The Economic and Financial Crimes Commission, EFCC, has described a motion on notice filed by ex-governor Abubakar Audu of Kogi State seeking for an order of Kogi State High Court to stay further proceedings in the N4 billion corruption charges against him as an abuse of court process.
Audu had on December 12, 2011, through his lead counsel, Mike Ozekhome, SAN, filed the 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.
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 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.
In reply to Audu’s latest motion for stay of proceedings, the EFCC, through its counsel, Jacobs, on December 22, 2011, filed a 20 paragraph counter Affidavit supported with written address in opposition to the accused’s motion. Also attached to the counter Affidavit was a Supreme Court ruling as Exhibits RJ1.
The EFCC says the High Court does not have the jurisdiction to hear the stay of proceedings motion, “same having already been decided upon by the SCN when the apex court refused stay of proceedings in this Honourable Court as shown in Exhibit RJ1. Therefore, by the principle of stare decisis, this Honourable Court and all other subordinate courts are bound by the decisions of the SCN”
The prosecution counsel further stated that “it is our humble submission that the contention of the Applicant that none of the parties were heard at the Supreme Court before giving the said ruling is unfounded as this Court does not have a business with whether or not the decision of the Supreme Court is right or wrong and can therefore not sit over same”.
Jacobs, in paragraph 12 and 13 of the Counter Affidavit in opposition to the accused motion, said the application is another ploy by the accused to further delay the commencement of trial in the case which started in 2006 with the series of applications he inured the court with. “In all the several applications, there is none that has been won by the accused”, he declared.
In paragraph 17 of the motion, the EFCC prayed the court to discountenance the motion as staying proceedings in the matter will cause further delay and hardship to the complainant, having been given a go ahead by the Supreme Court and since the matter has not been allowed to proceed to hearing since 2006 when it commenced.
It would be recalled that Justice Husseini, in his ruling of June 10, 2011, held that since the matter was starting de novo, the starting point was the re-arraignment of the accused (ex- governor Abubakar Audu) by taking his plea afresh.
This development 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.
After listening to all submissions by the prosecution and accused counsels, the court adjourned proceedings till January 24, 2012, for ruling and continuation of trial.
Audu was originally arraigned 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.