Alleged N10.9bn Theft: Court Strikes out Nwosu’s Application to Prevent His Trial

Justice Lateefa Okunnu of an Ikeja High Court yesterday struck out two applications preventing former Managing Director of the defunct FinBank Plc, Mr. Okey Nwosu, from facing criminal trial at the High court.

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

The apex court, in a lead judgment delivered by Justice Musa Dattijo Muhammed, had allowed the appeal filed by the federal government and set aside the allegedly perverse judgment of the Lagos Court of Appeal.

The court held that the decision of the trial court delivered by Justice Lateefa Okunnu prevails and 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 of stealing.

When the matter came up yesterday, counsel to Nwosu, Mr. Anthony Idigbe (SAN), in the first application, filed a written address dated January 20 before the court.

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

“My Lord, the facts of this case is simple, the Chief Justice of Nigeria (CJN) directed the Chief Judge of Lagos State 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’.

“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.

“It is a well-established 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 filed 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,” Sowemimo said.

EFCC counsel, Mr. Rotimi Jacob (SAN), while opposing the applications filed by Idigbe and Sowemimo, told the court the applications were unfair and not in the interest of justice.

“In the decision of FRN vs Okey Nwosu, the Supreme Court said in the 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 in an application filed by the defence on November 11 was not based on discretion but based 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 these, I urge your Lordship to refuse the application,” Jacob urged the court.

Ruling on the applications, Justice Okunnu 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 Adoke (SAN), former Attorney General of the Federation.

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.