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 ofnolle 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 JusticeBode 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 startingde 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”.