a criminal trial is determined by the nature of the offence and the place where it was committed and not the manner in which the prosecution decides to investigate the offence or preserve the exhibits. Placing heavy reliance on the case of Roda v FRN, he argued that a conviction was upturned because the trial was conducted in the wrong division of the court. He thus stated that the answer of the prosecution in its response to the application is therefore not a good answer to the case they have laid down that the Lagos Division of the court does not have the requisite jurisdiction to entertain the charge.

Arguing further, he stated that the court also has a discretion to look at the forum convenient to the parties when it is brought to the attention of the court. He highlighted three factors which the court should consider in finding that the Lagos Division of the court was inconvenient as – i. all the witnesses are not in Lagos; ii. The medical condition of the 1st Defendant and iii. The expenses and hardship occasioned by the 1st Defendant who is not based in Lagos and has to be present every time the charge comes up for hearing especially since her accounts have been frozen by the Commission. He relied on Ibori’s case on the issue of convenience of forum. He also argued that contrary to the position of the prosecution in his response that the application ought to have been filed before the commencement of trial in the suit, the application can be taken even of trial has commenced and relied on the provisions of Section 386 (a) and (b) of the Administration of Criminal Justice Act (ACJA) 2015. He argued that a defendant may raise the issue of convenience of forum at anytime he finds a reason to satisfy the court of the inconvenience. He argued that the test is whether the ends of justice would be met if the case is transferred to the division where the offence was allegedly committed. He stated that the ends of justice would be met if the charge is transferred to the Abuja division of the court and that the fact that arraignment has taken place and trial has commenced was not an impediment to the exercise of the powers of the court under Section 386 of the ACJA to order a transfer of the charge to the appropriate division of the court.

On the application that the charges against her be severed from that of the 2nd Defendant, Mr. Fani-Kayode, Mr. Owonikoko SAN argued that out of the 17 counts before the court, there is only one count of conspiracy between the 1st and 2nd Defendants. He argued that by the nature of the charge of conspiracy, the defendants could be tried separately without any negative impact on any conviction. He argued that there are about 14 counts against the 2nd Defendant that has nothing to do with the 1st Defendant and that to proceed with a joint trial would delay the trial and subject the 1st Defendant to further undue hardship and expense. He further argued that an application for severance of the charge can only be refused where it is absolutely necessary that the trial must be joint.

Opposing the 1st Defendant’s application, Mr. Rotimi Oyedepo argued that the grant of the application is one that requires the court exercising its discretion. He argued that Section 98 (1) and (2) of the ACJA gives the Chief Judge of the Federal High Court the power to transfer a case as well as its prohibitions such as when the prosecution has called witnesses. He argued that once the prosecution has called witnesses as in this case, the power cannot be exercised. He further argued that a critical look at Section 386 of the ACJA relied upon by Mr. Owonikoko shows that the prosecution can file the charge in the Lagos division of the court because the Money Laundering Prohibition Act under which the offences were brought prohibits money laundering in Nigeria as one division. Thus the prosecution can institute a charge on money laundering anywhere in Nigeria and in any of the divisions of the Federal High Court. He argued further that Section 386(a) of the ACJA permits a charge to be tried in a division other than where the offence was committed and that where a defendant objects to the venue of the trial, he must provide reasonable evidence for the court to consider in transferring the charge. He therefore stated that the question was whether the objection to venue of the 1st defendant was reasonable in the circumstances of the case. In answering the question, he stated that the plea of the 1st defendant was taken on the 28th of June 2016 and that with the taking of the plea, the 1st Defendant is deemed to have put herself up for trial before the Lagos Division of the court. He argued that having submitted to the jurisdiction of the court and allowing the prosecution to call its first witness, it would be extremely prejudicial to the prosecution if the charge is transferred. He stated by the provisions of Section 386 (b) of the ACJA, both the prosecutor and the defendant may apply to the court for transfer of the charge but that for such an application to succeed, both parties must agree. He further argued that the case of Roda v FRN relied upon was not applicable, as the case did not interpret the provisions of Section 386 of the ACJA, which gives the Court the discretion to grant or refuse the application and further relied on the provisions of Section 386(c) and argued that whatever decision the Court gave on the issue is final and not appealable. On the application for severance of the charge, Mr. Oyedepo argued that the evidence the prosecution intends to rely upon in proving the counts against the 1st Defendant is applicable to and affects all the Defendants. He stated that the same witnesses and documentary evidence will be used and duplicating the evidence for severed charges will cause delay and occasion hardship to the prosecution. He urged the court to refuse the application.

Mr. Owonikoko SAN in his reply on points of law argued that Section 98 of the ACJA that Mr. Oyedepo referred to deals with administrative transfer by the Chief Judge and is not applicable to an application filed by a defendant in a charge raising the issue of forum convenience. He argued that it is Section 386 of the ACJA that deals with the adjudicatory transfer of charge, which will be triggered by an application by either of the parties or the court on its own motion. He also argued that both parties must not agree before the application can be granted as postulated by Mr. Oyedepo and stated that the provisions of Section 386(b) of the ACJA envisages a disjunctive liberty of either the prosecutor or defendant to apply by the use of the word ‘or.’ On the interpretation given to the provisions of Section 386(c) of the ACJA by Mr. Oyedepo, Mr. Owonikoko SAN argued that only an order of transfer made under the section cannot be appealed against, as the section does not refer to a refusal of a court to transfer the charge. Finally, Mr. Owonikoko SAN argued that the location of the prosecution’s witnesses was not a consideration in the determination of the constitutional guarantee of the defendant to a fair hearing. It is not the rights of the witnesses that are to be considered but of the defendants.

After the application for the 1st defendant was argued, the court moved to the hearing of the application filed on bahalf of Mr. Femi Fani-Kayode. Mr. Quakers SAN moving the application which is challenging the jurisdiction of the trial judge to hear the charge and seeking a transfer of the charge to Abuja argued that the court as presently constituted does not guarantee that the 2nd Defendant would get a fair hearing. He relied on a charge against Mr. Fani-Kayode which was signed by the Judge while still the head of legal at the EFCC and urged the court t recuse himself from hearing the charge against the 2nd Defendant having worked in EFCC and signed a charge against him from which he was ultimately discharged and acquitted by the court. Mr. Quakers SAN argued that the issue was not bias in itself but the likelihood of bias and relied on the case of Aguomba v. Uwais [2007] All FWLR Part 346 page 440. He argued that in deciding this application, the court is not to pay attention to the mind of the Judge who sits in judicial capacity but the inference that would be in the mind of a reasonable man. He argued that once the issue of bias is raised, the honorable thing was for the court to recuse itself and relied on the case of Yakubu v The State. He also argued that the venue was not convenient to the 2nd Defendant to stand trial as the facts leading up to the charge occurred in Abuja. He argued that from a community reading of the provisions of Sections 93 and 386 of the ACJA as well as Section 45(a) of the Federal High Court Act, the appropriate forum for the trial is Abuja. Finally, he argued that the response to the application of the 2nd Defendant filed by Mr. Oyedepo was improper as it did not comply with the provisions of Order 10 Rules 1 and 2 of the Rules of Professional Conduct (RPC) and urged the court to discountenance same.

Mr. Oyedepo in his response argued that his receipt for payment of the NBA stamp was attached to the application and argued that it substantially complied with the RPC. On the application for the Judge to recuse himself, Mr. Oyedepo argued that the application was intends to delay the expeditious hearing of the charge. He relied on the provisions of Section 19(2)(c) of the EFCC Establishment Act that empowers the court to adopt all legal measures necessary to prevent undue delay in respect of matters brought by the Commission. He stated that the charge relied upon by Mr. Fani-Kayode which forms the basis upon which he is applying that the Judge recuse himself was firmed out by the Commission to Mr. Festus Keyamo who prepared the charges and prosecuted same before Justice Ajumogobia. He added that the Judge at no point participated in the proceedings but merely signed the charge in furtherance of a policy of the Commission that the head of legal sign all the charges emanating from the Commission. He further argued that the 2nd Defendant, Mr. Fani-Kayode had enjoyed several discretionary favors in the course of the proceedings including being granted bail despite the strong opposition of the Commission to the grant of the bail application. He also stated that the Judge scolded the prosecution when Mr. Fani-Kayode was re-arrested in respect of another offence. He therefore argued that no reasonable man watching the proceedings of the court would conclude that the 2nd defendant would not get a fair trial having enjoyed the court’s discretionary powers. He further argued that the charge relied upon by Mr. Fani-Kayode was in existence when he submitted himself to the jurisdiction of the court and that no new conduct of the Judge in the course of proceedings demonstrating bias or exhibiting likelihood of bias was placed before the court. He argued that the application was intended to whip up sentiments or paint the court in a bad light. He further argued that in determining the application, the Judge is not to concern himself with the feelings of the defendant as the defendant has a constitutional right to choose his lawyers but not the Judge who would try him. On the application to transfer the charge, he relied on the earlier submissions he made in respect of the similar application of the 1st defendant but however added that the fact that the 2nd defendant was facing another criminal charge in Abuja was not good enough reason to transfer the charge as where equities are equal, the first in time prevails.

Mr. Quakers SAN in his reply on points of law argued that the Rules of Professional Conduct (RPC) does not envisage evidence of payment of receipt but a stamp or seal of the NBA as the NBA must ascertain and verify the legal practitioner for the time frame within which the stamp is issued. He therefore argued that the processes filed by Mr. Oyedepo in response to his application were improperly filed and the receipt of payment did not cure the defect. He relied on the case of Adewole & PDP v. Adeola & Ors. [2015] LPELR – 25972 where the Court of Appeal rejected a receipt used.

Mr. Clement Onwewunor who represented the 3rd and 4th Defendants, Mr. Danjuma Yusuf and Joint Trust Dimensions Ltd also argued the application of the 3rd and 4th Defendants seeking to transfer the charge to the Abuja division of the court and for a severance of the charge. He argued that the position of the prosecution that once an offence is brought under the Money Laundering Prohibition Act, it can be tried anywhere in Nigeria is not the law as there is a difference between the substantive law and the procedural law that govern trials. He argued that while the Money Laundering Prohibition Act was the substantive law, the Administration of Criminal Justice Act was the procedural law.

The court has adjourned ruling in respect of the three applications to the 16th of March 2017.

 

 

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