Controversies, intrigues in ex-gov Suswam’s N3bn fraud trial

ADE ADESOMOJU, of Punch in this piece, writes on the controversies and intrigues trailing a recent decision of the Court of Appeal which ordered the return of the trial of a former Governor of Benue State Gabriel Suswam to a judge who had voluntarily recused himself.

The issue of which judge should preside over the trial of a former governor of Benue State, Gabriel Suswam, is a raging question that that only the Supreme Court will provide the final answer to.

Both the prosecution and the defence have filed an appeal and a cross-appeal against the different parts of the February 19, 2020 judgment of the Court of Appeal on the issue.

A three-man panel of the Court of Appeal, led by Justice Stephen Adah, in the disputed judgment, ordered the return of the case from Justice Okon Abang of the Federal High Court in Abuja to Justice Ahmed Mohammed, who was originally handling the case before he recused himself.

The Economic and Financial Crimes Commission had in November 2015 arraigned Suswam before Justice Mohammed on nine counts, wherein he was accused of laundering N3.1bn belonging to Benue State.

Suswam, who is now the Senator representing Benue North-East, was arraigned alongside his then Commissioner of Finance, Omodachi Okolobia.

The prosecution alleged that between August 8 and October 30, 2014, in Abuja the two men used a company, Elixir Securities Ltd, to divert a total of N3,111,008,018.51 allegedly stolen from the proceeds of the sale of shares owned by the Benue State Government and Benue Investment and Property Company Limited.

They both denied both charges.

Trial commenced on December 8, 2015.

On June 6, 2016, Justice Mohammed withdrew from the case following a May 27, 2016 online publication by SaharaReporters, accusing him of taking bribes from Suswam in exchange for a favourable judgment at the end of the trial.

This was despite the fact that both the prosecuting counsel, Mr Rotimi Jacobs (SAN), and the defence team, led by Mr Joseph Daudu (SAN), expressed confidence in the judge.

They had urged the judge to disregard the SaharaReporters’ story and continue with the case.

Since the judge did not heed their pleas, they approached the then Chief Judge of the Federal High Court, Justice Ibrahim Auta (retd.), who ordered the judge to continue the case.

But as the case progressed in Justice Mohammed’s court, SaharaReporters on June 4, 2019 published another story alleging that Suswam again bribed the judge with N500m equivalent of foreign currency.

This time, Justice Mohammed, without hearing from the parties to the case, withdrew from the case and returned the case file to the then Chief Judge of the court, Justice Adamu Abdulkafarati (retd.), via a letter dated July 5, 2019.

The new Chief Judge of the court, Justice John Tsoho, subsequently reassigned the case to Justice Okon Abang.

Suswam protested the reassignment of the case to Justice Abang.

He argued through his lawyer, Chinelo Ogbozor, that Justice Abang lacked jurisdiction to hear the case on the grounds that the Chief Judge lacked the power to reassign a part-heard case to a new judge.

But in his ruling delivered on September 30, 2019, Justice Abang sustained the arguments put forward by the prosecuting counsel, Leke Atolagbe, who urged the judge to assume jurisdiction and order the defendants to be arraigned.

Justice Abang, in dismissing Suswam’s application, noted that the former judge Justice Mohammed had, in a letter of July 5, 2019, detailed the reasons why he withdrew from the case, adding that he could not reverse the administrative decision of the Chief Judge, who re-assigned the case to him.

Displeased with the decision, Suswam appealed to the Court of Appeal seeking an order compelling the Chief Judge to withdraw the case from Justice Abang and return it to Justice Mohammed.

Notwithstanding the legal battle over which judge should handle the case, the case was making progress before Justice Abang.

Within four months of the commencement of the case in Justice Abang’s court, the prosecution had called four witnesses, the same number of witnesses the prosecution was able to call in the four years that the case was before Justice Mohammed.

The Court of Appeal also juxtaposed the progress the case recorded in the two courts.

Justice Emmanuel Agim, who delivered the lead judgment of the Court of Appeal, noted that Justice Mohammed “has persisted in unjustified reluctance and refusal to continue the trial of the case, and thereby abdicated his judicial duty”.

On the other hand, he said Justice Abang “has demonstrated a dispassionate and diligent commitment to the trial of the case with commendable judicial courage and comportment”.

But despite this sharp contrast, the Court of Appeal ordered Justice Abang to withdraw from the case and ordered Justice Mohammed to continue with it “in an accelerated manner”.

Reasons given by the appellate court for its decision was among others, that Justice Mohammed’s “recusal from trying the case is not in accordance with law and would not serve the ends of justice”.

Justice Agim added that Justice Mohammed’s unilateral decision to recuse himself from the case without hearing the parties was a violation of the rights of the parties.

The Court of Appeal held, “As it is, the failure of Justice A.R. Mohammed to give the parties the opportunity to be heard on the need for his recusal or withdrawal from continuing the trial of the case before he recused himself therefrom and returned the case file to the Chief Judge for reassignment to another judge for trial de novo (afresh), violates the fundamental rights of the parties given to them by Section 36(1) of the 1999 Constitution.

“They were entitled to be heard before being deprived their right to the progression of the trial proceedings that had reached an advanced stage and being imposed with the obligation to start the trial afresh and suffer more financial and other costs than they would have suffered if the trial had continued before Justice A.R. Mohammed.

“The criminal trial having commenced and reached an advanced stage, the parties therein had acquired a right to the progression and continuation of the trial.”

Justice Agim also dismissed the reason given by Justice Mohammed for his recusal.

He said, “Allegations in an online news medium that in June 2019, the judge trying the criminal case had been bribed with foreign currency in the sum equivalent to N500m by the appellant to quash the charges against him when it comes up on July 9 and 10, 2019 which allegation was not made by any of the parties to the case and had been held by the same judge to be false, spurious and absurd, not being established, remains mere allegation, do not show the existence of a reasonably real likelihood that the judge would be biased or partial in the trial of the case.”

He noted that “the fear the allegation has generated in the mind of the judge cannot be valid bases for the judge to abandon his judicial duty to try the case by recusing himself from trying the case”.

He added that “the fear nursed by the judge is whimsical and baseless”, as he noted that “the law has established objective criteria on the nature of the allegations and expressions of lack of confidence in the impartiality of the judge can result in a judge recusing himself or herself from hearing or continuing the hearing of a case”.

While noting that there could be genuine grounds for the Chief Judge to reassign a part-heard case to another judge, the Court of Appeal said such must be done with regard to the requirements of Section 98(1) and (2) of the Administration of Criminal Justice Act, both of which emphasise that it must serve the interest of justice.

But the Court of Appeal also validated Justice Abang’s reasoning to the effect that he had jurisdiction to hear the case, even though it was wrongly assigned to him.

“By virtue of the provision of Section 19(3) and (4) of the Federal High Court Act, Justice O.E. Abang was bound to comply with the directions of the Chief Judge reassigning the case to him for trial,” the appellate court held.

Both the prosecution and the defence are dissatisfied with various aspects of the Court of Appeal’s decision.

The prosecution has filed an appeal at the Supreme Court to challenge the order for the return of the file to Justice Mohammed.

It also filed an application before the Court of Appeal in Abuja seeking an injunction restraining the Chief Judge from resending the case back to Justice Mohammed until its appeal to the Supreme Court is heard and determined.

On his part, Suswam has also filed a cross-appeal, asking the apex court to hold that the Chief Judge of the Federal High Court “is absolutely prohibited by the provisions of section 98(2) of the ACJA 2015 from transferring his case from one judge to another” in cases in which witnesses have been called.

Since February 19, 2020 when the Court of Appeal delivered its judgment, the trial has been stalled before the Federal High Court.

As it is, it appears that only the pronouncement of the Supreme Court would end the controversies and complications that have arisen in the case.