Justice Hyeladzira Ajiya Nganjiwa of the Federal High Court, Bayelsa Division, has asked the Chief Judge of Lagos state, Justice Opeyemi Oke, to transfer his case file to another judge for trial.
In the alternative, he sought a court order dismissing the charge which he said constitute double jeopardy against him.
At resumed proceedings Monday, Nganjiwa through his counsel, Chief Robert Clarke (SAN), accused the trial judge of bias in favour of the prosecution.
His counsel, Chief Clarke told the court that he has written a letter dated November 10, 2017 to the Administrative Judge seeking transfer of the matter to another judge.
He said he has also filed an application objecting to trial of his client before the Judge.
The prosecutor of the EFCC, Wahab Shittu, at this stage said he was not aware of the defendant’s application and was subsequently served in the court.
In the letter, Clarke said “the trial judge is presiding over the charge number LD/2544/16, FRN v Rickey Mustapha Tarfa and the counts, facts of the charge
against my client are substantially similar to the counts/facts of the charge against Ricky Mustapha Tarfa.
“In essence, my Lord, I am of the view that opinion formed by the learned trial judge as regards charge LD/2544/16 will invariably lead to same opinion in the information against my client.
“My Lord, as it stands, fair trial in the eye of a reasonable man is likely to be tainted as there is likely of bias”.
Asked by the court to explain what he meant by bias, Clarke maintained that there is a presumption of bias by the trial judge in favour of the prosecution.
“It is for the judge to decide if a prima facie case has been established against the defendant. But in the case, it is the Director of Public Prosecution (DPP) that is saying a prima facie case has been established.
Clarke also told the court that their application before the court was brought pursuant to section 36(9) of the constitution and sections 173,175 and 216 of ACJL of Lagos State 2011.
He said their application is supported by an affidavit containing all the facts of bias against his client.
Clarke stated further: “Our main request is for this court to return the case file to the Chief Judge for purposes of re-assignment to another judge”, he said.
In the alternative, he sought an order dismissing the charge on the ground that “the charge as filed constitutes double jeopardy against the defendant “.
Clarke said: “there is a sister case before this court containing virtually all the allegations and particulars in this new case.
“You cannot make up your mind in one particular case and change it in another case. We are not afraid that justice must be done, but justice must be seen to have been done”
In his response, EFCC prosecutor, Shittu described the application as a attempt to frustrate trial.
He said the application was also contentious and should not be allowed.
Shittu reminded the court of past attempts by defence to stall trial.
“Your lordship, you cannot stay proceedings in a criminal matter.
“The applicant is imputing bias merely on speculative conclusions that a case is pending before your lordship”,Shittu argued that there was no way the matter in the other matter involving Ricky Tarfa can influence the mattet before the court as no decision has been taken on it.
He also asked the court to take judicial notice of the fact that the defendant is not on a joint trial with Tarfa in the other case NIR a witness in the matter.
He contended that the defence has failed to lead evidence that the court will be bias in the matter.
“The defence has not shown that your lordship has particular interest in the matter and that your lordship has no relation with the defendant.
“Your lordship has not exhibited any partisanship. The court is only exercising judicial powers in relation to the matter.
“It is speculative to say that the judge should hands off. The circumstances are different. The particulars are different.
“There is no ground for the application from all parameters. So this application is premature. Anybody alleging bias must provide all the particulars, “he maintained.
At this stage, Chief Clarke asked the court for a short adjournment to enable the Administrative Judge take decision on their letter, ” after all no court can transfer a judge without the approval of the Chief Judge “.
Justice Akintoye has reserved ruling in the matter till November 22.