The courts are supposed to be where justice is dispensed. But, with trials taking ages before they are concluded, the so-called ‘long-arm of the law’ appears to have been amputated. Relative to Nigeria’s population, the number of convicts per capita is extremely low. JOSEPH JIBUEZE discovers that sabotage, blackmail, corruption and undue delays are behind the snail speed of the justice system
It has a beginning. It has an end too. But the end usually takes longer than expected. It takes so long that many believe it actually has only a beginning and no end. This is the story of Nigeria’s criminal justice system where criminal trials last endlessly. The result is that impunity reigns supreme. Shockingly, most times the pattern is the same: undue delays in trials, sabotage by state officials and blackmail of judicial officials by accused persons. A new dimension in the art of delaying criminal cases was witnessed in Ekiti State prior to the swearing in of Ekiti State Governor Ayo Fayose.
Fayose was under trial for allegations of financial misappropriation during his first term as governor between 2003 and 2006 when he was removed from office through an impeachment. Contrary to reports, EFCC said it had not dropped the charges against Fayose, who won the June 21 governorship election.
Prior to the swearing-in, a group, E-11, and others challenged Fayose’s eligibility to contest the election. In a determined bid to stop the case from being heard, all hell was let loose. Judges, lawyers, court officials, and journalists felt the brutality of thugs.
The first attack occurred on September 22. Thugs allegedly loyal to Fayose invaded the Ekiti State judiciary headquarters where Justice Isaac Ogunyemi was to deliver a ruling on the case. The thugs beat workers black and blue while the presiding judge and lawyers had to run for dear lives. They smashed windows and furniture.
In the words of the Chief Judge, Justice Ayodeji Daramola, “the policemen and other law enforcement agents deployed within and without the premises in large numbers were looking on completely uninterested and unconcerned while these thugs were on the prowl beating and maiming workers and court users.”
On September 25, thugs invaded the High Court premises, beating judicial officers.
Justice Daramola recalls: “The thugs invaded my court where I was to deliver a judgment in a land matter, tore the Record Books, beat the court officials and vandalised the furniture in Court No. 1. The political thugs descended on Hon. Justice J. A. Adeyeye the presiding Judge in Court No. 3, beat and dragged him on the ground.
“The judge’s suit was also torn into shreds. I could not gain entrance into the premises of the court and had to hurriedly turn back on being alerted that I was the prime target of the hooligans.”
Consequently, the Chief Judge ordered the closure of the court until the safety of judges, magistrates and staff could be guaranteed by the law enforcement agents.
Unconfirmed sources said the Presidency directed the military and the police to ensure that the courts remain sealed until after Fayose’s inauguration as governor on October 16.
Soldiers and policemen barricaded the court premises as from October 7, turning back judges, lawyers and litigants on the basis of an alleged “bomb” threat. The siege moved from courts in the state capital to all others within the state, including customary courts.
On October 13, the NJC directed Justice Daramola to make a formal announcement to reopen the courts. He did on October 14, after two weeks of forced closure, even as workers stayed off. Two days later, Justice Daramola swore in Fayose as governor.
There was outrage over the attacks. The Nigerian Bar Association (NBA), human rights groups, retired judges, senior advocates of Nigeria (SANs) were unanimous in their condemnation of the action.
There are fears that a horrible precedent had been set. All the corrupt need to do is to sanction the disruption of a criminal trial by sending thugs to beat up judges and force a shut-down of the “helpless” judiciary.
The case of the ex-bank chiefs
Unlike the Ekiti sage, the trials of ex-bank chiefs have witnessed more civil means of prolonging adjudication.
In mid August 2009, the Central Bank of Nigeria (CBN) “hammer” fell on five bank chief executives, namely Sebastin Adigwe (Afribank), Okey Nwosu (Finbank), Erastus Akingbola (Intercontinental Bank), Cecilia Ibru (Oceanic Bank) and Bath Ebong (Union Bank).
The CBN governor at the time, Sanusi Lamido Sanusi, said they were sacked due to the banks’ high level of non-performing loans and non-adherence to best practices in risk management.
The five banks were subsequently rescued in a N400billion government bail-out as they were found to have low cash reserves because of bad loans and corrupt practices.
Three weeks after their sack, the sensational trial of the bank chiefs began. The news media celebrated their arraignment. Before their court appearance, journalists kept vigil at the Lagos office of the Economic and Financial Crimes Commission (EFCC), giving updates on their interrogation by the commission. Reports of their arraignment were the leading stories in every media outlet.
However, five years after their arraignment, the cases are still pending in court with no end in sight. The EFCC arraigned four of the bank chiefs at the Federal High Court in Lagos on charges of fraud, concealment and grant of loans without adequate collateral running into about N625billion. Akingbola, who was initially at large, later returned and was arraigned.
Of the five bank chiefs, only the case against Ibru has been concluded – after she pleaded guilty in a plea bargain.
On October 8, 2010, the court sentenced her to 18 months imprisonment for mismanaging depositors’ funds and granting credit facilities worth $20million and N2billion far above CBN’s approved limit.
The jail term ran concurrently, so Ibru spent about six months in ‘prison’. She was allowed to continue with her treatment at a highbrow Reddington Hospital in Victoria Island after her sentence.
Ibru forfeited assets worth N191billion comprising 94 choice properties in the United States and Dubai in the United Arab Emirates. She also gave up shares in about 80 listed companies on the Nigerian Stock Exchange (NSE) and in 20 unlisted companies. She was ordered to reimburse N1.29billion.
The Akingbola case
What many see as a deliberate ploy to delay trial through loopholes in the system has delayed judgment in Akingbola’s trial, for instance.
While the case at Federal High Court was pending, the EFCC charged Akingbola and the others at the Lagos State High Court, Ikeja, with theft of depositors’ funds.
On May 31, 2011, Akingbola and an associate Bayo Dada were arraigned before Justice Habib Abiru on a 22-count charge bordering on conspiracy and alleged stealing of N47.1 billion belonging to the bank.
After much delay, caused by preliminary objections and application for stay of proceedings, which were all dismissed, trial began. Witnesses testified. There was excitement that for once, a high profile criminal case was about to be concluded quickly. But there were twists.
The defence counsel, which initially included three Senior Advocates of Nigeria, Messrs Felix Fagbohungbe, Deji Sasegbon, and Rickey Tarfa, tried to stop the arraignment. Even after the EFCC filed the charges, the matter suffered three adjournments before the arraignment took place.
It did not hold when the accused were first produced in court on May 10, 2011 because the EFCC, which held the defendants in custody, did not bring them to court early enough. There were two further adjournments on May 16 and May 23, 2011, due to a motion by the defence challenging the court’s jurisdiction to entertain the charges. The objection was on the basis that it was the Lagos State Attorney-General and not Attorney-General of the Federation through the EFCC that ought to file the charges.
Justice Abiru, in a ruling on May 31, 2011, dismissed the application and ordered that Akingbola be arraigned. After he pleaded not guilty, the judge adjourned for trial and fixed three initial dates – July 20, 26 and 27, 2011.
As the EFCC sought to open its case, the defence sought a stay of proceedings pending the determination of their appeal against his May 31 ruling.
Justice Abiru dismissed it and held that Section 277 of the Administration of Criminal Justice Laws of Lagos State and Section 40 of the EFCC Act did not give room for stopping a trial in criminal proceedings before the delivery of judgment.
The defence then sought adjournments on the ground was that the prosecution counsel, Mr. Emmanuel Ukala (SAN), served them a counter-affidavit to their pending motions late.
They also sought an adjournment because the court was on vacation; therefore, the judge lacked jurisdiction to entertain the case.
Besides, they said they had two applications, one which sought an adjournment pending the hearing and final determination of their appeal before the Court of Appeal and the other which sought to quash the charges.
Justice Abiru heard the applications in October 2011 and struck them out for lacking merit.
After these delays, EFCC called its first witness, Intercontinental Bank’s Chief Inspector Abdulraheem Jimoh, who testified that he led the bank’s investigation on five transactions by Akingbola involving £8.5million, £1.3million, N10billion, N2.5billion and N8.6billion.
Jimoh alleged that Akingbola’s transfer of N2.1billion from the bank breached a number of banking procedures. The trial continued till April 15, 2012 when the EFCC closed its case with the testimony of its operative and second witness, Nkechi Ibekaku.
Rather than open their defence, the defendants filed an application for a no-case submission (in which a defendant seeks acquittal without having to present a defence).
It was adjourned for EFCC to file its counter-affidavit. After it was argued, it was adjourned for ruling. Justice Abiru, on May 30, 2012, dismissed the no-case answer.
Eventually, the defence called four witnesses, including Akingbola and Dada, who denied all the allegations by the EFCC. Akingbola, who was the last defence witness to testify, denied allegations of theft against him, describing them as “false, incorrect and malicious”.
On September 11, 2012, Fagbohungbe accused the judge of bias. His grouse was that the judge overruled his request for an adjournment to continue leading Dada in evidence on another day.
Fagbohungbe said he wanted an adjournment to carry out investigation on “certain things”. He also complained that the judge was not writing down part of Dada’s testimonies. But the judge said the request for an adjournment was unnecessary.
On October 22, 2012, the defence team sought an adjournment because they were unable to produce a witness they had promised to bring.
Justice Abiru refused the prayer, and ordered defence to close their case. The judge said his order followed an undertaking by Fagbohungbe that the defence’s case would be closed if the witness was not produced in court that day.
Justice Abiru then adjourned till November 15, 2012, for adoption of final written addresses by parties. A date for judgment would have been fixed that day, but it never happened. Instead, the unexpected happened.
It was announced on November 2, 2012 that Justice Abiru had been elevated to the Court of Appeal. In effect, the case, which was almost concluded, would start de novo (all over again) before another judge.
The Supreme Court’s decision on the case of Ogbunyiya vs Okudo (1979) All NLR 105 is often cited as the reason why a case cannot continue before a judge who has been elevated to the appellate court.
More twists
Akingbola and Dada were re-arraigned before Justice Adeniyi Onigbanjo on February 26, last year. Again, EFCC went through the process of recalling its witnesses. When it closed its case, Akingbola again made a no-case submission.
On July 15, 2013, Justice Onigbanjo dismissed the no-case application, holding that it lacked merit and that a prima facie case was established against the accused. He directed Akingbola to open his defence.
But there was a further twist in the tale. The judge was redeployed from the court’s criminal division to the commercial division. This development again cancelled previous proceedings in the case. The trial would begin de novo once again.
The Chief Judge, Justice Ayotunde Philips (now retired) re-assigned the case to Justice Lateef Lawal-Akapo.
Akingbola was billed to be re-arraigned on December 9, last year. Curiously, the court’s registrars ‘erroneously’ failed to include Akingbola’s case in the list of matters for the day. This led to a further adjournment till March 24 this year. The re-arraignment never held.
Akingbola, through his new lawyer, former Nigerian Bar Association (NBA) president Chief Wole Olanipekun (SAN), challenged Justice Lawal-Akapo’s jurisdiction to hear the case.
The defence counsel also sought to quash the charges on the basis that they related to banking and capital market issues which he said were within the Federal High Court’s jurisdiction.
On May 2, Justice Lawal-Akapo dismissed the objections for lacking in merit and assumed jurisdiction in the case. On June 23, Olanipekun prayed the court to stay proceedings in the trial until an interlocutory appeal against the May 2 ruling is determined at the Court of Appeal.
The appellate court, after hearing the case on October 16, reserved ruling on the interlocutory appeal.
As at the time of filing this report, judgment has not been delivered, and there is no end in sight.
The Abacha case
The Federal Government charged Mohammed, son of the late Head of State Gen Sani Abacha at the Federal Capital Territory High Court with receiving receiving money stolen from the government’s coffers by his late father between 1995 and 1998
The defendant sought to quash his trial on the ground that the immunity his father enjoyed while in office extended to the acts which constituted the offence for which he (the son) was charged.
It took over 10 years for the Supreme Court to rule on the interlocutory appeal, numbered SC.40/2006. The case was to resume at the lower court, but it never did.
On June 18, the Attorney-General of the Federation and Minister of Justice Mohammed Bello Adoke (SAN) withdrew the N446.3billion theft charge instituted against Abacha.
Adoke asked Justice Mamman Kolo to strike out the charges on the grounds of “fresh facts” that emerged concerning the case.
In the nine-count charge, Abacha was accused of “dishonestly receiving stolen property” and was said to have “voluntarily assisted in concealing the money.”
Following withdrawal of the charges, Abacha is now a governorship aspirant in Kano State on the platform of the ruling Peoples Democratic Party (PDP).
The Joshua Dariye trial
In September 2004, British authorities in London arrested then Plateau State Governor Joshua Dariye on allegations of money laundering and seized about £90,000 in cash from him. Dariye allegedly skipped bail and returned to Nigeria to resume office.
In April 2007, an English court sentenced Dariye’s associate to three years in prison for laundering more than £1.4million of public funds found to have allegedly been stolen by the governor.
When Dariye’s tenure expired, EFCC charged him with 14 counts of money laundering. Seven years later, the case is still pending.
The EFCC’s frustrated effort to prosecute him is a perfect case study of the court’s ability to generate delays so extreme that they are almost a form of impunity.
Soon after he was charged, the Federal High Court granted him bail, and his lawyers subsequently filed a motion asking that all of the charges against him be dismissed.
When the motion was denied, Dariye appealed. The lower court halted proceedings until Dariye’s appeal could be heard.
In June 2010, the Court of Appeal ruled against Dariye. As trial was to resume in January 2011, Dariye appealed to the Supreme Court, where cases last as long as five years or more.
In April 2011 Dariye won election to the Senate. A final verdict is yet to be rendered in his case, and the last may have been heard of it.
The unique case of an ex-governor
In March 2007, then-Rivers State Governor Peter Odili obtained a remarkable Federal High Court injunction restraining the EFCC from investigating his tenure.
Soon after he left office, he secured a “perpetual injunction” – widely condemned as a mockery of the judicial process – that permanently restrained EFCC from “arresting, detaining and arraigning Odili on the basis of his tenure as governor.”
Justice Ibrahim Buba of the Federal High Court, who made the order, added that the EFCC had no power to “in any manner howsoever investigate the account or financial affairs of a state government.”
In March 2008, “for the avoidance of doubt”, Justice Buba issued an order that the EFCC could not “arrest, detain, arraign and/or prosecute (Odili) on the basis of its alleged investigations into the affairs of Rivers State” during Odili’s tenure.
The judge declared that the “purported findings” of the EFCC’s investigations were “invalid, unlawful, unconstitutional, null and void.”
It remains unclear why EFCC has not contested the ruling. It was learnt that an EFCC official claimed that through some unexplained error, the commission was never even aware that the 2008 injunction had been issued until the time to appeal it had expired.
“These professions of total ignorance are hard to fathom considering that this was one of the EFCC’s most important cases,” a source said.
It was learnt that EFCC appealed Justice Buba’s 2007 ruling in October 2008, but it is unclear what stage the case is at. When our reporter enquired, an EFCC spokesman in Lagos directed him to the Head of Media, Wilson Uwujaren, who declined comments.
The Lawan/Farouk case
A former chairman, House of Representatives Ad Hoc Committee on Fuel Subsidy, Farouk Lawan and its Secretary Boniface Emenalo, were charged with collecting $620,000 as bribe from oil magnate Femi Otedola. It was in order to remove the name of his company from those indicted by the committee which probed monumental oil subsidy fraud and uncovered a defrauding of the country.
They were arraigned on February 1, last year at the Federal Capital Territory High Court in Gudu, Abuja. There was an alleged video evidence of the bribery, in what the federal authorities claimed was a ‘sting operation’, which in the developed world would have made the trial fairly straightforward, so as to establish the culpability or innocence of the accused persons. But it never happened.
Their trial started under Justice Mudasiru Oniyangi. As progress was being made, the judge, as in the Akingbola case, was elevated to the Court of Appeal. After the loss of several months, the case was re-assigned to a new judge, Justice Adebukola Banjoko on June 11.
On November 18, Justice Banjoko surprised a packed courtroom when she announced that she was withdrawing from the trial and would no longer adjudicate the case.
Her reason: to stem an unfounded allegation that sought to impugn her integrity. The judge ordered the casefile to be returned to the FCT Chief Judge, Justice Ibrahim Bukar.
Earlier, Lawan, through his lawyer, Chief Mike Ozekhome (SAN), filed an application dated October 29, asking the judge to quit the case.
Apart from the application, Lawan also petitioned the FCT Chief Judge, accusing Justice Banjoko of likely bias based on an alleged close relationship between her and Otedola, a proposed witness and the accuser in the case.
“In my 17 years on the bench, six years as a magistrate and 11 years as a judge, I have never been confronted with a scandalous challenge of my integrity,” the judge said bitterly.
According to the judge, “justice is rooted in confidence,” therefore, she could no longer continue to hear the case since the accused had first exhibited his lack of confidence in her.
“In the prevailing circumstances, I do find it difficult to continue this case. This case is returned to the honourable Chief Judge for re-assignment,” Justice Banjoko ruled.
The case, when re-assigned, will be handled by a third judge and will begin all over again.
Judicial cover for criminal suspects
In May 2007, a number of governors completed their eight-year terms of office. Having lost the immunity conferred on them by Section 308 of the 1999 Constitution, EFCC invited them for questioning on the basis of petitions alleging diversion of public funds running to billions of naira by them.
Some reported for interrogation while others sought interlocutory and perpetual injunctions restraining the EFCC from arresting, investigating or prosecuting them in any manner whatsoever and howsoever.
Among those who were charged to court, only two have been convicted and given sentences which many consider as “slaps on the wrist.”
The criminal justice system has been unable to conclude the trials of others.
Senior lawyers have continued to approach the courts to halt the investigation and prosecution of high profile criminal suspects.
In Bukola Saraki v. Inspector-General of Police (Unreported Suit No: FHC/ABJ/CS/231/2012), the plaintiff sought to restrain the Special Fraud Unit (SFU) of the Nigeria Police Force from investigating an allegation of N9 billion fraud leveled against him. After reporting for investigation, Saraki filed a fresh suit seeking to stop the police from prosecuting him.
“Apart from Nigeria, I know of no other country which allows criminal suspects to have criminal cases suspended or adjourned sine die on flimsy grounds,” Lagos lawyer Femi Falana said.
While criminally orchestrated delays may top the list of the commonest abuses of court process, the levelling of unfounded allegations against judges, which turn out to be mere smokescreen to buy time or seek a more pliable judge, is one tactics that has been described as nauseating.
Critics have described as worrying the fact that some judges fall for lawyers’ tricks without exercising their powers to punish for contemptuous conduct committed before them.
Many accused persons, without any iota of proof, resort to writing frivolous petitions against judges, accusing them of bias. The National Judicial Council (NJC) would summon the judge and parties in the petition while the trial would be suspended, which is the petitioner’s aim.
Most of the judges, such as Justice Banjoko, are cleared of any wrongdoing, and when the heat raised by such serious allegation is in the public domain, the accused or their lawyer simply apologises, while the judge most times withdraws from the trial, which is what the accused merely wanted to achieve. Criminal cases are thus frustrated and derailed by the use of blackmail.
Lessons from abroad
Several cases swiftly concluded abroad have exposed the Nigerian judiciary as being fundamentally weak. Some of these include those of Akingbola, former Delta State Governor James Ibori and the Halliburton case.
While Akingbola’s trial for theft drags on, a civil suit was instituted against him in a British court by Access Bank Plc.
A High Court of Justice, Queen’s Bench Division, London, in August 2012, ordered Akingbola to pay the bank £654million (about N212billion) allegedly diverted from the bank illegally. It was learnt that Akingbola had refunded £9 million out of the total sum.
On April 17, 2012, the Southwark Crown Court in London sentenced Ibori to 13 years after he pleaded to 10 counts of money laundering and conspiracy to defraud, having been accused of stealing US$250million from the public purse.
However, in Nigeria, 171-count charge of money laundering, fraud and corruption filed against Ibori at the Federal High Court, Kaduna was discontinued in his favour.
The Court of Appeal also held his trial in Kaduna was illegal as the alleged crime was committed in Delta. As there was no Federal High Court in Asaba, the Delta State government reportedly donated two buildings – one to house the court and the other to house the judge.
Upon his arraignment, Ibori pleaded not guilty and raised a preliminary objection against the charge. The trial judge, Justice Marcel Awokulehin, struck out the charge and freed Ibori. However, as EFCC took steps to re-arraign him, Ibori fled to Dubai where he was arrested and deported to London.
In the Halliburton bribery scandal, several investigation panels indicted three former heads of state, a former Inspector-General of Police, former ministers, permanent secretaries and other officials of the Federal Government. Although some of the suspects indicted in the inquiry made confessional statements, they were never charged to court.
Some of the privies of the principal suspects, who were eventually arraigned, were let off the hook for want of diligent prosecution. In exasperation, the trial judge struck out the charges.
The official connivance in sweeping the scandal under the carpet has since exposed the nation to underserved ridicule at home and abroad.
It was found that Halliburton and its officials who bribed the indicted Nigerian officials pleaded guilty to the charges of bribery and corruption before criminal courts in the United States and were accordingly convicted.
While Halliburton was ordered to pay fines of millions of dollars, the convicted officials were sentenced to prison terms. But in Nigeria, their accomplices walk about free.
