A Federal High Court, Abuja, on Wednesday, fixed Sept. 25 for arraignment of former Kogi Governor, Alhaji Yahaya Bello, in spite of a case be filed in the Court of Appeal in Abuja.
Justice Emeka Nwite fixed the date after delivering a ruling on the application moved by Bello’s counsel, Abdulwahab Mohammed, SAN, praying the court to stay proceedings following an appeal filed at the appellate court.
The senior lawyer had told the court that the defence had filed an appealed against the arrest warrant and other rulings earlier granted by Justice Nwite.
Mohammed argued that the court could not proceed on the matter until the pending appeal was determined, citing authorities.
He also decried the treatment meted out to his colleague, Adeola Adedipe, SAN, at the last hearing, saying the prosecution misled the court.
“Your lordship is functus officio to continue with this case. Heavens will not fall if my lord awaits the Court of Appeal’s decision.
“My lord, the contention of Section 396 of ACJA (Administration of Criminal Justice Act) is a live issue in that appeal.
“We are relying on the provision of the constitution which overrides the EFCC’s Act which the prosecution is relying on,” he said.
However, counsel for the EFCC, Kemi Pinhero, SAN, opposed vehemently opposed the submission.
He said that the defendant had not shown any Court of Appeal’s document showing that the court wants the lower court to stay proceeding.
At that point, Justic Nwite asked whether, having received the application and affidavit of record of appeal, and being aware of the pending appeal, it would not amount to judicial rascality for his court to continue proceedings on the matter.
“Won’t it amount to judicial rascality to continue this case when there’s an issue of jurisdiction?” the judge asked.
But Pinheiro said “it is not really an issue of jurisdiction,” adding that in the face of Section 40 of the EFCC Act, the mere filing of an affidavit could not suffice as the case was not a civil case.
He urged the court to stick to the matter of the day, which was the ruling on the arguments presented on June 27.
Abdulwahab, however, told the court that the judge was misled on June 27 and that part of their request was for the proceedings of that day to be expunged.
“They are asking your lordship to undo the work of the Court of Appeal.
“To avoid controversy and in order not to render the appeal nugatory, this should not continue.
“Even if Yahaya Bello were to be here, you cannot arraign him since the appeal has been entered,” he argued.
The senior lawyer said the 13-paragraph affidavit of records of the appeal was filed on July 16 with 10 exhibits.
“It is basically praying your lordship's attention to the notices of appeal we have filed against your lordship rulings of the 23rd of April 2024, and 10th of May 2024.
“The file and records were transmitted through the Court of Appeal on the 24th of May 2024.
“And that the appellant’s brief of argument was filed on 31st of May 2024,” he said.
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According to Mohammed, an appeal had been properly entered with motion for stay of further proceedings of the lower court filed in respect of both appeals.
He argued that the two appeals challenged the jurisdiction of the trial court to entertain the charge ab initio.
“We urge your lordship to expunge the record of the proceedings on 27th of June because at that time, an appeal had been entered and the proceedings should not have happened. The court was functus officio,” he insisted.
He said going ahead with the matter would bring the court in conflict with the Court of Appeal.
Pinheiro observed that one of the appeals sought to have the court stay further proceedings until the determination of the appeal.
He, however, noted that the judge was bound by his own rulings and, therefore, had the discretion to determine whether to proceed or not.
He argued that the first authority that Abdulwahab cited was a 1999 case that predated the EFCC Act, 2004.
“This same position was canvassed on behalf of Mustapha SAN in 2016 case, Mustapha v FRN, and the court held that proceedings can only be stayed where there is a Court of Appeal order to that effect and they relied on 306. In Chukwuma v IGP, a 2018 case, the court held something similar,” he said.
Responding on point of law, Abdulwahab said, “We have two notices of appeal – one is on mixed law and fact and the other is on jurisdiction.
“The authorities he has cited are different from jurisdiction. Chukwuma v IGP is on admissibility of document and not jurisdiction.
“In Chief Cletus ibeto v Frn, which is an ongoing criminal appeal, all the facts are on all fours with the recent case.
“The lower court stayed proceedings because of the issue of Jurisdiction and now the argument at the Court of Appeal is on 306. That is how it is supposed to be.”
In his ruling, Justice Nwite said, “The grant of stay of proceedings is at the court’s discretion. And since it is an issue of discretion no one can give an authority for the judge to rely on. The judge only needs to exercise this power judicially.”
The judge, in a twist, held that the defendant wanted to use the appeal to delay proceedings.
According to him, there have been previous Court of Appeal judgments on such matters.
In another ruling, Justice Nwite granted the application for withdrawal of the defendant’s counsel, Adeola Adedipe, SAN, from the case.
The judge referred the matter of alleged misconduct by the defence counsel over alleged failure to produce the ex-governor in court to the Legal Practitioners Disciplinary Committee for investigation on possible infractions.
Justice Nwite said, having stated the law, “the question is whether there was an undertaking by Abdulwahab, SAN and Adedipe, SAN, which was breached to amount to contempt of court.”
Pinheiro, however, commended Adedipe for taking the step to withdraw from the case, praying the court to vary the ruling on alleged misconduct levelled against the duo.
But Justice Nwite directed Pinheiro to file a formal application to the effect.
Consequently, he adjourned the case until Sept. 25 for arraignment.
