BOOK SERIALISATION

2004 (in charge No: FHC/ KD/144/04) wherein after the court suo moto ordered that the 1st accused/appellant should appear and address the court on the applicability of Section 308 of the Constitution and on the application of the 1st accused person’s counsel, the court using the blue pencil rule struck out the portion relating to the 1st accused person. On the spot, after delivering his considered ruling, the learned trial Judge struck out the 1st accused person, who is the governor of Plateau State and ordered that the trial should proceed against the other accused persons having ruled that the accused persons never challenged the remaining charge. There was no opportunity given to the accused persons to address it on the propriety or otherwise of proceeding with the trial without the 1st accused person, having regards to the nature of the charges whom the trial Judge had even in the ruling described as the principal accused person.” The Court of Appeal was, therefore, being requested to determine “whether the decision of the trial Court to proceed with the trial of the appellant along others forthwith having struck out the 1st accused person was a denial of fair hearing of the appellant’s right” and also “whether the trial Judge had jurisdiction to continue adjudicating/trial of the appellant having struck out the 1st accused person having regards to the remaining offences/ charges before the court.”

When the matter came up at the Appeal Court on February 7, each of the accused was called to confirm their presence in court. The defence counsel requested the Appeal Court to grant an indefinite stay of proceedings of the case at the lower court to enable the appeal to be heard before further hearing but the Appeal Court refused saying it had no power within the law to do so. The Appeal Court then fixed March 7, 2005 for definite hearing of the case. The date of March 7, 2005 fixed by the Appeal Court was cited by Hon. Justice Liman of the Federal High Court as his reason for not granting an indefinite stay of proceedings. Hon. Justice Liman had also stated on the same day that he could not “stay a proceeding merely on the ground that an appeal is pending except on a special ground, which in this case has not been shown to exist.” He therefore rejected the application for stay of proceeding as the Appeal Court did earlier in the day.

The Court of Appeal sat on March 7, 2005, to allow the defence counsels to adopt their briefs and move their motions after which the Appeal court fixed April 7, 2005 for ruling. In the judgment delivered by Hon. Justice Baba Alkali Ba’aba, JCA, on April 7, 2005, the Court of Appeal ruled on appeal No. CA/K/38/C/2005 in respect of Charge No. FHC/KD/143C/04 before the Federal High Court, Kaduna.28 On the first ground of appeal, it held: “When in the instant case the learned trial judge formulated issues suo moto without affording the appellant a hearing, he has breached the fundamental right of the appellant to be heard which tantamounts to a violation of one of the twin pillars of natural justice, namely, the audi alteram partem principle. The right to a fair hearing does not stop with the parties being present in court. It is a right to be heard at every material stage of the proceedings. Any judgment or ruling based on breach of the constitutional provisions of fair hearing as provided in section 36 of the 1999 Constitution will not be allowed to stand on trial. It is fatal to the judgment appealed against on the said ground. In view of the foregoing, I hold that the appellant’s right to fair hearing has been breached. I therefore resolve issue No. 1 in favour of the appellant.”

On the second ground of appeal, Hon. Justice Ba’aba, JCA, noted that the issue was premature as it had not been raised at the trial court. He added that ‘the resolution of issue No. 2 (2nd ground of appeal) in his view could lead to delving into the substantive matter and for that reason “I will not proceed to resolve issue No. 2. In the result, this appeal succeeds and it is hereby allowed. The decision of the trial court in its ruling of 16/12/04 that the Charge No. 143/C/04 in counts 1 and 2 in particular are valid in relation to the appellant whose trial on the charge proceeded after striking out the name of the 1st accused now 2nd accused respondent having been raised suo moto and determined by the trial court without affording the appellant a hearing, is hereby declared a nullity. So are the proceedings subsequent to the ruling. The case is hereby remitted to the trial court to afford the appellant a hearing on the validity of that Charge No. 143/C/04 in relation to him before deciding on whether or not the appellant can be tried on that charge having regard to its contents after observing all the necessary requirements of the Criminal Procedure Act CAP C41.” The other three judges of the Appeal Court supported the judgment.

The judgment in appeal No. CA/K/40/C/05 in respect of case No. FHC/KD/144/C/2004 was delivered by Hon. Kudirat Motonmori Olatokunbo Kekere-ekun, JCA, also on April 7, 2005.29 Hon. Justice Kekere-ekun noted that ‘‘from the printed record, all that the trial judge did in relation to Charge No. 1, FHC/ KD/144C/2004, was to strike out counts 1 and 4 thereof wherein the 1st accused (now 2nd respondent) was the only person charged. The trial in respect of Charge No. FHC/ KD/144C/2004 did not commence on 16th December 2004. It cannot, therefore, be said that the appellant was not given an opportunity to be heard as to whether the trial should proceed or not. His plea in respect of the remaining counts 2 and 3 in Charge No. FHC/KD/144C/2004 had not been taken. He had therefore not been put on trial in respect of that charge. I hold that, there could be no breach of the appellant’s right to fair hearing with regard to that charge. It follows that this appeal does not arise from the decision or proceedings of the trial court in relation to that charge. In the circumstances, I hold that this appeal is misconceived. The submissions of learned counsel as contained in their respective briefs therefore go to no issue. Consequently, the proper order to make is to strike out the appeal. Accordingly, this appeal is struck out”. The other three Appeal Court Judges endorsed the judgment. The appeal filed by my counsel had succeeded because the first was upheld and the second was considered to be premature and the entire case was therefore returned to the Federal High Court, Kaduna for diligent prosecution. The grandfathers (as the Appeal Court Judges were fondly referred to by the defence counsels) in the Court of Appeal had done their job in the face of the law and the lower court was now required to do its duty.

The effect of the Court of Appeal ruling was to nullify the proceedings in the Federal High Court, Kaduna, subsequent to December 16, 2004 when the charges were amended, and return the case to the Federal High Court to begin afresh. The pleas of the accused persons were to be taken again. We were now given an opportunity to tell the court why we should not be tried based on the amended charges. When the parties returned to the Federal High Court, Kaduna on April 21, 2005, my defence team of Dr. Alex Izinyon, SAN, and Prince Adetokunboh Kayode, SAN, made the following submissions:

1) The 3rd Accused/applicant (Lawson Omokhodion) is not ready to be tried on the amended Charge No. FHC/ KD/144C/04, filed on 3rd February, 2005 containing four counts in which the plea of the applicant was taken on 7th February, 2005 on the sole ground that his defence will be highly prejudiced as his one and only witness in this case is Chief Joshua Chibi Dariye the governor of Plateau State, a current serving governor who cannot be summoned or subpoenaed to testify for him for his defence.

2) The 3rd Accused/ Applicant is not ready to be tried on the amended Charge No. FHC/KD/144C/04, filed on 3rd February, 2005 containing four counts in which the plea of the applicant was taken on the sole ground that the continued proceeding of the case and the prosecutor/prosecution in the conduct of the case will be prejudicial to the defence of the 3rd Accused/ Applicant.

3) Pursuant to the prayer 1 or 2 or both above, adjourning the case sine die until such further time and period when his defence will not be prejudiced by the availability of Chief Joshua Chibi Dariye to testify for him.

4) And for such further order or orders as the honourable court may deem fit to make in the circumstance.”

These arguments were also made in reference to Charge No. FHC/KD/143C/04. The lead counsels representing the 1st, 2nd, 4th, 5th and 6th accused persons made similar submissions. After listening to these arguments, Hon. Justice Liman took a short adjournment, promising to give his ruling on the motions that had been moved when the court reconvenes. After about an hour, the court reconvened. Hon. Justice Liman quickly dismissed the motions that had been moved and ordered that the pleas of the accused be taken immediately so that full trial would commence. The stern visage of Hon. Justice Liman was clearly visible and the accused persons knew that full trial would commence in earnest. The pleas of the accused persons were taken again and the EFCC was asked to lead the first prosecution witness in evidence. This was done.

From April 21, 2005, through the months of May, June and July 2005, the case was in full trial. The EFCC was challenged to prove my guilt with respect to the two charges. The EFCC brought five prosecution witnesses against me under Charge No. FHC/KD/143C/04. The witnesses were Messrs. Ibrahim Lamode, Bamanga Bello, Musa Sunday, John Ejims and Detective Peter Clark. Mr. Bello, EFCC’S lead prosecution witness, had worked in the banking industry for a cumulative period of seven months, out of which he had spent four months as acting branch manager at the National Assembly branch of Standard Trust Bank. He was called to prove that I did not verify the address and identify of Ebenezer Retnan Ventures before opening an account for the customer in Allstates Trust Bank. In his evidence, Mr. Bello revealed that the account opening folder of Ebenezer Retnan Ventures given to the EFCC by Allstates Trust Bank contained the specimen signature of the account holder, an application to open an account, letter of account status showing the interaction of the bank staff with the customer and a memo from Mr. Awe Odesa to me, the executive director, requesting for a waiver of other documents. Mr. Bello added that there was no document in the file showing that the customer’s identity was verified, there was no certificate of registration of business name from Corporate Affairs Commission, there was no visitation report of company premises to confirm if the company was in existence, there was no photograph of account signatory and means of identification, and the name of the proprietor of the business was not disclosed. 7KH %RRN µ3RZHUHG E\ 3RYHUW\¶ FDQ EH SXUFKDVHG DW 5RYLQJ +HLJKWV %RRNVWRUH DW 1R 2JXQODQD 'ULYH 6XUXOHUH /DJRV DQG IURP /DWHUQD 9HQWXUHV /LPLWHG 2NR $ZR6WUHHW 9LFWRULD ,VODQG /DJRV

RU )ULVHQHUJ\ RQ