A Federal High Court in Abuja on Thursday rejected an application seeking an order dismissing the $1.6bn fraud charges instituted against Jide Omokore, an ally of a former Petroleum Minister, Mrs. Diezani Alison-Madueke, and others.
In a bench ruling delivered shortly after hearing the application on Thursday, Justice Nnamdi Dimgba also specifically refused to strike out an additional proof of evidence exhibiting the statement made to the EFCC by an additional proposed prosecution witness on June 7, 2017.
The application filed by the fifth defendant in the case, Abiye Membere, was anchored on the contention that the act of EFCC obtaining a witness’ statement about one year into the trial and when two prosecution witnesses had concluded their testimonies, constituted and abuse of court process.
The case was commenced in July 2016.
In his ruling, Justice Dimgba held that an alleged violation of the Federal High Court’s practice direction on criminal matters as argued by Membere’s lawyer, could not rob the court of its jurisdiction to hear a criminal case.
The judge held that the jurisdiction to hear a criminal case was donated to the court by the statues prescribing the offences on which the defendants were being tried and not the practice direction.
He said by virtue of the provisions of the Advance Fee Fraud and other related Offences Act and the Money Laundering (Prohibition) Act, the court had been conferred with the jurisdiction to hear the case which involved the offences of advance free fraud and money laundering preferred against the defendants.
He also held that section 379(2) of the Administration of Criminal Justice Act 2015, cited by the applicant, allowed the prosecution to file an additional proof evidence at any stage of the trial.
He added that the law did not limit the prosecution to specific types of additional evidence either documentary or oral that could be filed in court in the course of the trial.
He held that to interpret the laws “as construed” by the defendant would violate the said section 379(2) of ACJA and would create a “judicial clog” in the procedure of prosecution established by the law.
He added that the remedy available to the defendants was not to ask for the dismissal of the charges but to request more time to enable him to study the newly filed document.
“I’m of the view this application is not deserving to be granted and it is accordingly dismissed,” the judge ruled.
Apart from Omokore and Membere, other defendants are Victor Briggs and David Mbanefo.
Two of Omokore’s companies, Atlantic Energy Brass Development Limited and Atlantic Energy Drilling Concepts Limited, are also part of the defendants.
The EFCC is prosecuting the defendants on nine counts of criminal diversion of about $1.6bn alleged to be part of proceeds of the sales of petroleum products belonging to the Federal Government.
Part of the offences were said to be contrary to section 1 (1) (b) of the Advance Fee Fraud and Other Fraud Related Offences Act and punishable under section 1(3) of the same Act.
Arguing the application on Thursday, Membere’s lawyer, Mr. Folabi Kuti, prayed for an order dismissing the charges and setting aside the proceedings.
He asked the court to in the alternative strike out the additional proof of evidence dated June 9, 2017, containing a witness’ statement dated June 7, 2017, filed by prosecution.
He argued that the act of the prosecution constituted an abuse of court process and negated the principle of the Administration of Criminal Justice Act.
According to Kuti, what the prosecution filed, in the real sense of it was not an additional proof of evidence but a statement of a witness obtained only on June 7, 2017.
He contended that the witness’ statement obtained after the prosecution had called two witnesses showed that investigation of the case was ongoing contrary to the provisions of the Administration of Criminal Justice Act and Rule 3 of the Federal High Court’s Practice Direction on criminal matters.
The lawyer said, “As of the time this trial was going on investigation had not been concluded.
“The resulting effect is that the applicant has not been afforded the opportunity to know which case he is coming to face.”
Other defence lawyers did not file any process either for or against the application and only said on Thursday that they would leave the decision to the judge’s discretion.
In response, prosecuting counsel, Mr. Rotimi Jacobs (SAN), noted that the application was “based on a false premise”.
He noted that the purpose of front-loading the documents to be used by the prosecution was merely to bring the case of the prosecution to the attention of the defendant in line with section 36(6) of the Constitution.
He maintained that by virtue of section 379(2) of ACJA, the prosecution was entitled to file an additional proof of evidence at any stage of the trial.
He added that even if the practice direction had supported Membere’s contention, the practice direction, a directive by the Chief Judge of the Federal High Court, could not override the provision of ACJA which is an Act of the Parliament.
“The applicant by asking the court to strike out the charges is asking for a tall order. He is ambitious,” Jacobs said.
After dismissing the application, Justice Dimgba fixed July 5 for continuation of trial.
Credit: The Nigeria Lawyer
