Voids FHC CJ’s directive transferring case-file for fresh trial
By Ikechukwu Nnochiri – Abuja
The Federal High Court sitting in Abuja, on Monday, ordered the resumption of proceedings in the money laundering charge the Economic and Financial Crimes Commission, EFCC, entered against former Governor of Niger State, Dr. Babangida Aliyu.
The court, in a judgment that was delivered by Justice Inyang Ekwo, quashed an administrative directive that okayed the trial of the ex-governor which started in 2017, to start de-novo (fresh).
It held that former Chief Judge of the Court, Justice Abdul Abdul-Kafarati, acted in breach of section 98(2) of the Administration of Criminal Justice Act, AcJA, 2015, when he re-assigned the case-file to a new judge for a fresh trial, after EFCC had called 10 witnesses in the matter and tendered several exhibits in evidence.
Justice Ekwo noted that EFCC only had four pending witnesses to conclude its case before the matter was handed to a new trial Judge.
The erstwhile governor is facing an eight count money laundering charge alongside his former Chief of Staff and governorship candidate of the Peoples Democratic Party, PDP, in the state, Umar Gado Nasko.
The Defendants were accused of diverting ecological funds the Federal Government released to Niger State in 2014, to the tune of about N1.940billion.
Though they were firstly arraigned in Abuja, before Justice Nnamdi Dimgba, in 2017, however, following an application by the Defendants, the case was transferred to the Minna Division of the Federal High Minna.
Upon transfer of the case to Niger State, it was assigned to Justice Yellim Bogoro by the then CJ, following which the Defendants were arraigned afresh and released on bail on November 16, 2017.
However, midway into their trial, the CJ, in June 2019, ordered Justice Bogoro to hands-off the case.
The CJ subsequently transferred the case to Justice Aliyu Bappa for the trial to begin afresh, citing a petition that was brought to him by the EFCC.
Dissatisfied with the CJ’s decision, the former governor filed a suit to challenge it, insisting that the aim was to unnecessarily prolong his trial.
In the suit marked FHC/ABJ/CS/620/2020, which has the FHC CJ, the EFCC and the Attorney-General of the Federation, as 1st to 3rd Defendants, respectively, the ex-governor, urged the court to reverse rhe decision.
Meanwhile, in his judgement on the matter, Justice Ekwo agreed with the former governor to the effect that the CJ acted beyond his administrative powers.
Justice Ekwo held that the suit called for the judicial review of the action of the CJ in transferring a judicial proceeding mid-stream, from one Judge to another, after the Prosecution had called 10 witnesses.
“I have reviewed the facts, evidence and circumstances.
“Ordinarily, certiorari would not lie where the Chief Judge of a Court acts administratively in the routine transfer of cases pursuant to the Rules of Court.
“This case is not predicated on the administrative power of the Chief Judge under the Rules of this Court.
“This is a statutory matter whereby the provisions of the law, the power of the Chief Judge to transfer a case, is curtailed.
“Where power is curtailed by statute and It is exceeded, review of such act by certiorari becomes inevitable. It is my opinion that order certiorari must be made in this circumstance where evidence has clearly demonstrated that a quasi-judicial function of a Chief Judge has been exercised in excess of statutory authority, and I so hold.
“As it is, I find merit in the case of the Plaintiff and I enter judgment as follows:
“Declaration is hereby made that having regard to the provisions of Section 98(1) and (2) of the Administration of Criminal Justice Act 2015, the Honourable Chief Judge of the Federal High Court lacks the legal power to transfer or re-assign a criminal case from a Judge before whom witnesses have been taken, to another judge where the trial will commence de novo.
“A declaration is hereby made that having regards to the provision of Section 98(2) of the Administration of Criminal Justice Act, 2015, the purported transfer or re-assignment of the charge to Justice Bappa to commence de-novo, is ultra bored the powers of the Chief Judge and therefore null and void”, Justice Ekwo held.
He equally declared that the petition the EFCC submitted to the CJ through a letter dated February 21, 2019, “failed to meet the requirement of section 98(3) and 98(4) of the ACJA, 2015, as a basis for justifying the transfer of the criminal case with Charge No. FHC/ABJ/CR/71/2017, from Justice Yellim Bogoro to Aliyu Bappa J”.
The court made an order directing the CJ to recall the case-file from Justice Bappa and to remit the same to Justice Bogoro to continue and conclude the case.
As well as, “an order directing Justice Bogoro to complete the trial, having heard 10 prosecution witnesses”.
Justice Bappa had on May 23, 2019, issued a bench warrant for the arrest of the former governor and his co-Defendant, after they failed to appear before him for trial.
The court further revoked the bail that was previously granted to them by Justice Bogoro.