N10.9bn fraud: Okey Nwosu, others lose bid to stop trial

Okey Nwosu
Okey Nwosu

An Ikeja High Court on Thursday struck out two applications preventing the former Managing Director of the defunct FinBank Plc, Okey Nwosu, from facing criminal trial in a N10.9 billion fraud charge.

The Supreme Court had in a judgment on July 17, 2016 ordered Nwosu and three former directors of the bank to face trial before a Lagos High Court.

The three former directors are: Dayo Famoroti, Danjuma Ocholi and Agnes Ebubedike.

The apex court had allowed the appeal filed by the Federal Government and set aside the allegedly perverse judgment of the Lagos Court of Appeal.

The court in its leading judgment delivered by Justice Musa Dattijo Muhammed, held that the decision of the court delivered by Justice Lateefa Okunnu prevails.

The apex court had ordered that the case should be sent back to the Lagos State Chief Judge for Nwosu, Famoroti, Ocholi and Ebubedike’s expeditious trial.

The Lagos division of the Court of Appeal in its judgment said the Lagos High Court lacked jurisdiction to try the case and thereby freed the defendants, who were being prosecuted by the Economic and Financial Crimes Commission (EFCC) on a 26-count charge bordering on stealing of N10.9 billion.

At Thursday’s proceedings, counsel to Nwosu, Mr Anthony Idigbe (SAN), in the first application filed a written address dated Jan. 20 before the court.

Idigbe requested for a stay in proceedings which would enable them to approach the apex court for an interpretation of its decision.

Idigbe said:“My Lord, the facts of this case is simple. The Chief Justice of Nigeria directed the Chief Judge of Lagos that the matter should go on trial; the Chief Judge directed that the matter should go before Your Lordship.

“Our own interpretation of the decision of the Supreme Court is that the matter should go before another judge and start ‘de novo’ (start afresh).

“In our further affidavit, we showed that this is not an unusual case, the prosecution has refused to comply with the decision of the Supreme Court to start the matter ‘de novo’. Rather, they are fighting the decision.

“The prosecution argues that this is a matter of law and this court has no discretion by virtue of the EFCC Act.

“We humbly disagree, the issue of stay of proceedings is first an issue of exercise of discretion and second, a part of the inherent jurisdiction of a superior court.”

He added:“It is well established in jurisprudence that where a court exercises discretion, it cannot be bound by any further discretion of any court and the issue of stay of prosecution is an exercise of discretion.

“It is our humble submission that on the materials before the court, the Supreme Court should be allowed to exercise discretion in this matter.”

Counsel to Famoroti, Mr Seyi Sowemimo (SAN), told the court that he had filed a written address in support of the stay of proceedings by Idigbe.

“We are wholly in support of the application for stay of proceedings, I intend to adopt the written address in support of what the first defendant has put before the court.”

Opposing the application brought before the court by Idigbe and Sowemimo, counsel to the EFCC, Mr Rotimi Jacobs, said their applications were “unfair and not in the interest of justice.”

“In the decision of FRN V Okey Nwosu, the Supreme Court said in that case that ‘accordingly, this appeal is allowed and the perverse judgment of the Court of Appeal is set aside and the decision of the trial court is upheld.

“The fact that they want a particular judge when the Supreme Court said your decision prevails is totally uncalled for, the decision of your Lordship was not upturned by the Supreme Court.

“Inherent jurisdiction has been interpreted in the case of Fayemi v Akilu that inherent jurisdiction will not play any part where there is statutory power.

“We are saying that the application filed by the defence on Nov. 11 was not based on discretion, but on statutes.

“By your Lordship’s ruling on that day, the defendants never filed against it and to now file against the order of the Supreme Court is an abuse of court processes.

“I have looked at the exhibits in this case and i felt we are failing the administration of criminal justice.

“In view of all this, I urge your Lordship to refuse the application.”

Justice Okunnu, in her ruling said, “the prosecution closed its case three-and-a-half years ago, and in the three- and-a-half years there has been no trial in this case.

“To further delay this trial after a three and a half year hiatus is to act without the dictates of the constitution.

“I do not think there is merit in this application, it is therefore dismissed and the third defendant’s application for an order striking out the charge before him is hereby struck out.”

After the ruling was read, Idigbe in his second application urged the court to drop the charges brought against Nwosu based on a purported letter requesting same allegedly written by Mr Mohammed Adobe (SAN) a former Attorney General of the Federation.

“We bring an application brought under Section 239(1)(2) of the Administration of Criminal Justice Law (ACJL) seeking an order discharging the first defendant.

“This is based on the request by the Honourable Attorney-General.

“The powered of the prosecution under the EFCC Act is to give directions in the prosecution of the case, we believe that the duties of the EFCC is subject to the Attorney-General, who is the chief prosecutor with the EFCC being a Federal Government Agency.

“Our respectful submission is that, there is contradictions between the directions of your Lordship and the directions of the EFCC,” he said.

Idigbe also requested that the purported letter from Adoke which sought to stop the prosecution of Ocholi should also prevent Nwosu and Famoroti’s prosecution.

Jacobs, however objected to Idigbe’s request for Nwosu and Famoroti to be exonerated by the said letter.

“The purported clearance in the letter does not include the first and second defendant, it is only for the third defendant.

“In the law of Criminal investigations, the `prima facie’ cases of defendants are separate and distinct, it is wrong for the first and second defendants to rely on that letter.

“The certification of the letter is by one U. M Mohammed which is without a signature and receipt of payment contrary to Section 104 of the Evidence Act.

“In Section 174 of the Constitution, the power of the Attorney-General is limited to federal offences and the defendants are being prosecuted under the state laws and not federal laws.

“Under Section 201 of the Constitution, the Attorney-General cannot withdraw prosecution in respect of a state offence.”

Jacobs also said that the power to discontinue by that Attorney-General was to have been stated and filed in court and not by a letter addressed to the EFCC.

“None of these requirements has happened and that letter cannot qualify as a ‘nulli prosecution’ I urge your Lordship to discredit this application,” Jacob said.

Justice Okunnu in her ruling said, “I have considered both applications and the documents before the court.

“A court of law cannot act on the directions of one person given to another person, it will be wrong for the court to give an opinion on the basis of one person on behalf of two other persons.

“The letters given by the Attorney-General are also not certified within the provisions of law provided in Section 104 of the Evidence Act and I don’t agree with counsel on presumption of regularity.

“I find that the two applications lack merit and I therefore refuse them, they are inordinately dismissed, “Okunnu said.

Idigbe and Sowemimo after the second ruling, requested for more time before the next date of adjournment to subpoena witnesses and prepare for defence respectively.

Okunnu, however, refused their requests.

“The court observes that the defence have had sufficient time to prepare for trial.

“They had a three-month period for adequate preparation; the case is adjourned to Feb.7, 8, 9 and 15 as already scheduled, “she ruled.

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