Between EFCC, Obla, SAN and the law

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As the trial of Hon Justice Rita Ajumogobia and Godwin Obla SAN before the Federal High Court, Lagos continued on Monday 24th June 2019.

At the proceedings, Justice Ajumogobia’s Counsel, Robert Clarke SAN drew the court’s attention to the 1st Defendant’s pending preliminary objection which challenges the jurisdiction of the Court to entertain the charge, on the ground that Justice Ajumogobia remains a Judge of the Federal High Court. Clarke emphasized that no official gazette has been released by the office of the president which shows that the President has accepted the recommendation of the National Judicial Council to remove Mrs Ajumogobia from office as a judge.

Again, Clarke drew the court’s attention to the fact that the letter relied on by the prosecution in proof of its claim that the President had approved the removal of Ajumogobia bore the inscription ‘Restricted’ which, he argued, presupposes that the document is not a public document that can be relied on by third parties or which can be tendered in court. He relied on the case of Governor of Ekiti State v Ojo (2006) 17 All FWLR (Pr 331) pg. 126 as well as the provisions of Section 103 of the Evidence Act.

Chief Clarke submitted in conclusion that, there being no gazette showing the fact of the removal of Hon Justice Ajumogobia as a Judge of the Federal High Court, the court before which the current charge has been filed is bound by the decision of the Court of Appeal in the case of Nganjiwa V FRN- where it was held that no court has the jurisdiction to entertain a criminal matter against a serving judicial officer in relation to an allegation of misconduct occurring in the course of judicial functions, until such an officer has been disciplined and removed from office.

Consequently, Clarke SAN urged the court to decline to exercise jurisdiction over Hon Justice Ajumogobia in respect of the Charge filed by the EFCC.

On the part of the 2nd Defendant (Godwin Obla (SAN) who was represented by Ifedayo Adedipe (SAN) and Ferdinand Orbih (SAN), the attention of the court was drawn to an application seeking the quashing of counts 1,2 and 3 of the charge or, in the alternative, an order allowing his separate trial on the said Counts of the charge.

Adedipe SAN submitted before the court that, after almost 3 years of trial at the Lagos State High Court during which the prosecution called 14 witnesses and after which Obla SAN filed a no case submission, the Lagos State High Court, agreeing with Rotimi Oyedepo for the prosecution that it lacked jurisdiction over Hon Justice Ajumogobia, struck out the charge without ruling on Obla SAN’s no case submission.

Adedipe further argued that immediately that ruling was delivered by the Lagos High Court, Obla filed an appeal at the court of appeal, Lagos division, seeking an order discharging and acquitting him.

In his view, the action of the prosecuting counsel in filing yet another charge before the federal high court on the same set of facts and evidence in the charge before the Lagos high court (which is now the subject of Obla’s Appeal) amounts to a gross abuse of court process and a clear case of persecution against Obla, both of which ought to be resisted by the federal high court.

Adedipe also submitted that Obla’s application for the severance of the charge was to ensure the expeditious disposal of the trial, as opposed to the situation allegedly orchestrated by the prosecution at the Lagos High Court which saw the trial span a period of almost 3 years, at great expense and inconvenience to the 2nd Defendant and his Counsel.

Nigerian pilot law recalled that Chief Obla,SAN, had made a similar application for the separation of his trial to the Lagos High Court during his trial before that Court, in which he argued that not being a judicial officer, he was not bound by the challenge to the court’s jurisdiction raised by Justice Ajumogobia and so should be allowed to stand trial separately and quickly.

Curiously, the prosecution which filed that charge, led by Rotimi Oyedepo, vehemently opposed this application and instead urged the Lagos court to strike out the charge against both Ajumogobia and Obla and to discharge them. This, according to Adedipe, is one of the grounds on which Obla’s appeal rests and also forms the basis of the application to the Federal High Court, in view of the need to avoid a repeat of the unnecessary delays witnessed during the preceding trial.

In his response, Rotimi Oyedepo for the prosecution contended that the EFCC has the liberty to file charges against Obla (or anyone for that matter) on the same set of facts before separate courts and that such an action would not amount to an abuse of court process.

Oyedepo also argued that even if it could be assumed that the court of appeal discharges Obla on the allegations brought at the Lagos high court, that would not affect the validity of the charge before the federal high court because “the charges are different”.

This difference, according to him, stems from the fact that the charge at the Lagos court was brought under Lagos law, while the fresh charge filed at the federal high court was brought pursuant to the Money Laundering (Prohibition) Act.

He relied on the decision of the Court of Appeal in the case of FRN v Ogunbodede in submitting that separate charges could be filed against the same person on the same set of facts before separate courts- one charge for the predicate offence and another for the money laundering allegation.

Oyedepo then suggested that the application for separate trial filed by Obla SAN was speculative and prejudicial to the EFCC which, according to him, would be required to call witnesses in more than one trial if the severance of the charge is permitted.

In his view, this could also cause more delays for the trial.

He then appeared to suggest that, but for the applications filed by the defendants, the trial would have commenced – this implying that the defendants were attempting to delay the trial.

The Court however reminded him that on the last adjourned date (23rd May 2019), Clarke SAN was ready to argue his preliminary objection but that it was infact the prosecution counsel that urged the court to adjourn the proceedings.

Consequently, it would seem that the allegation that the defendants are seeking to delay the trial is a contrivance on the part of the prosecution, perhaps to fit into the common EFCC narrative that delays in criminal trials are often the handiwork of the defense, and not the fault of the agency.

Adedipe SAN, in his response on points of law to the above arguments of the prosecution, denounced Oyedepo’s argument to the effect that separate charges could be filed on the same facts against the same defendant before different courts and described it as “dangerous” and as an act of forum shopping.

According to him, if the EFCC is allowed the liberty of filing separate charges on the same facts against the same person, the court will be going against the injunction of the Supreme Court that no person should be the subject of persecution by agencies of the state, as was held by Uwais JSC (as he then was) in the case of EDET V STATE (1988) LPELR-1008 (SC) Pp. 18-19.

He stressed that the court ought to frown at such an action and should not hesitate to deprecate it where it occurs.

In Adedipe’s view also, it is the EFCC that stalled the expeditious trial of Obla SAN, and not the other way round.

According to him, Obla has always made himself available to stand trial and even applied to be tried separately on the four counts of the 31-count charge filed at the Lagos high court which affected him, to allow for the trial of Mrs Ajumogobia on the remaining 27 counts of that Charge.

The EFCC it was which resisted that application, as is the case even before the Federal high court where the EFCC is opposing Obla’s application for his separate trial on Counts 1,2 and 3 of the 18-count charge which affect him alone.

After hearing the parties, the court adjourned the ruling on both Ajumogobia and Obla’s application to Friday 28 June 2019.

Adedipe subsequently moved an application to allow for the variation of Obla’s bail conditions. This application, having not been objected to by the prosecution, was granted by the Judge.

The proceedings now stand adjourned till( tomorrow)Friday 28th June 2019 for ruling on the pending applications.

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