IN THE
FEDERAL HIGH COURT OF NIGERIA
IN THE
LAGOS JUDICIAL DIVISION
HOLDEN
AT LAGOS
CHARGE
NO: FHC/L/251C/2016
BETWEEN
FEDERAL REPUBLIC OF
NIGERIA COMPLAINANT/
RESPONDENT
AND
1.
NENADI
ESTHIS USMAN DEFENDANT/RESPONDENT
2.
FEMI
FANI KAYODE DEFENDANT/APPLICANT
3.
DANJUMAN
YUSUF DEFENDANT/RESPONDENT
4.
JOINTRUST
DIMENSIONS NIGERIA LTD DEFENDANT/ RESPONDENT
MOTION
ON NOTICE
BROUGHT PURSUANT TO
SECTION 6 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS
AMENDED); SECTION 45(a) OF THE FEDERAL HIGH COURT ACT CAP. F12 LAWS OF THE
FEDERATION OF NIGERIA, 2004; SECTIONS 93(2), 386, 492(1) AND 209 OF THE
ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015 AND UNDER THE INHISENT
JURISDICTION OF THIS HONOURABLE COURT.
TAKE NOTICE that
this Honourable Court shall be moved on the ________day of __________________2016
at the hour of 9 O’clock in the forenoon or so soon thereafter as Counsel may
be heard on behalf of the1st Defendant/Applicant praying to this
Honourable Court for the following orders:
1.
AN ORDER
OF THIS HONOURABLE COURT TRANSFERING the charges against
the 2nd Defendant/Applicant for the purpose of trying the 2nd Defendant/Applicant
from this Honourable Court as presently constituted by His Lordship Justice
M.S. HASSAN of the Federal High Court 10, Lagos Judicial Division to the Abuja
Judicial Division of this Honourable Court.
2.
AN ORDER
OF THIS HONOURABLE COURT directing the Registrar of this court to
return the file in Charge No. FHC/L/251C/2016 FEDERAL REPUBLIC OF NIGERIA V NNENADI
ESTHIS USAMN & 3 ORS. the Honourable Chief Judge of the Federal High Court
of the Federation for reassignment to another judge of the Federal High Court,
Abuja Division, in consequence of prayers 1 above
3.
AND SUCH
further
order or orders this Honourable Court may deem fit to grant in the
circumstance.
AND TAKE FURTHIS
NOTICE
that the grounds on which this application is brought are:
1.
The Applicant was charged to court on a 47 count criminal charge in
Charge No. FHC/L/523C/2008 Federal Republic of Nigeria V. Femi Fani
Kayode at the Federal High Court Lagos Judicial division sometime in 2008.
2.
The
said criminal charge was filed
and prosecuted on behalf of the Attorney General of the Federation by
the Economic and Financial Crimes Commission (EFCC);
3.
The charges bordered mainly on the
activities of the Applicant as the immediate Minister of Aviation of the
Federal Republic of Nigeria;
4.
The said criminal charge was prepared by
Mr. M.S Hassan ( as he then was) of the Economic and Financial Crimes
Commission (EFCC) after he was convinced
by the materials placed before him by the Commission that the Applicant must
have abused his office as the then Minister of Aviation of the Federal Republic
of Nigeria;
5.
The then Mr. M.S Hassan prepared a 47 count
charges and signed same against the Applicant in Charge No. FHC/L/523/2008 on
the 22nd December, 2008;
6.
As a
result of the criminal charge , the Applicant was prosecuted by the Economic
and Financial Crimes Commission (EFCC) where the then MR. M.S. Hassan was an
active player for about 7 years;
7.
The Applicant was only discharged and
acquitted by the Federal High Court on the 1st July 2015;
8.
The Applicant has now been charged by the same Economic and Financial Crimes
Commission (EFCC) in the present criminal charge before the then Mr. M.S Hassan
(as he then was) who is now a Judge of this Honourable Court.
9.
The 1999 Constitution of the Federal
Republic of Nigeria and the Administration of Criminal Justice Act 2015
contemplate the trial of every accused person including the Applicant before an
independent and impartial court.
10.
The fact that His Lordship, M.S. HASSAN
presiding over this case previously superintended a criminal charged against
the Applicant as an officer /Senior Counsel of the EFCC creates likelihood of
bias.
11.
It will
be prejudicial to the 2nd Defendant/Applicant and a breach of his right to fair
hearing if the Hon. Justice M.S. Hassan hears and determines or continues to hear and determine this
current charge no. FHC/L/251C/2016, His lordship having previously prosecuted
the Applicant.
12.
The Applicant is worried and terrified that
this court as presently constituted may not fairly hear his case.
13.
It is in the interest of justice that the
reliefs sought in this application is granted by the Hon. Justice M.S. Hassan recusing himself from further trial of Charge
No. FHC/L/251C/2016.
14.
The transactions leading to the alleged
offence all occurred in Abuja while the Defendant/Applicant was the Director of
Media and Publicity of the Goodluck Jonathan Presidential Campaign Organisation
(PCO) with its office in Abuja outside the Lagos Division of this Honourable
Court.
15.
The Applicant lives in Abuja and transacted
all the businesses of the PCO that led to this criminal charge in Abuja.
16.
All the Defendants in this matter live and
work outside Lagos Jurisdiction of this Court.
17.
All the proposed witnesses of the Applicant
including majority of the Prosecution witnesses and branches of financial
institutions involved in this matter all reside and conduct their businesses in
Abuja outside the Lagos Division of this Honourable Court.
18.
The 2nd Defendant/Applicant is presently
standing trial in a sister case in Abuja in Charge No. FHC/ABJ/CR/140/2016 FEDERAL REPUBLIC OF NIGERIA V. CHIEF
FEMI FANI KAYODE at the Federal High Court, Abuja Judicial divisions of
this Honourable Court.
19.
Section 93 (1) and (2) of the
Administration of Criminal Justice Act, 2015 a criminal mandatorily require
that charges shall be filed and tried in the division whise the alleged offence
was committed.
20. The
Honourable Court is empowered under Section 386(a) and 492(1) of the
Administration of Criminal Justice Act, 2015 and under its inhisent powers transfer
a criminal charge involving different defendants to anothis judicial division whenever
the interest of justice will be met if it so does.
Dated this 16th day June, 2017
_____________________________
AHMED
RAJI, SAN, FCIARB. (UK)
NORRIS
QUAKERS SAN
Wale Balogun, Esq., BL, LLM, MBA
Adeola Adedipe, Esq.
(Counsel to the 2nd
Defendant/Applicant)
C/o Ahmed Raji & Co
No. 10, Santana Close,
Off Fandriana Close,
Off Malakal Drive,
Off Oda Crescent,
Off Dar-Es-Salam Street,
Off Aminu Kano Crescent
Wuse II,
Abuja
ON NOTICE TO:
1.
The Complainant/Respondent
Federal Republic of Nigeria,
C/O Its Counsel,
RotimiOyedepoIseoluwa, Esq.
Economic and Financial Crimes Commission (EFCC),
No. 15A, Awolowo Road,
Ikoyi, Lagos.
2.
The 1st Defendant/Respondent
C/o of His
Counsel
Ferdinand Orbih , SAN
A.J. Owonikoko, SAN
SYNERGY ATTORNIES
12,
OBAHORWEDE STREET,
ATLANTIC
VIEW ESTATE
OFF
ALPHA BEACH ROAD,
LEKKI
LAGOS.
01-2950788
3.
The 3rd
& 4th Defendants/Respondents
C/o of
their Counsel
S.I. AMEH (SAN) FCIArb.
Clement
Onwuenmunor Esq.
PP. S.I.AMEH (SAN) & CO.
(JUBILEE
CHAMBERS)
21
Onisha Crescent,
Off
Gimbiya Street,
Area 11,
Garki, Abuja.
OR
Clement Onwuenwunor & Co.
1
Faramobi Ajike Street,
Anthony
Village
Lagos.
08023162173.
IN THE
FEDERAL HIGH COURT OF NIGERIA
IN THE
LAGOS JUDICIAL DIVISION
HOLDEN
AT LAGOS
CHARGE
NO: FHC/L/251C/2016
BETWEEN
FEDERAL REPUBLIC OF
NIGERIA COMPLAINANT/
RESPONDENT
AND
1.
NENADI
ESTHIS USMAN DEFENDANT/RESPONDENT
2.
FEMI
FANI KAYODE DEFENDANT/APPLICANT
3.
DANJUMAN
YUSUF DEFENDANT/RESPONDENT
4.
JOINTRUST
DIMENSIONS NIGERIA LTD DEFENDANT/
RESPONDENT
AFFIDAVIT
IN SUPPORT
I,
WALE BALOGUN Male, Christian,
Nigerian and legal practitioner of Ahmed Raji & Co. No. 10, Santana
Close, Off Fandriana Close, Off Malakal Drive, Off Oda Crescent, Off
Dar-Es-Salam Street, Off Aminu Kano Crescent
Wuse II, Abuja, doth hereby
make oath and state as follows that:
1.
I am a legal practitioner , one of the team
of firms handling the defence of the 2nd Defendant/Applicant in this charge and
by virtue aforesaid, I am conversant with the facts of this charge.
2.
I have the authority of the 2nd Defendant/Applicant and the consent of my principal
to depose to facts his herein.
3.
The facts I depose are information made
available to me by the Defendant/Applicant on 16th January 2017 about 3pm in at
No. 50/52 Broad Street, Bookshop House CMS, fifth Floor, Jireh and Grey
Attorneys' office , Lagos and I which information I verily to be true and
correct.
4.
That he is a former Minister of Aviation of the Federal Republic
of Nigeria in 2006;
5.
That upon conclusion of his tenure as the
Minister of Aviation of Federal Republic of Nigeria , the Economic and
Financial Crimes Commission (EFCC) purportedly investigated him for sundry
matter that culminated in criminal
charge No. FHC/L/523C/2008.
6.
That His Lordship Justice M.S Hassan,
presiding in the present matter was the Economic and Financial Crimes
Commission lead counsel that reviewed his case and concluded that he should be
charged to court for criminal prosecution;
7.
That upon His Lordship as the then EFCC
Senior Counsel's conviction that a prima facie criminal case has been
established against him, he prepared , drafted and filed the Criminal charge
No. FHC/L/523C/2008 Federal Republic of
Nigeria V. Femi Fani Kayode against him;
8.
That it was His Lordship that signed the
said Charge against him; Now shown to me and marked FFK 1 is a certified
true copy of the Charge which was personally signed by His Lordship M.S.
Hassan.
9.
That he was subsequently arraigned before this
Honourable Court, Lagos Judicial Division for the 47 counts criminal charge personally signed
by His Lordship M.S. Hassan as a senior prosecuting
counsel for the Economic and Financial
Crimes Commission (EFCC) in 2008;
21.
That the charges bordered mainly on his activities
as Minister of Aviation of the Federal Republic of Nigeria;
22.
That in the opinion of His Lordship M.S.
Hassan, as the EFCC Senior Counsel he must have abused his office as the
Minister of Aviation of the Federal Republic of Nigeria.
23.
That as a result of the criminal charge ,
he was prosecuted by the Economic and Financial Crimes Commission (EFCC) for
about 7 years before he was finally discharged and acquitted by this Honourable
;
24. That
this Honourable court struck out 45 of the 47 counts and only two counts went
for trial of which he was subsequently discharged and acquitted of.
25.
That he feels that His Lordship was
embarrassed by the outcome of the criminal charge;
26. The
Applicant is worried and terrified that this court as presently constituted may
not fairly hear his case.
27.
That he feels that His Lordship might not give
him fair hearing as a result of the above incident;
28. That he
feels that His Lordship might bias against him if he continues to preside over
this case and this incident has also raised the likelihood of bias on the part
of His Lordship against him to the mind
of a reasonable man who might have heard or seen the scenario above.
29. That he
feels from the above scenario, the independence and impartiality of His
Lordship might be in reasonable doubt.
30. I know
from my review of the totality of the present case including the proof of
charges that all the transactions leading to the alleged offence all occurred
in Abuja while the Defendant/Applicant was the Director of Media and Publicity
of the Goodluck Jonathan Presidential Campaign Organisation (PCO) with its
office in Abuja outside the Lagos Division of this Honourable Court.
31.
I know that the Applicant lives in Abuja
and transacted all the businesses of the PCO that led to this criminal charge
in Abuja as shown by the proof of evidence .
32.
I know that all the Defendants in this
matter live and work outside Lagos Jurisdiction of this Court from the Proof of
Evidence.
33.
I know all the proposed witnesses of the
Applicant including majority of the Prosecution witnesses and branches of
financial institutions involved in this matter all reside and conduct their
businesses in Abuja outside the Lagos Division of this Honourable Court.
34. I know
that the 2nd Defendant/Applicant is presently standing trial in a
sister case in Abuja in Charge No.
FHC/ABJ/CR/140/2016 FEDERAL REPUBLIC OF NIGERIA V. CHIEF FEMI FANI KAYODE
at the Federal High Court, Abuja Judicial divisions of this Honourable Court.
35.
I know that the more convenient forum for
the interest of justice is the Abuja Judicial Division.
36. I know
as a legal practitioner that charges are mandatorily required to be filed and
tried in the division where the alleged offence was committed.
37.
I know as a legal practitioner that this Honourable
Court is empowered to transfer a criminal charge involving different defendants
to another judicial division whenever the interest of justice will be met if it
so does.
38. I know
that the 2nd Defendant/Applicant was arraigned
in this Honourable Court on alleged money laundering and conspiracy and he pleaded
not guilty to all the counts.
39. Upon his
arraignment, the 2dn Defendant/Applicant received a bundle of the Proof of
Evidence from the Complainant/Respondent containing documents it intends to use
against him and the other Defendants at trial which he thoroughly studied along
with his lawyers.
40. From the
bundle of documents handed over to him constituting the Proof of Evidence, all
the transactions made through his bank account and that of the 4th
Defendant/Respondent including receipts in the account and disbursements through
the duration of his tenure as the Director Media and Publicity of the Goodluck
Jonathan Presidential Campaign Organisation, the period which Complainant/Respondent
alleged constitute the alleged offences all occurred in Abuja, Federal Capital
Territory.
41.
That all the alleged financial transaction
and both in cash and banking transactions on which transactions the
Complainant/Respondent alleges constitute an offence was operated mostly from the
Abuja Branch of the bank.
42. As a
result of the above facts, all the witnesses the 2nd Defendant/Applicant intends
to call for his defence including relevant staff of the Banks and party officials and media houses who monies
were disbursed to , to carry out publicity and media campaign on the alleged
laundered funds when he was the Director Media and Publicity reside in Abuja.
43. I know
that the 2nd Defendant/Applicant is aware that all prosecution witnesses
including representatives of banks that have been listed to give evidence for
the prosecution as disclosed on the proof of evidence including some staff of
the Economic and Financial Crimes Commission (EFCC) are in Abuja where the alleged offence
occurred.
44. That the
account of the Applicant and that of his wife have been frozen by the EFCC
prior to this charge which has made it increasingly difficult for him to finance
his transportation, welfare, hotel accommodation and other logistics while in
Lagos for his trial in this Honourable Court.
45. That the
2nd Defendant/Applicant is very apprehensive that when he is called upon to enter
his defence, he may not be able to source funds to mobilise defence witnesses to
Lagos in terms of paying for their flight tickets, hotel accommodation for the
duration of their stay, feeding and other logistics associated with their stay
in Lagos for their period of their testimony.
46. That he is
equally apprehensive that the witnesses he intends to call may refuse to
testify on his behalf due to the inconvenience of coming to Lagos and issuance
of a summons to compel their attendance could be detrimental to his defence.
47. That the
2nd Defendant/Applicant desires an expeditious trial and conclusion of this
charge to enable him know his fate.
48. I know
as a legal practitioner that a criminal charge is filed and tried in the
locality where the offence alleged occurred or was committed.
49. I know
as a legal practitioner that In a situation where a criminal charge was
improperly filed at a location other than the location the alleged offence
occurred, the court trying the charge has a duty upon an application by any of
the parties or on its own motion to order transfer the charge to the appropriate
Division.
50. I know
as a legal practitioner that the Complainant/Respondent apparently did not
advert to the territorial jurisdiction of this honourable court in filing the present
charge in a wrong division without giving thought to the unbearable toll it
will take on 2nd Defendant/Applicant in
terms of logistics financial constraint he has to endure in prosecuting his defence whereas all his
account and that of his wife have been frozen to abide this trial.
51.
I know
as a legal practitioner that the 2nd Defendant/Applicant’s inability to
mobilise defence witnesses to Lagos to testify on his behalf due to financial
constraints impacts on his guaranteed constitutional right of fair trial.
52.
I know that the EFCC which investigated and
prosecutes this charge on behalf of the government of the Federation has its
headquarters in Abuja, the Federal Capital Territory and is regularly voted
funds for its operations by the government of the Federation and International
Donor agencies.
53.
The trial of this charge in Lagos will
prejudice the 2nd Defendant/Applicant
and deny him opportunity to fair trial.
54. Other
parties to this charge particularly, the Complainant/Respondent will not be
prejudiced if this application is granted.
55.
I am aware that all the other Defendant are
in agreement with this application.
56. I make
this affidavit in good faith and conscientiously believing it to be true,
correct and in accordance with the Oaths Act.
……………………………
DEPONENT
Sworn
to at the Federal High Court Registry, Lagos
This
……. day of January, 2017.
BEFORE
ME
..........................................
COMMISSIONER
FOR OATHS
IN THE
FEDERAL HIGH COURT OF NIGERIA
IN THE
LAGOS JUDICIAL DIVISION
HOLDEN
AT LAGOS
CHARGE
NO: FHC/L/251C/2016
BETWEEN
FEDERAL REPUBLIC OF
NIGERIA COMPLAINANT/
RESPONDENT
AND
1.
NENADI
ESTHER USMAN DEFENDANT/RESPONDENT
2.
FEMI
FANI KAYODE DEFENDANT/APPLICANT
3.
DANJUMAN
YUSUF DEFENDANT/RESPONDENT
4.
JOINTRUST
DIMENSIONS NIGERIA LTD DEFENDANT/
RESPONDENT
WRITTEN
ADDRESS
1.00 INTRODUCTION:
1.01
The
Applicant is presently standing trial as the 2nd Defendant in this matter. He
has taken his plea and pleaded not guilty to all the counts. Prior to the
filing of the charge, His Lordship, Justice M.S Hassan while serving as a
Senior Counsel in the employment of the Economic and Financial Crimes
Commission( EFCC) sometime in 2008 supervised the charging of the Applicant in
a 47 count charge in Charge No. FHC/L/523C/2008 Federal Republic of Nigeria V.
Femi Fani Kayode. He personally prepared , drafted and signed the said charge,
in which the Applicant stood trial for over seven (7) years before he was
subsequently discharged and acquitted.
1.02
The Applicant is currently facing another
criminal trial before Justice M.S Hassan who was his prosecutor in the previous
trial. The Applicant is apprehensive
that he might not receive fair hearing from Justice M. S Hassan whom he feels
might have been embarrassed in view of the way 45 of the 47 counts against him
as prepared by His Lordship were struck out. The only two counts that survived
, the Applicant was discharged and acquitted.
1.03
Secondly, a comprehensive examination of the
current charge has revealed that virtually all the transactions that led to the
filing of this charge happened in Abuja.
1.04
The
Applicant has brought this application to request His Lordship to return the
case file of this matter to the Hon. the Chief Judge of the Federal High Court
for subsequent re assignment to another Judge in the Abuja Jurisdiction of this
Court. In support of this application, the Applicant have a 56 paragraph
affidavit and in compliance with Rules of this court, also filed a written
address seeking Your Lordship's Order to grant all the prayers on the face of
the Application.
2.00
ISSUES
FOR DETERMINATION :
1.
WHETHER THE FACTS
ABOVE DISCLOSE APPARENT BIAS OR A REAL LIKELIHOOD OF BIAS BY THE HON. JUSTICE M.S
HASSAN TOWARDS THE PERSON OF THE APPLICANT WHO IS STANDING TRIAL IN THE PENDING
CRIMINAL MATTER BEFORE THIS HONOURABLE COURT?
2.
WHETHER THIS IS A
PROPER CASE TO TRANSFER THIS MATTER TO
THE ABUJA DIVISION OF THIS HONOURABLE COURT IN THE MANNER PRAYED FOR BY2ND
DEFENDANT/APPLICANT
ARGUMENT OF ISSUE
ONE:
WHETHER THE FACTS
ABOVE DISCLOSE APPARENT BIAS OR A REAL LIKLIHOOD OF BIAS BY THE HON. JUSTICE M.S
HASSAN TOWARDS THE PERSON OF THE APPLICANT WHO IS STANDING TRIAL IN THE PENDING
CRIMINAL MATTER BEFORE THIS HONOURABLE COURT?
2.01
We submit with respect, the sacredness of
the court which is earmarked by its independence and impartiality is a major
reason why litigants and indeed the State submit to the courts’ powers and
jurisdiction of adjudication over disputes between parties. Hence, the
structuring of the Judiciary as an independent arm of Government in order to
ensure that its sacredness and impartiality is not put in doubt. However, where situation arises that the sanctity of
the court proceedings is to the mind of a reasonable man in doubt, then such a
court or proceedings must be moved to another Judex where the independence and
impartiality of the proceedings can be guaranteed.
2.02
My lord, a court room under the 1999
Constitution is an avenue where all the
Parties whose legal rights are to be ventilated, investigated, asserted and or vindicated have equal
rights. It is therefore imperative to
ensure at all times that the judex
must not only be above board like the Ceaser's
wife but must also be seen as such. Consequently, no impediment, real or imagined in form of fear
or apprehension must be placed
before parties. This is in line with the principle that in all cases, justice is not only done but also seen to
have been done. This is consistent with
the principle of impartiality of courts.
See Section 36 (1) of the 1999
Constitution, which provides as follows;
“In the determination of his civil rights
and obligations, including any question or determination by or against any
government or authority, a person shall be entitled to a fair hearing within a
reasonable time by a court or other tribunal established by law and constituted
in such manner as to secure its independence and impartiality.”
2.03
We
submit with respect, that from the narration as robustly stated in paragraph
4 -29 of the Affidavit in support,
leaves no reasonable doubt in the mind of
the 2nd Defendant/Applicant and indeed any reasonable
man that Judex’s independence and impartiality will be in doubt. That Your Lordship as a very Senior
Counsel in the employment of the
Economic and Financial Crimes Commission (EFCC) personally signed the criminal charge No. FHC/L/523C/2008 against the Applicant on behalf of the present Prosecutor.
That Your Learned Brother struck out 45 out of the 47 counts that
Your Lordship prepared against the
Applicant as bad and the remaining two count which went on trial could also not secure conviction against the Applicant.
The Applicant was subsequently
discharged and acquitted by Your Learned
Brother. This indeed might make Your Lordship to be unhappy that the Applicant was set free. That Your Lordship with humility is also now the presiding Judge
over the same Applicant and the
Applicant has expressed his apprehension!
2.04
We
submit with respect that this application is not to question Your
Lordship’s integrity but in the sole interest of the 2nd Defendant/Applicant whose right to justice
stands the risk of prejudice over
Your Lordship’s previous professional position which put Your Lordship in position to take an
adversarial position to the interest of the
Applicant.
2.05
In ABALAKA
V MIN. OF HEALTH (2006) 2 NWLR PT. 963 PG. 105 AT 130 the court of Appeal per I. T Muhammad JCA
(as he then was) defined bias
as follows;
“Bias legally defined is a precondition to
decide a cause or an issue in a certain way which does not leave the mind
perfectly open to the adjudicator’s conviction. It sways judgment and renders a
Judge unable to exercise his functions impartially in particular case. Where it
is established by evidence or acknowledgment it disqualifies a Judge from
participating on the matter placed before him.”
2.06
We
submit that in view of Your Lordship's previous professional engagement in a previous criminal conduct in
which the Applicant was the victim
and Your Lordship was the adversary but the Learned Trial Judge in that case eventually vindicated
the Applicant as against the adversarial
position of Your Lordship by striking out 45 out of the 47 count Your Lordship brought against the
Applicant and in the remaining
two counts that went to full trial that spanned about 7 years, the Applicant was discharged and acquitted.
2.07
The
simple question to the mind of a reasonable man is whether in the circumstance of Your Lordship's position, the
chance of an impartial adjudication
on the present criminal trial exist , we answer and submit in the
negative. See ALSO ADENIRAN V ASHABI
(2004) 2 NWLR PT. 857 PG. 375.
2.08
My lord, the test with which to assess
whether a Judge’s conduct falls firmly within the balance referred to above is
objective. It does not lie in any subjective assessment or in the views of the
Prosecution in this matter. It is the reasonable man’s test or what is
generally referred to in English law as the ‘Clapham Omnibus Test’. See the
English Supreme Court decision on this point in HEALTHCARE AT HOME LTD V THE COMMON SERVICES AGENCY (2014) UKSC 49 thus:
"The Clapham omnibus has many
passengers. The most venerable is the reasonable man, who was born during the
reign of Victoria but remains in vigorous health. Amongst the other passengers
are the right-thinking members of society, familiar from the law of defamation,
the officious bystander, the reasonable parent, the reasonable landlord, and
the fair-minded and informed observer, all of whom have had season tickets for
many years. 2. The horse-drawn bus between Knightsbridge and Clapham, which
Lord Bowen is thought to have had in mind, was real enough. But it’s most
famous passenger, and the others I have mentioned, are legal fictions. They
belong to an intellectual tradition of defining a legal standard by reference to
a hypothetical person, which stretches back to the creation by Roman jurists of
the figure of the bonus paterfamilias. As Lord Radcliffe observed in Davis
Contractors Ltd v Fareham Urban District Council [1956] AC 696 728: “The
spokesman of the fair and reasonable man, who represents after all no more than
the anthropomorphic conception of justice, is and must be the court itself.” 3.
It follows from the nature of the reasonable man, as a means of describing a
standard applied by the court, that it would misconceived for a party to seek
to lead evidence from actual passengers on the Clapham omnibus as to how they
would have acted in a given situation or what they would have foreseen, in
order to establish how the reasonable man would have acted or what he would
have foreseen. Even if the party offered to prove that his witnesses were
reasonable men, the evidence would be beside the point. The behaviour of the
reasonable man is not established by the evidence of witnesses, but by the
application of a legal standard by the court. The court may require to be
informed by evidence of circumstances which bear on its application of the
standard of the reasonable man in any particular case; but it is then for the
court to determine the outcome, in those circumstances, of applying that
impersonal standard’.
2.09
In Nigeria, it is the reasonable man’s test
that is in vogue; In MOHAMMED V. KANO
N.A. 1968 1 ALL N.L.R. P.42 Ademola CJN delivering the Judgment of the
Supreme Court opined: "It has been
suggested that it fair hearing does not mean a fair trial. We think a fair
hearing must involve a fair trial and a fair trial of a case consists of the
whole hearing. We therefore see no difference between the two. The true test of
a fair hearing is the impression of a reasonable person who was present at the
trial whether from his observation justice has been done in the case".
2.10
Submit with respect that the required material
to reach such a decision can be found in the supporting affidavit in which the
Applicant expressed his apprehension and fear
that in view of what transpired in the earlier criminal trial which was
authored by Your Lordship and was subsequently dismissed by the Judge of this
Court by discharging and acquitting the Applicant. It is humbly submitted that this is the
platform upon which to apply the ‘Reasonable Man’s test in favour of the
Applicant. The reasons for seeking disqualification of Your Lordship from
further participation in this trial are very apparent and indeed the only
natural consequence of the facts that have been narrated above.
2.11
In the very instructive case of YAKUBU
V STATE (2007) 9NWLR PT. 1038 PG. 1 AT 29, His Lordship Galinje JCA Held as
follows;
“Bias is a very serious attack on the
person and credibility of a Judge and a counsel who decides to attack a Judge
on that must show concrete evidence in support of that attack. However, in law,
if a party raises objection as to the likelihood of bias on the part of a Judge
trying a case, it is safer and more in the interest of justice for the Judge to
refuse taking the matter, unless it is clear that the party is raising the
objection qua opposition lacking merit and is designed to delay the court
process or an outright abuse of the judicial process.”
2.12
We respectfully submit finally on this
issue one that the 2nd Defendant/Applicant has shown concrete evidence why this
application should be allowed. We therefore urge Your Lordship to recuse
yourself from the further adjudication on Charge No. FHC/L/251C//2016 to ensure
that the justice is not only done but glaringly seen to have been done.
ARGUMENT OF ISSUE TWO:
3.00
WHETHER THIS
IS A PROPER CASE TO TRANSFER THIS MATTER
TO THE ABUJA DIVISION OF THIS HONOURABLE COURT IN THE MANNER PRAYED FOR BY2ND
DEFENDANT/APPLICANT?
3.01
We submit that the Applicant's prayer on
this point invites Your Lordship to exercise discretionary power of this court
to transfer this criminal trial back to the Chief Judge of the Federal High
Court for re- assignment . Under Section 492(1) of the Administration of
Criminal Justice Act, Your Lordship is
empowered to apply or adopt any procedure that will meet the justice of the
case where there are no express provisions in the Act. The procedure to be so
adopted or applied may be as is the practice in other courts in Nigeria or
elsewhere including England. See OGBAEGBE
v. FBN PLC. (2005) 18 NWLR (PT. 957) 357 at 376 paras. G-H;
3.02
It is our respectful submission that in
view of the above, Your Lordship is bound by the provisions of the laws aforesaid.
The same also goes for the decisions of the appellate courts which binds this
Honourable Court, particularly where the circumstances and facts are at fours.
See EMELUWA V ONUIGWE (2011)13 NWLR
(1265) 478 AT PARA B-C where the Court of Appeal per Orji-Abadua, J.C.A stated that:
“It
is an entrenched principle of law that lower courts are bound by the decisions
of the higher courts notwithstanding how witty and brilliant the decisions of
the lower Court could have been. The lower courts are bound by the doctrine of
stare decisis, therefore where a higher court in the hierarchy of Courts had
determined an issue or matter between parties before it and made a
pronouncement on it, the lower court is rather mandated by the Constitution to
enforce that decision and not to make any contrary decision to it
3.03
Flowing from the above, may we for ease of
reference and with leave reproduce relevant portions of the Federal High Court
Act and the ACJA to aid our discussion going forward.
Section
45 (a)
of the Federal High Court Act states:
45. Place where offence may be tried
“Subject
to the power of transfer contained in this Act, the place for the trial of
offences shall be as follows-
(a) an offence shall be tried by a Court
exercising jurisdiction in the area or place where the offence was committed”
3.04
Section
93(1) ACJA
provides:
93. (1) “An
offence shall ordinarily be inquired into and tried by a court within the local
limits of whose jurisdiction:
(a)
the
offence was wholly or in part committed, or some act forming part of the
offence was done.”
3.05
My Lord, the above provisions of admits of
no ambiguity. They are plain and must in interpreting them be accorded their
true meaning through a literal interpretation. For completeness, the only
exception offered in the ACJA for trial outside the place of occurrence of the alleged
offence can be found in Section 93(2) of
the Act. The section provides:
93:
(2) “A criminal charge shall be filed and
tried in the division where the alleged offence was committed unless it can be
shown that it is convenient to do so otherwise for security reasons.”
3.06
The prosecution has not led any particular
evidence to show that the matter can be conveniently tried in Lagos other than
Abuja where the alleged offence was committed. However, the opposite is the
case where the Applicant is exposed to a lot of inconvenience, security and
financial challenges as stated at
paragraphs 43-46 of the Applicant’s affidavit in support.
3.07
Fortunately, Section 45(a) of the Federal
High Court Act as reproduced above has been judicially interpreted in the case
of IBORI v. F.R.N. (2009) 3 NWLR (PT.
1128) 283 where that Honourable Court went as far as stating that a court
other than the one located in the area as alleged offence occurred lacks
territorial jurisdiction to try the offence. At pages 324-325 paras. H-G where
his Lordship, OREDOLA, J.C.A. held:
“To my mind and understanding of relevant provisions of applicable laws
thereto, an accused person should not be uprooted from the place of alleged
commission of the offence and be transplanted or supplanted in an entirely
different location or venue for the sole purpose of arraignment and standing
trial in a criminal prosecution. I do not want to be misunderstood. I am not
saying or suggesting by any means that an accused person should not be tried or
prosecuted. All that I am saying is that prosecution should not be conducted as
if it were with a shopping list with regards to what to buy and at where
specifically and when precisely it catches one's fancy.
Furthermore, I do not think that the intention of the framers of the 1999 Constitution of the Federal Republic of Nigeria and legislators, who enacted the Federal High Court, was to give absolute, unfettered and unbridled jurisdiction to the Federal High Court Act vis-a-vis the venue for the hearing and determining of any case, anywhere and at any place.
A carte blanche of a sort. If it were to be so, specific, emphatic and categorical provisions would have been enacted in respect thereof. It has not been suggested to us that this has been done and we have not found it to be so.
I also do not subscribe to the notion that it is right, proper and fair for either the prosecution or the accused person to pick, choose, dictate, elect or select which court or judge should hear and determine a matter in which it is involved. At all times, the venue or place of commission of an offence must be given adequate consideration when a charge is to be filed in a criminal prosecution. Such consideration must be given or weighed alongside other laid down factors or parameters. Thus, mostly and invariably, an accused person should be tried either at the place of commission of the alleged offence or at a place which is the most proximate to the place of commission of the alleged offence.
I am of the humble viewpoint that the jurisdiction vested in the Federal High Court with regards to criminal prosecution is not a blanket one or a blank cheque scenario. It is still subject to other tests of jurisdiction which includes the giving of consideration to territorial and geographical area of coverage or the place of commission of the alleged offence."
Furthermore, I do not think that the intention of the framers of the 1999 Constitution of the Federal Republic of Nigeria and legislators, who enacted the Federal High Court, was to give absolute, unfettered and unbridled jurisdiction to the Federal High Court Act vis-a-vis the venue for the hearing and determining of any case, anywhere and at any place.
A carte blanche of a sort. If it were to be so, specific, emphatic and categorical provisions would have been enacted in respect thereof. It has not been suggested to us that this has been done and we have not found it to be so.
I also do not subscribe to the notion that it is right, proper and fair for either the prosecution or the accused person to pick, choose, dictate, elect or select which court or judge should hear and determine a matter in which it is involved. At all times, the venue or place of commission of an offence must be given adequate consideration when a charge is to be filed in a criminal prosecution. Such consideration must be given or weighed alongside other laid down factors or parameters. Thus, mostly and invariably, an accused person should be tried either at the place of commission of the alleged offence or at a place which is the most proximate to the place of commission of the alleged offence.
I am of the humble viewpoint that the jurisdiction vested in the Federal High Court with regards to criminal prosecution is not a blanket one or a blank cheque scenario. It is still subject to other tests of jurisdiction which includes the giving of consideration to territorial and geographical area of coverage or the place of commission of the alleged offence."
3.08
Again, the Supreme Court recently while
citing IBORI’s case with approval
settled in the case of RODA v. F.R.N.
(2015) 10 NWLR (PT. 1468) 427 where the Supreme Court held that the often
repeated argument that the Federal High Court has one jurisdiction throughout
the Federation does not apply in
criminal cases where an offence occurred in a different division of the Court.
The Court per M.D. MUHAMMAD, J.S.C.
has harsh words for the prosecution at pages 475-476 paras. G-D thus:
“In the
case at hand, all the available materials, the charge and the evidence
proffered, all of which the trial court rightly considered in determining the
objection against its competence, situate the appellant and his co-accused at No. 3 Gaya Road, Kano where the firearms
unlawfully stored were recovered. There is nothing in evidence, beyond what the
charge asserts, of any understanding between the appellant and the others to
store the firearms at the premises. Aside from appellant’s physical presence at
the premises there is no slightest piece of evidence, not even in exhibit 3,
appellant’s extra judicial statement, to show that he agreed with his
co-accused to store the said firearms or that he is further linked with the storage
of the firearms at Abuja.
In my
considered view, the decision of the Abuja Division of the trial court to try
an offence which took place in Kano and bears no relationship whatsoever with
the offence in Abuja, having not stemmed from any provision of the enabling
statutes, is manifestly perverse. By virtue of
Section 459a) of the Federal High Court Act and similar provision contained in
section 64 of the Criminal Procedure Act, the appellant could only be tried by
the Kano Division of the trial court within the territorial expanse the offence
was committed. The absence of any evidence to suggest any understanding between
the appellant and others in Abuja or a link between the storage of the firearms
at Kano and those in Abuja further disentitle the Abuja Division’s assumption
of jurisdiction under sections 45(b)-(e) of the Federal High Court and or the
similar provisions in the Criminal Procedure Act.”
3.09
The above settles the question whether this
Honourable Court will be right to proceed with the trial of the Applicant in
this Division of the Federal High Court.
3.10
By the 2nd Defendant/Applicant’s affidavit
particularly paragraphs 30 –44 thereof, it has been shown that the alleged
offences and transactions leading to the said offences have no bearing whatsoever
with Lagos. None of the transactions leading to the alleged offences was
initiated or consummated in Lagos. The Applicant does not reside in Lagos. At
the time the alleged offences were allegedly committed, the Applicant was the
Director Media and Publicity of the Goodluck Jonathan Campaign Organisation.
The office of the Presidential Campaign Organisation (PCO) is located within
the Legacy House of the PDP where all the media and publicity took place and
all the involved allegedly constituting offences in this case were disbursed in
the said office.
3.11
As also stated in the said paragraphs,
defence and prosecution witnesses reside in Abuja and the Zenith Bank branch
through which all the financial transactions both cash and otherwise took place
were in Maitama, Abuja. The Applicant has also raised an important issue of impecuniosity
as a result of freezing of his personal and his wife's accounts by the EFCC. It
is becoming increasingly difficult to finance his trip to Lagos at every
adjourned date which entails hotel accommodation, air transportation owing to
bad roads, feeding and other logistics.
3.12
The Applicant’s opportunity to effectively defend himself is at risk
which is attributable to inability to fund his travels on each appearance and
to finance passage of defence witnesses
which number is in the region of 30 including PDP Presidential Campaign Organisation
members, party officials, Media Organisations and contractors he disbursed
monies to in the performance of the duties of his office as Director of Media and Publicity -
the subject of this charge.
3.13
The Applicant will have to endure the
oppressive toll of moving these
witnesses from Abuja to Lagos. That a Defendant should not be put to such
expense is clearly supported by the
Court of Appeal in IBORI’s case
per AUGIE, J.C.A. (as His Lordship then was) at page 318-319 paras. G-A:
The
lower court appears to have missed the point entirely. The issue is not about
the unfriendliness of the environment of the trial; it is about the
inconvenience to the appellants and the hardship entailed in moving over 250
witnesses and volumes of documents from Delta State, where the offences were
allegedly committed, to Kaduna, 700 kilometers away... We are talking about
fair hearing and the issue of fair hearing is one of substance and not form,
thus each case is decided on its own merits. The main thing is that they
condemned a similar situation as in this case, where the EFCC handpicked a
court and filed its charges there 700 kilometers away from where the offences
were allegedly committed.”
3.14
We therefore, most humbly invite the
Honourable Court to follow the reasoning in the above decisions of the Supreme
Court and the Court of Appeal in coming to a decision on the instant
application.
3.15
Section 386 (a) and (b) of the ACJA gives a
defendant the right to apply to the
court to transfer a matter from one Division to another where it will accord
with the interest of Justice. It provides thus:
“386 Notwithstanding the provisions of section 385
of this Act:
(a) where a cause is commenced in any other
division than that in which it ought to have been commenced, it may,
notwithstanding, be tried in that division in which it was commenced, but where
the defendant objects, the court may, where it considers the objection reasonable,
transfer the case to the proper division in which it ought to have been
commenced; and
(b) The prosecutor or the defendant may,
whenever he considers that the ends of justice so require in a case, may apply
to the court either to transfer the hearing from one division to another or
from one part of the division to another part of the division.”
3.16
The above provisions are similar to
Sections 70(1) and 71 Criminal Procedure Act interpreted by the Supreme Court
in RODA’s case. The Applicant by
this application has objected to the hearing of this charge in Lagos because of
untold hardship the he would be made to go through. The difficulty in preparing
and attending trial all the way from Abuja would hinder the 2nd Defendant/Applicant
from effectively preparing for his defence. The constitutional right available
to a defendant include the right to effectively prepare for his/her defence.
3.17
By virtue of Section 36(6) b of the 1999
Constitution of the Federal Republic of Nigeria -
"Every person who is charged with a criminal
offence shall be entitled to:
a.
Be given adequate time and facilities for
the preparation of his defence……’’
3.18
Facilities in this section has been
interpreted by the Supreme Court in OKOYE
& ORS v. COP & ORS (2015) LPELR-24675(SC)to mean:
“The word 'facilities' is not defined in the
Constitution. Blacks Law Dictionary 5th Ed (1975) defines facilities' as
"that which promotes the ease of any action, operation, transaction, or
course of conduct... the word facilities' embraces anything which aids or makes
easier the performances of the activities involved in the business of a person
or corporation". The facilities that must be afforded the accused person
are the 'resources' or 'anything which would aid' the accused person in
preparing his defence to the crimes for which he is charged.”
3.19
In other words, by proffering a charge
against the Applicant in the Lagos Judicial Division of the Federal High Court,
there is clear implication of denial of facility that the Applicant must be
afforded in presenting his defence in
this matter. The hardship and the oppressive toll it will take on the Applicant
to assemble his witnesses in this Division from Abuja offends his fair trial.
Preparation of the defence could face various constraints, ranging from
preparing the witnesses who might be ill-disposed to being dragged outside
their place of abode and livelihood to Lagos to testify. Evidence given under
such circumstance might be incoherent and unreliable. It would also pose
difficulty carrying about volumes of documentary evidence which this case
largely turns upon; and risk of losing them in transit before they are tendered
at the trial.
3.20
The above considerations weigh in favour of
the inescapable conclusion that this Honourable Court is forum non conveniens. The doctrine of forum non conveniens
according to the Blacks Law Dictionary 7thed,
page 665 was succinctly described:
3.21
See also IBORI’s Case at page
320-321 paras. H-C
“the
doctrine that an appropriate forum- even though competent under the law- may
divest itself of jurisdiction if, for the convenience of the litigants and the
witnesses, it appears that the action should proceed in another forum in which
the action might originally have been brought. Forum non conveniens allows a
court to exercise its discretion to avoid the oppression or vexation that might
result from automatically honouring plaintiff’s choice. However, dismissal on
the basis of forum non conveniens also requires that there be an alternative
forum in which the suit can be prosecuted. It must appear that jurisdiction
over all the parties can be secured and that complete relief can be obtained in
the supposedly more convenient court…..”
3.22
From the above analysis, it is apparent
that the following have been made out:
(a)
The Lagos Division of this Honourable Court
is not convenient for the Applicant;
(b)
The Applicant will suffer hardship,
oppression and unfair trial if her trial
commences in this Division of this Honourable Court;
(c)
Abuja Division of this Honourable Court is
the appropriate forum to try the Applicant.
3.23
It is the Applicant’s submission that all
these conditions have been met to show that this Honourable Court is not
convenient for the Applicant as can be shown from the depositions in the
affidavit in support.
3.24
The prosecution will not in any way be
prejudiced by the grant of this application. In fact, the Honourable Court will
be saving tax payers money as the transfer of this charge to Abuja will obviate
the need for the prosecution to fly its witnesses and ferry documents down to
Lagos from Abuja for trial. The EFCC has its headquarters in Abuja and should
have no difficulty prosecuting the Applicant in Abuja where it has other
charges against other persons.
4.00
CONCLUSION:
We urge your lordship to grant this
application and order the return of the
file in Charge. No Charge No. FHC/L/251C//2016 FEDERAL REPUBLIC OF NIGERIA V. NNENADI ESTHER USMAN
& 3 ORS. to the Honourable Chief
Judge of the Federal High Court for
reassignment to another court, in
Abuja Division of this Honourable Court.
5.00
LIST OF
AUTHORITIES:
Judicial
Authorities:
1.
ABALAKA V MIN. OF HEALTH (2006) 2 NWLR PT.
963 PG. 105 AT 130;
2.
ADENIRAN V ASHABI (2004) 2 NWLR PT. 857 PG. 375.
3.
HEALTHCARE AT HOME LTD V THE COMMON
SERVICES AGENCY (2014) UKSC 49;
4.
ADINNA AND OTHERS v. CHIEF CONSEVATOR OF
FORESTS (1950) 13 W.A.C.A 37;
5.
STATE v. SQN. LEADER O. T. ONYEUKWU (2004)
LPELR-3116 (SC).
6.
OGBAEGBE v. FBN PLC. (2005) 18 NWLR (PT.
957) 357 at 376 paras. G-H;
7.
UNIVERSAL OIL V. N.D.I.C. (2008) 6 NWLR
(PT. 1083) 254 at 264-266 paras. G-G;
8.
N.M.A. v. M.M.A. INC (2010) 4 NWLR (PT.
1185) 613 at 650 para. C.
9.
GBADAMOSI v. STATE (2013) LPELR-22169(CA)
10.
EMELUWA V ONUIGWE (2011)13 NWLR (1265) 478
11.
IBORI v. F.R.N. (2009) 3 NWLR (PT. 1128)
283
12.
RODA v. F.R.N. (2015) 10 NWLR (PT. 1468)
427
13.
OKOYE & ORS v. COP & ORS (2015)
LPELR-24675(SC)
6.00
Statutory Authorities:
1.
CONSTITUTION OF
THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED)
2.
FEDERAL HIGH
COURT ACT CAP. F12 LAWS OF THE FEDERATION OF NIGERIA, 2004
3.
ADMINISTRATION
OF CRIMINAL JUSTICE ACT, 2015
4.
CRIMINAL
PROCEDURE ACT
Dated this 16th day June, 2017
_____________________________
AHMED
RAJI, SAN, FCIARB. (UK)
NORRIS
QUAKERS SAN
Wale Balogun, Esq., BL, LLM, MBA
Adeola Adedipe, Esq.
(Counsel
to the 2nd Defendant/Applicant)
C/o Ahmed Raji & Co
No. 10, Santana Close,
Off Fandriana Close,
Off Malakal Drive,
Off Oda Crescent,
Off Dar-Es-Salam Street,
Off Aminu Kano Crescent
Wuse II,
Abuja
ON NOTICE TO:
1.
The Complainant/Respondent
Federal Republic of Nigeria,
C/O Its Counsel,
RotimiOyedepoIseoluwa, Esq.
Economic and Financial Crimes Commission (EFCC),
No. 15A, Awolowo Road,
Ikoyi, Lagos.
2.
The 1st
Defendant/Respondent
C/o of
Her Counsel
Ferdinand Orbih , SAN
A.J. Owonikoko, SAN
SYNERGY ATTORNIES
12,
OBAHORWEDE STREET,
ATLANTIC
VIEW ESTATE
OFF
ALPHA BEACH ROAD,
LEKKI
LAGOS.
01-2950788
3.
The 3rd
& 4th Defendants/Respondents
C/o of
their Counsel
S.I. AMEH (SAN) FCIArb.
Clement
Onwuenmunor Esq.
PP. S.I.AMEH (SAN) & CO.
(JUBILEE
CHAMBERS)
21
Onisha Crescent,
Off
Gimbiya Street,
Area 11,
Garki, Abuja.
OR
Clement Onwuenwunor & Co.
1
Faramobi Ajike Street,
Anthony
Village
Lagos.
08023162173.
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