The Economic and Financial Crimes Commission, EFCC on November 23, 2012,
recorded a major victory in the trial of former Kogi State governor, Abubakar
Audu, when the Supreme Court, in a landmark ruling, dismissed the ex-governor’s
appeal, thereby clearing the way for his fresh arraignment.
Audu was originally arraigned on December 1, 2006, on an 80 criminal
count charge of fraud and embezzlement of public fund, to the tune of over N4
billion, while he was governor of Kogi State between 1999 and 2003.
The Commission had cause the issuance of nolle prosequi by the
former Attorney General of Kogi state, Dr. John Alewo Agbonika and the
Attorney General of the Federation, Chief Bayo Ojo on February 8,
2007 for the case to be discontinued at the Kogi State High Court as the
Commission claimed to have lost faith in the handling of the matter by the
State High Court.
“In my capacity as the AG of Kogi state in collaboration with the AG of
the Federation and by virtue of the power vested in me by Section 211 of the
Constitution of the Federal Republic of Nigeria 1999 and Section 253 of the CPC
and all the powers enabling me in that behalf, I Dr. John Alewo Agbonika hereby
inform this Hon. Court that I no longer intend to continue the prosecution of
this case in collaboration with the AG of the Federation to whom I had given a
fiat to prosecute this case”, Agbonika, the former Kogi State Attorney
General said.
But rather than discontinue the matter in the spirit of the nolle
prosequi, the trial judge, Justice Medupin, went ahead as he further
referred two questions to the Court of Appeal for determination.
In a judgement delivered by Justice Bode Rhodes-Vivour, the
Supreme Court held that the Court of Appeal was wrong to consider the questions
referred to it for determination after being aware from the records of Appeal
that a nolle prosequi had been filed.
“This is so because there is/was nothing before the trial court, so
there would be nothing for the Court of appeal to send back. It amounted to an
academic exercise for the Court of appeal to waste judicial time considering
questions from a case that is no longer in existence. There was no longer live
issue to be considered by the Court of appeal in view of nolle prosequi
filed in the trial court”, the Supreme Court ruled.
Part of the setback suffered by the case was the filling of several
applications for stay of proceedings at the high court pending the final
determination of the appeal. Audu had on December 12, 2011, through his lead
counsel, Mike Ozekhome, SAN, filed the stay of proceedings motion supported by
11-paragraph Affidavit. This was 26 clear days after the Supreme Court of
Nigeria on November 16, 2011, struck out a similar application he filed on
January 24, 2011.
It would be recalled that Justice Husseini, in his ruling of June 10,
2011, held that since the matter was starting de novo, since he was
newly transferred to the court, “the starting point was the re-arraignment of
the accused (ex- governor Abubakar Audu) by taking his plea afresh”, the judge
said.
This development also led the accused to proceed on appeal and filed
motion for a stay of proceedings. A third stay of proceedings which motion, the
accused filed, is in relation to his appeal before the Court of Appeal. “The
case at the Court of Appeal is attacking the jurisdiction of the court to
re-arraign the accused person; that motion is pending. The appellate courts are
obliged to take these cases separately and determine its merit and demerit, no
matter how frivolous it is. Like Pontius Pilate, wash your hands off until the
Court of Appeal and the Supreme Court concludes this case”, Ozekhome told the
court.
Five justices, led by the Chief Justice of Nigeria, Justice Dahiru
Musdapher, sat in chambers and came up with their ruling, a copy of which was
presented before Justice Saidu Tanko Husseini of High Court of Kogi State on
December 9, 2011 when the case came up. But Ozekhome, SAN, had argued against
the presentation of the ruling by prosecution counsel, Rotimi Jacobs, as he
said that in his about 30 years experience at the bar, he was unaware of such a
legal jargon as “sitting in chambers”.
He described the Supreme Court’s ruling as a possible forgery which he
must verify. The judge obliged his prayers and adjourned till December 22,
2011. But three days after, (December 12, 2011), he filed another stay of
proceedings at the High Court.
Count one of the 80 count charges reads “that you, Prince Abubakar Audu
on or about 6th day of Feb 2001 at Kogi State Judicial Div. by false pretence
and with intent to fraud obtained from Kogi State Directorate of Rural
Development, the sum of N6, 263.000 purporting same to be part payment made to
Leo Flinch Nig. Ltd in respect of a contract allegedly awarded by Kogi State
Directorate of Rural Development to the said Leo Flinch Nig. Ltd and you
thereby committed an offence punishable under section 1 (3) of the Advance Fee
fraud and other related offences Act 13 of 1995 as amended by Act No 62 of
1999”.
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