The corruption case against the former Chairman of the House of Representatives Ad hoc Committee on Fuel Subsidy, Mr. Farouk Lawan, has been transferred to a fourth judge to start afresh after four years, GBENRO ADEOYE writes about the delay.
If there is one thing that readily comes to mind about the Nigerian justice system, it is that its wheels grind really slowly and oftentimes, instead of grinding finely, the job is done rather crudely.
In 2015, Justice Fred Oho of the Delta State High Court put the figure of pending cases in Nigerian courts at over five million in a researched paper on ‘Religious Doctrines, The Courts and Alternative Dispute Resolutions’.
And many reasons have been blamed for this situation including cumbersome system and overburdened courts and judges.
Sometimes, strike actions by judicial workers also lead to the closure of courts and the disruption of the legal system. This is aside from the judiciary’s long vacation and other breaks.
But one major factor identified by legal experts as also contributing to delays in the prosecution of cases, especially criminal matters, is the use of technicalities by lawyers to buy time for their clients.
A Human Rights Watch in a 2011 paper titled, ‘Corruption on Trial? The Record of Nigeria’s Economic and Financial Crimes Commission’, described lawyers’ tactics at delaying trials as a major threat to the country’s fight against corruption.
The report also noted that many high-profile corruption cases have been pending for years, as far back as 2007.
President Muhammadu Buhari had at the 55th Annual General Conference of the Nigerian Bar Association in Abuja in 2015 also frowned on tactics by some lawyers to intentionally frustrate the justice system, saying the country needs “lawyers who will not frustrate the course of justice, even though they defend their clients with all legitimate means and resources.”
“Nigeria needs ethical lawyers who always keep the end of justice in mind and will never sacrifice the integrity of the legal system to cover the misdeeds of their clients, no matter how lucrative the brief may be,” Buhari had added.
One corruption case that has dragged on for a while is that of the former Chairman of the House of Representatives Ad hoc Committee on Fuel Subsidy, Mr. Farouk Lawan, who is standing trial on seven counts for allegedly obtaining $500,000 bribe from Mr. Femi Otedola, the Chairman of Forte Oil.
Lawan and Boniface Emenalo (the clerk of the then Farouk-led committee) were first arraigned before a Federal Capital Territory High Court in February 2013, but just this week, the case suffered another setback after it was transferred to the fourth judge. The two were accused of obtaining bribe from Otedola in order to doctor the committee’s report in favour of one of his companies, Zenon Oil and Gas Limited.
Emenalo was separately accused of receiving $120,000 as gratification from Otedola for the same purpose.
The $620,000 was allegedly a part payment of the $3m demanded by the duo from Otedola in April 2012 to remove his firm from the list of oil companies indicted for fuel subsidy scam and the prosecution has been relying on a video evidence to strengthen its case.
But between 2013 and now, the case has moved from Justice Mudashiru Oniyangi, before whom Lawan was first arraigned to Justice Adebukola Banjoko, Justice Angela Otaluka and Justice Yusuf Halilu.
And with the recent transfer of the case to Justice Halilu, the case has to start from the beginning with fresh arraignments of the defendants before the new judge.
Before the latest development, the prosecution had almost wrapped up its argument with Otedola left as its last witness.
Meanwhile, the case was first taken away from the primary judge, Oniyangi, after he was elevated to the Court of Appeal.
Then on November 18, 2014, the second trial judge, Banjoko, withdrew from the case over allegations of the likelihood of bias levelled against her by Lawan. He had in a petition to the Chief Judge of the FCT High Court, seeking reassignment of the case to another judge, stated that Justice Banjoko was likely to be biased.
Lawan had alleged that the judge and her family were close to Otedola.
In addition, Lawan, had also, through his counsel, Chief Mike Ozekhome (SAN), filed a motion before Justice Banjoko, asking her to disqualify herself from further handling the case on the same grounds of likelihood of bias.
That was how the case landed on Justice Otaluka’s table.
However, documents obtained by our reporter from the Federal Ministry of Justice showed that the recent decision by the Chief Judge of the High Court of the Federal Capital Territory, Justice Ishaq Bello, to reassign the case from Otaluka to another judge was connected with another petition by Lawan, dated March 21, 2017.
Lawan, had in the recent petition signed by him, stated that he “no longer had faith and confidence in Justice Angela O. Otaluka to dispense justice in this instant charge.”
According to Lawan, Justice Otaluka had refused to take his motion challenging the court’s jurisdiction on February 9, 2017, and that it had ordered the prosecution to call its witnesses and proceeded with the trial, even though his (Lawan’s) motion challenging her jurisdiction was still pending.
Among other allegations, Lawan had also stated that the judge had on three occasions since the commencement of the trial, “displayed a high level of bias which I verily believe has prejudiced my trial.”
In the course of the trial, the private prosecuting counsel, Chief Adegboyega Awomolo (SAN), had written to the Attorney General of the Federation, Abubakar Malami, describing Lawan as being “notorious for making undeserved allegations when he feels he is likely to lose.”
He also described the situation as “frustrating”, “discouraging” and “oppressive”.
A Lagos-based lawyer, Mr. Onyekachi Ubani, said the Administration and Criminal Justice Act of 2015 was introduced to quicken the prosecution of legal matters, but that as good as it is, many factors still create loopholes in the system.
Ubani expressed frustration that “almost 90 per cent of criminal cases in the country are struck out for want of diligent prosecution, adding that no serious investor will invest in a country where legal disputes are not resolved within the acceptable time limit.”
Explaining the ACJ Act, Ubani said, “If a case starts, you have to wait until the entire process runs through before you can appeal, both on the interlocutory and substantive judgments. One of its provisions is that there shouldn’t be any stay of proceedings in criminal matters.
“It is against interlocutory appeals stalling proceedings at the lower courts endlessly and sometimes by the time it gets to the Supreme Court and comes back to the trial court, the witnesses may no longer be willing to give evidence, most of them would have died or intimidated not to give evidence. Those are some of the reasons why we (lawyers) don’t succeed in getting convictions.
“Sometimes the witnesses are no longer available, especially the investigating police officer would have been transferred outside the jurisdiction and you will be the one to sponsor their trips from Maiduguri, for instance, to give evidence in Lagos. There are a lot of issues that require reforms but they have to be gradual.
“So transferring IPOs is also an issue. We should find a way of dealing with it. There is also the case of judges handling criminal matters who are transferred when the case is nearing the end. A new judge takes over and the case starts afresh. If a judge is transferred, he must be allowed to conclude the criminal matter he is handling before going to his new jurisdiction where he is posted to.”
Interestingly, Lawan’s case is just one out of many high profile cases that have dragged on for long for one reason or the other.
For instance, former Plateau State Governor, Chief Joshua Dariye, has a running battle with the EFCC. The anti-graft agency in 2007 preferred 23 counts of money laundering against Dariye, involving alleged diversion of about N1.2bn ecological funds belonging to the state government.
Dariye first appeared before a Federal High Court, Abuja in July 2007, but later filed a motion praying the court to quash the charges against him. The request was turned down on December 10, 2007, but he proceeded on appeal, which also suffered the same fate in June 2010 and later at the Supreme Court on February 27, 2015.
In 2016, Dariye also sought a motion seeking the disqualification of Justice Banjoko from the case, accusing her of “manifest and undisguised bias”, but it was thrown out in March 2017.
Other similar high-profile cases include those of former governors of Jigawa, Adamawa, Oyo, Abia, and Ogun states, Saminu Turaki, Boni Haruna, Adebayo Alao-Akala, Orji Uzor Kalu and Gbenga Daniel, whose cases have been pending since they were first arraigned in court in 2007, 2007, 2011, 2007 and 2011 respectively.
Ubani, however, accused some judges of indulging senior lawyers, who frustrate the legal process with unnecessary technicalities.
He said, “We need more reforms in terms of changing our laws and also changing our behaviours. Most lawyers, because they are SANs, also apply for adjournments and they get them as if it is their rights. So our judges sometimes indulge these people. Our judges must make sure criminal cases are concluded within an acceptable period of time.
“Most of those cases that have been lingering for a long time started before the ACJ Act came into effect. One of its provisions is that there shouldn’t be any stay of proceedings in criminal matters. But some judges did not understand some of the provisions of the Act; some were still staying proceedings and entertaining interlocutory appeals here and there.
“But last week, the Supreme Court made a final pronouncement that on criminal matters, the court will no longer entertain interlocutory appeals being used to frustrate trial process, so the situation should change from now on.”
Another lawyer, Mr. Yemi Adetoyinbo, however, said there would always be room for technicalities in law and that it is normal for judges to withdraw from handling a case when they feel connected to one of the parties involved or for a case to be reassigned to another judge for many reasons, but noted that “it is equally instructive to remember that justice delayed is justice denied.”
Adetoyinbo noted that a middle ground should be found on the matter, saying, “The essence of technicalities in the legal system is essential. I was there when President Buhari addressed lawyers and told us not to be using technicalities. But legal technicalities will always be there.
“Since we are thinking of reformation, ACJ Act could be amended or there could be more sensitisation about it. For a case that has dragged on for too long, the presiding judge could order that there should be accelerated hearing and where one judge stops before being transferred, the other judge could continue from there.
“If evidence has been taken and some witnesses have been questioned, then the new judge can move to other witnesses so that the essence of justice is not obliterated.
“But still, nobody can take away fair hearing. Lawyers delay by talking about stay of proceedings, fresh compilation of records and so on. But at the same time, when something is accelerated too much, it may be dangerous. When you run too fast, you may run into a ditch. So we also have to be careful.”
Another legal practitioner, Mr. Tunde Esan, who blamed anti-graft agencies like the EFCC and the Independent Corrupt Practices and Other Related Offences Commission for some of the delays in the trial of criminal cases, commended the introduction of the ACJ Act.
He, however, called for some caution over the call for speedy trial of criminal cases.
He said, “Most of the problem with the high profile cases is that there is a lot of media trial. In other countries, if it takes five or 10 years to gather enough evidence, they will wait. They don’t go to court to file 200 charges out of which none will stick.
“It doesn’t matter how heinous the crime you may think an accused person has committed or how much noise you make; under the Nigerian law, he is innocent until you prove him guilty. An accused person can go to court and not say a word. It is not his duty to prove his innocence; it is your duty to prove he is guilty.
“The ACJ Act is beautiful as it wants to fast track the process of prosecution but it doesn’t matter how much you want to do that, the aim of justice must be satisfied. People are at liberty to take advantage of every substantive law to get themselves off the hook.
“Anyone accused of a crime should be given all the necessary time and opportunity to defend himself because it is about his liberty or his life and we can’t sacrifice that on the altar of speed.”