When the Administration of Criminal Justice Act was enacted in 2015, it was hailed as the solution to trial delays. Before then, high profile cases dragged on for years. It was expected that with the innovative provisions of the ACJA, such delays would be eliminated.
Some success has been recorded, especially with the conviction of former Governors Joshua Dariye (Plateau) and Jolly Nyame (Taraba).
The Economic and Financial Crimes Commission (EFCC) in 2007 preferred 23 counts of money laundering and diversion of about N1.126 billion Plateau State Government’s ecological funds against Dariye.
He challenged the competence of the charge. The issue got to the Supreme Court, which on February 27, 2015 dismissed his appeal and ordered him to trial.
Dariye’s trial began on January 25, 2016. After a two-year trial, Justice Bukola Banjoko on June 12 sentenced him to 14 years imprisonment.
Nyame was charged in 2007 after leaving office. Exactly 11 years later, he was convicted and sentenced to 14 years imprisonment.
The former governors were unable to obtain stay of proceedings in their trial because of the ACJA’s provisions.
Interlocutory appeals arising from preliminary objections during criminal trials constituted major cause of delay.
But, Section 221 of the ACJA provides that the court shall not entertain any objections during criminal proceedings on grounds of an imperfect or erroneous charge.
Section 396 (2) provides that no objection shall be entertained or ruled on until the time of judgment delivery.
While there has been no stay of proceedings pending outcome of appeals as was the case in the past, several high profile cases that began after the enactment of the ACJA are still pending in court.
Although the ACJA, among others, makes provisions for daily trials, this is hardly implemented.
Some defence counsel have engaged in lengthy cross-examination of witnesses. Others file applications that do not directly question the charge but require a ruling. Some judges have also adjourned trials to deliver rulings on such applications.
In some instances, judges have been accused of bias, while there have been applications for adjournments, as well as filing of no-case submissions.
Here is a highlight of some high profile cases filed at the Federal High Court in Lagos and their statuses.
Fani-Kayode/Nenadi Usman
The EFCC, on June 28, 2016, arraigned former Minister of Aviation Chief Femi Fani-Kayode and his Minister of State (Finance) counterpart, Senator Nenadi Usman, for alleged N4.6 billion fraud.
They pleaded not guilty to the charge before Justice Muslim Hassan of the Federal High Court in Lagos.
The EFCC was only able to call one witness before Justice Hassan. The defence counsel refused to cross-examine the witness because they had pending applications.
While Usman prayed the court to allow her to be tried separately from Fani-Kayode and for her trial to be transferred from Lagos to Abuja for convenience, Fani-Kayode asked the judge to disqualify himself from adjudicating on the case.
He contended that Justice Hassan, who worked as Head of Legal at the EFCC before his appointment as a judge, signed the money laundering charge for which Fani-Kayode was previously tried and acquitted by Justice Rita Ofili-Ajumobia on July 1, 2015.
Fani-Kayode, therefore, asked the judge to withdraw from the case.
On March 16, last year, Justice Hassan recused himself.
He held that although Fani-Kayode did not present any evidence of bias against him, he would exercise “caution” by returning the case file to the Chief Judge.
Justice Hassan said he was declining jurisdiction “based on the fear and apprehension by the second defendant that he will not get a fair trial in this court”.
After nearly two months, EFCC re-arraigned Fani-Kayode before Justice Rilwan Aikawa on May 15.
On June 21, last year, Fani-Kayode asked Justice Aikawa to decline territorial jurisdiction and to transfer the case to the court’s Abuja division where the alleged offence was committed.
After three months, Justice Aikawa on September 26, last year, delivered a ruling on the application, dismissing it for being without merit.
Case status
Trial eventually began in Fani-Kayode’s case, but there was a halt when Mrs Usman asked Justice Aikawa to summon Minister of Information Alhaji Lai Mohammed for publishing her name as an alleged looter.
Mrs Usman initiated contempt proceedings before the same judge against Mohammed after he released her name as one of the looters of the treasury.
According to her, the Minister of Information was aware of the charge against her, yet he caused to be published a list of looters in several media platforms on April 1, where her name featured prominently as having looted N1.5 billion.
Her lawyer Chief Ferdinand Orbih (SAN) said the issue of contempt had to be resolved before trial court proceed.
The case will come up on Friday.
Ex-Air Force Chief Amosu and others
On June 29, 2016, EFCC arraigned a former Chief of Air Staff Air Marshal Adesola Amosu (rtd) for allegedly laundering N21 billion.
He was arraigned with a former Chief of Accounts and Budgeting at the Nigeria Air Force, Air Vice Marshal Jacob Adigun, and a former Director of Finance and Budget, Air Commodore Olugbenga Gbadebo.
Companies arraigned with them are Delfina Oil and Gas Ltd, Mcallan Oil And Gas Ltd, Hebron Housing and Properties Company Ltd, Trapezites BDC, Fonds and Pricey Ltd, Deegee Oil and Gas Ltd, Timsegg Investment Ltd and Solomon Health Care Ltd.
On October 24, 2016, EFCC accused Amosu’s lawyers of plotting to delay the case. A defence counsel, Norrison Quakers (SAN), had cast doubts on the identity of a prosecution witness, Skye Bank Plc’s compliance officer Mr Mojeed Olatunji.
Quakers demanded that Olatunji should produce his international passport, following which the court adjourned for a day.
When the trial resumed, Olatunji produced his International Passport, which was tendered in evidence.
Quakers pointed out that the name on the document was at variance with the name the witness gave the court.
After further cross examination, the defence team sought an adjournment because they needed to question the witness based on a document which was in EFCC’s possession.
When Oyedepo offered to produce the original documents in court, the defence counsel refused to accept them.
They insisted they would prefer to apply formally to the EFCC after paying the prescribed fees.
Case status
The trial was ongoing when it was announced in June that Justice Idris had been elevated to the Court of Appeal. The case has been re-assigned and will begin all over before another judge, Justice Chukwujekwu Aneke after several witnesses had been called before Justice Idris.
When the case came up before Justice Aneke on November 9, the defence counsel opposed EFCC’s bid to re-arraign the defendants on an amended charge in which the prosecution reduced the number of defendants from 11 to three, removing the eight companies previously named in the charge.
Amosu’s lawyer Chief Bolaji Ayorinde (SAN), said although the prosecution had the right to amend the charge, there should be a pronouncement discharging and acquitting the other defendants, the prosecution having dropped the complaints against them. He said: “The old charge must be given a decent burial as it cannot co-exist with the new charge.” Justice Aneke had adjourned until yesterday for ruling.
Ex-Abia Governor Kalu
On October 31, 2016, EFCC re-arraigned former Abia State Governor Orji Uzor Kalu for allegedly diverting N3.2billion Abia State funds.
He was re-arraigned along with Udeh Udeogu and Slok Nigeria Limited on 34 counts of money laundering.
On March 19, the prosecution and defence traded blames on who was responsible for delays in Kalu’s trial.
Kalu’s lawyer, Chief Charles Enwelunta, accused the prosecution of unduly prolonging the trial, adding that the delay was taking a negative toll on the defendants and their businesses.
The lawyer said: “Their businesses have suffered and they cannot plan again for anything because of this case. Even, we as counsel cannot plan our time for anything again because of this suit.”
Enwelunta said the prosecution indicated that it would close its case after 13 witnesses had testified.
“No one has an idea of when the prosecution will close its case in this matter. I urged my lord to intervene,” he said.
Udeogu’s lawyer, Chief Solo Akuma (SAN), added that the prosecution’s case was becoming endless.
But, EFCC’s lawyer Rotimi Jacobs (SAN) denied that the prosecution was responsible for the delay.
He said the defendants were to blame for filing an interlocutory appeal that went up to the Supreme Court for nearly 10 years.
“The case was filed since 2007 and the defendants were challenging jurisdiction till 2015 before the Supreme Court made a final pronouncement on the issue.
“I cannot be forced to close my case because we need to bring the facts before the court,” Jacobs said.
Case status
On May 11, EFCC closed its case in Kalu’s trial. On May 30, Kalu filed a no-case submission. On July 31, Justice Idris dismissed the no-case submission.
“The defendants have some explanations to make. The no-case submission is overruled,” the judge held.
Justice Idris granted Kalu’s request for permission to travel abroad to undergo surgery for an undisclosed ailment.
When the case came up on November 5, Kalu was absent. His lawyer Prof Awa Kalu (SAN) told Justice Idris that his client was away in Germany for a surgical operation.
He added that the ex-governor had been advised by his doctors to remain in Germany for some time to recuperate.
Jacobs said he was surprised at Kalu’s absence, describing it as an attempt to frustrate the case.
“I urge Your Lordship to treat the absence of the 1st defendant as that he has jumped bail,” Jacobs said.
Justice Idris, who has a fiat to conclude the trial, ordered former to appear before him within seven days.
He had adjourned until yesterday.
Dele Belgore/Abubakar Suleiman
On February 8, last year, EFCC arraigned a Senior Advocate of Nigeria (SAN) Mohammed Dele Belgore, and a former Minister of National Planning Prof Abubakar Suleiman before Justice Aikawa on a five-count charge.
EFCC accused them of conspiring to directly take possession of N450 million, which they reasonably ought to have known formed part of the proceeds of an unlawful act.
The commission said they committed the alleged offence on March 27, 2015, contrary to Section 18(a) of the Money Laundering (Prohibition) (Amendment) Act, 2012.
They were charged along with former Minister of Petroleum, Mrs Diezani Alison-Madueke, said to be at large.
The prosecution said Alison-Madueke allegedly shared $115,010,000 (about N35billion) to different individuals in 36 states ahead of the 2015 general elections.
On May 2, last year, Belgore urged the court to quash the charge. The application was dismissed last July 7.
Last October 3, Mrs Alison-Madueke, through her lawyer Dr Onyechi Ikpeazu (SAN), asked for an opportunity to defend the allegations against her in the charge.
“It will be in the interest of justice to facilitate the appearance of the applicant in court in order to enable her defend herself,” her lawyer argued.
On November 1, last year, Justice Aikawa dismissed the application.
“I have no option than to agree that the application is misconceived from the onset. I’ll refrain from calling it an abuse of court process. But I’ll not hesitate to call it a misuse of court process,” the judge ruled.
After EFCC closed its case, Belgore and Suleiman filed no-case submissions.
On April 12, Justice Aikawa dismissed the no-case submissions, holding that the defendants had cases to answer.
In early May, Belgore asked the court to compel the prosecution to produce all the statements he made.
His lawyer Seni Adio (SAN) argued that the additional statements were needed to enable Belgore defend himself.
In May 23 ruling, Justice Aikawa dismissed the application. He held that the application was an abuse of court process as the issue had been dealt with in the no-case application that was dismissed earlier.
The trial could not go on that day as Abubakar said he needed to change his lawyer. He was previously represented by Chief Tunji Ayanlaja (SAN).
Case status
Trial was billed to resume on October 2, but the defendants were absent. Suleiman’s lawyer Olaniran Obele told Justice Aikawa that the former minister, who withdrew from the Peoples Democratic Party (PDP) governorship primary in Kwara State, complained of “fatigue” and “logistics” challenges and could not make it to court.
Obele said: “He participated in the Kwara State gubernatorial primary. He said he was fatigued and could not come by road. He said I should beg Your Lordship that he was not in fine shape to come by road.”
Adio also said his client had logistics challenges and could not make it to court due to his inability to find a flight to Lagos.
EFCC lawyer Rotimi Oyedepo did not oppose the application for an adjournment. “I will grudgingly concede to an adjournment,” he said.
Justice Aikawa had adjourned until yesterday and tomorrow.
Senator Nwaoboshi
A fallout of Justice Idris’ elevation to the Court of Appeal was the re-assignment of the trial of Senator Peter Nwaoboshi to another judge.
The EFCC arraigned him on April 25 along with Golden Touch Construction Projects Limited and Suiming Electricals on April 25 for alleged N322 million fraud.
Based on a request by Nwaoboshi and the other defendants, the Court of Appeal President Justice Zainab Bulkachuwa granted Justice Idris a fiat to enable him conclude the case before resuming at the appellate court.
But the EFCC opposed the fiat, saying it would prefer that the case be transferred to another judge to begin afresh.
EFCC lawyer Mr M.S. Abubakar argued that Nwaoboshi’s case did not fall within the ACJA definition of “part-heard” criminal cases which an elevated judge could continue with.
According to him, Section 494 of the ACJA, which defines part-heard matters, refers to cases in which the prosecution had called all witnesses and closed its case, pointing out that EFCC had only called two of six listed witnesses.
But, Nwaoboshi’s lawyer Dr Valerie Azinge (SAN) said she was surprised that the EFCC, which always accused high profile defendants of adopting delay tactics to frustrate their trial, was the one opposing Senator Nwaoboshi’s application for a speedy trial.She said Section 396 (7) of the ACJA was enacted to cure delays that arise from judges’ elevation, adding that EFCC ought to champion its enforcement rather than rejecting the fiat granted Justice Idris.
Ruling, Justice Idris emphasised that while the ACJA was designed to achieve speedy dispensation of justice in criminal cases, all parties must be on board.
He said when read together, sections 396 (7) and 494 of the ACJA were drafted to prevent judges who have been elevated to the Court of Appeal from being bugged down by high court cases to the point where it prevents them from assuming their duties at the Appeal Court.
“In the circumstances of this case, where a fiat has been issued by the President of the Court of Appeal pursuant to Section 396 of the ACJA, and the matter not being a part-heard matter pursuant to Section 494 of ACJA, the court in my view will only have jurisdiction where both parties consent or agree that the matter should go on,” he said.
Case status
Following Senator Nwaoboshi’s re-arraignment on October 5, Justice Aneke adjourned until today for the trial to begin anew.
Uncertainty over Fayose
EFCC arraigned former Ekiti State Governor Ayodele Fayose for allegedly receiving and keeping N1.2billion and $5million stolen funds.
He was arraigned before Justice Mojisola Olatoregun on an 11-count charge of violating the Money Laundering Act. He was charged with his company, Spotless Limited.
EFCC said Fayose and his associate Abiodun Agbele, who is facing a different charge, allegedly took possession of N1, 219, 000, 000 on June 17, 2014 to fund the former governor’s 2014 gubernatorial campaign.
The commission said Fayose “reasonably ought to have known” that the money “formed part of the proceeds of an unlawful act, to wit: criminal breach of trust/stealing.”
EFCC said Fayose, on the same day, received cash payment of $5 million from then Minister of State for Defence Senator Musiliu Obanikoro, without going through a financial institution, the sum having exceeded the amount authorised by law.
The commission said Fayose benefitted from N4.65billion slush funds allocated by the Office of National Security Adviser (ONSA) under Col. Sambo Dasuki (rtd) during the Goodluck Jonathan Administration.
Case status
Fayose’s trial is billed to start on November 19. However, Justice Olatoregun, said to be 64-year-old, is expected to retire next year when she attains the mandatory retirement age of 65.
Going by what has happened in other cases, it not certain that Fayose’s trial will be concluded before the judge retires.
In that case, Fayose may have to be re-arraigned before another judge, with the trial starting all over again.
The separate trials of former Nigerian Maritime Administration and Safety Agency (NIMASA) Acting Directors-General Calistus Obi and Haruna Jauro for alleged fraud involving N682.9million are still ongoing before Justice Olatoregun.
Both were arraigned on April 11, 2016. Over two years later, after the prosecution had closed its cases, defence is yet to close theirs.
However, a source said EFCC could close a case within two weeks or less than a month, and that if the prosecution and defence cooperate, Fayose’s trial could be concluded before the judge leaves.
Making the ACJA work
Justice Idris, in the Nwaoboshi ruling, said everyone must make the ACJA achieve its potential, adding: “All the stakeholders in the administration of criminal justice must be determined and committed to the process of effective change.”
Pointing out that the Judiciary had been previously blamed for delays, he said the ball was no longer in the judiciary’s court as it behooves other parties to “walk the walk and not talk the talk, because in the end it is not the talk but the walk that matters…”
Justice Helen Ogunwumiju of the Court of Appeal, while delivering a keynote address at an event oranised by the Presidential Advisory Committee against Corruption (PACAC), had urged judges to take firm control of their courts.
She said trials sometimes got so “complicated” and “hydra headed” because judges allowed lawyers “to run the show”.
For instance, she suggested that a judge should not grant an adjournment on the basis that an absent Senior Advocate of Nigeria (SAN) would prefer to handle a case himself.
The SAN has juniors who are qualified lawyers, so they should handle the case on their principal’s absence, she said.
She told judges: “Don’t allow anyone to abuse your leniency. Don’t be fearful. Part of being a SAN is to have a junior.”
She noted that due to lack of firmness by judges, the trial process is sometimes hijacked and judges become helpless “in the face of various manoeuvres of the defendants and sometimes their high-powered expensive lawyers.”
Justice Ogunwumiju noted that Section 396 (7) of the ACJA provides that “in all circumstances”, the court may award reasonable costs in order to discourage frivolous adjournments.
“My humble interpretation is that where the court notices that the prosecution or the defence seeks frivolous adjournments, it may award costs against the state or prosecutorial authority.
“Where the defendant is asking for adjournment for frivolous reasons, the court should revoke the bail and give good and lengthy reasons for doing so.
“Let the defendant go on appeal before or after the trial because the court revoked bail for good reasons,” Justice Ogunwumiju said.
She recommended that immediately a charge is brought before a judge, the court should build up a historical data, which would facilitate a periodic review of the court’s performance.
