By Jude-Ken Ojinnaka
A Federal High Court sitting in Lagos has fixed Thursday, August 17 for ruling on whether the Federal Government in the trial of suspended Central Bank of Nigeria Governor, Godwin Emefiele, can withdraw the 2-counts charge of possession of firearms and ammunition preferred against him on July 25 when he was arraigned by the office of the Attorney-General of the Federation.
Justice Nicholas Oweibo fixed the date after listening to the arguments of the Director of Public Prosecution counsel of the Ministry of Justice, Mohammed Bakodo Abubakar and Emefiele’s counsel Joseph Daudu (SAN).
On the last adjourned date the matter was slated for Tuesday, August 15, 2023, for the hearing of pending applications seeking to stay the execution of the bail and application compelling the complainant to obey the court orders.
When the matter was called up for hearing of applications from both parties on Tuesday as was adjourned last week, the prosecution led by the Director of Public Prosecution (DPP) in the Federal Ministry of Justice, Mr Abubakar told the court presided over by Justice Nicholas Oweibo that the prosecution applies to withdraw the 2-counts charge against Godwin Emefiele for full investigation.
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He stated that the application was informed by emerging facts and for circumstances that need further investigations and urged the court to grant the application.
Abubakar said the application was made pursuant to Sections 174 (1) (c) (2) and 108 (2) (4
However, counsel for Emefiele, Mr Joseph Daudu (SAN) opposed the oral application for withdrawal of the charge by the prosecution. He argued that such an application should be written and not oral.
Besides, Daudu argued that the prosecution cannot seek to withdraw the charge when they have consistently disobeyed the order of the court granting Emefiele bail and remanding him in the Nigerian Correctional Services facility.
“The prosecution is in disobedience of court order of July 25 and therefore is not competent to seek another court order to withdraw the charge against the defendant.
“The government was in disobedience of the court’s order granting Emefiele bail, its application could not be taken.”
Daudu said: “There is no application before the court, there is no doubt and I am not disputing the facts that the state can withdraw any charge before the court against any person.”
Daudu argued that in the past there was no Attorney General of the Federation who could handle the case.
He cited Section 174 (3) of the Constitution that the AGF has power that can be devoid to any of its officers.
“We have an application that the AGF has flouted the court order which says the respondent/ defendant should be remanded at the Nigeria Correctional Service granted but they are not obeying the order.
“The court granted order of substituted service to be published in three National dailies and after they brought an application of stay of execution of the bail and we say unless they obey that order Section 174 (1) can only be by nolle prosequi
“It must be in writing, I have never heard of the withdrawal of a case without a nolle prosequi. For the interest of justice we need to prevent abuse of legal processes.
” Every application they brought against any citizen of this country under Section 174, is nolle prosequi. The government cannot come before the court orally for that, it’s to be by “nolle prosequi”, at the point in term there is no application before the court.
“I urge the court to reject the application and order the learned DPP to go on with today’s business,” he said.
While responding to the defence argument, the DPP said nolle prosequi was different from withdrawal and cited Section 108 of the Administration of Criminal Justice Law 2015.
The Director of Public Prosecution, (DPP) of the Federation said “We are withdrawing the charge because of emerging facts pending further investigations at the end of which we will probably come back with more charges and more counts.
In our submissions ,”we distinguished Sections 107 from 108. While Section 107 provides that the application for withdrawal shall be in writing, Section 108 is silent on the mode, it gives the prosecutor the authority to apply to the judge, and our application was made pursuant to Section 108.
On the issue of disobedience to court order, he said “ we are not in disobedience of court order. When the court rendered its ruling granting the defendant, it was in two legs. He was granted bail and to be remanded in the custody of the Correctional Service pending the fulfilment of bail conditions.
“You will agree that there are administrative processes and protocols for handing over a detainee from one agency to another and that is what the State Services had to do, and that was what occasioned the delay in transferring him.
On the basis of that is the fact that he is also being investigated for other offences, and there is also another pending charge at the FCT High Court.
“So all these combined to slow down the process of complying with the order of the court. The new charge may contain unlawful possession of firearms among others.”
Speaking later outside the court, the DPP said the government has filed fresh charges against Emefiele in Abuja. “We have filed a 20-count charge against the defendant, which bothers on unlawful procurement under the ICPC Act, and taking unlawful advantage.
Speaking with journalists after the proceedings the DPP said, “We are withdrawing the charge because of emerging facts pending further investigations at the end of which we will probably come back with more charges and more counts.
“The new charge may contain unlawful possession of firearms among others,” he said.
Recall that Emefiele in a Motion on Notice dated August 7, 2023, is asking for an order stopping the complainant from further prosecuting the instant charge or any other charge against him or seeking any form of indulgence before the court, inclusive of the application to grant leave to appeal against the order granting the appellant bail and other ancillary orders.
An order discharging the defendant/ applicant from the instant charge which can not be lawfully prosecuted by the complainant who is in brazen disobedience of subsisting orders of the court made on July 25, 2023.
Emefiele further asked the court for an order to stay further proceedings in the present charge until he exhausts all the remedies available to him in law to compel the government to obey the order of the court admitting him to bail or remanding him in the custody of the Nigerian Correctional Centre until he perfects his bail terms.
The defendant through his team of counsel led by Senior Advocate of Nigeria, Joseph Daudu, filed the application before the vacation judge, Justice Oweibo who had admitted him to bail after he was arraigned.
The application was filed pursuant to Section 6(6)(a) of the 1999 Constitution (as amended), relevant sections of the Administration of Criminal Justice Act, 2015 and under the inherent powers of the court.
Emefiele further sought for the orders on the ground that until set aside, an order of court remains valid for all intents and purposes.
“That the complainant having brazenly defied the orders of court made in July 25, is in contempt of the proceedings of the court.
“ Until the complainant complies with the afore described subsisting orders of the court, it can not continue to lawfully prosecute the charge neither can it be afforded any right of audience in any court in Nigeria. “
He also sought to invoke the jurisdiction of the court to enforce its orders so as not to be seen as a toothless bulldog or paper tiger.
Besides, the applicant further stated that the processes seek to preserve and protect the efficacy, majesty and integrity of the court as well as the rule of law in our democracy.
In its Motion of Notice, the Federal Government is seeking inter alia: leave to appeal against the ruling of bail on the ground of mixed law and facts and a stay of the order placing him in the custody of the Nigerian Correctional Services.
Emefiele in a counter affidavit opposing the Motion on Notice , deposed to by a lawyer Adeogun Samuel in the chambers of one of the defendant’s legal team Victor Opara (SAN), stated that paragraphs 3g to 3q and paragraphs 4, 5 and 6 of the affidavit in support of the Complainant/ Applicant’s application are either false or untrue and are hereby denied.
He stated that contrary to the depositions in the affidavit in support of the Complainant/ Applicant’s application, the Complainant/ Applicant was served with the summons for bail, filed by counsel on behalf of the defendant/ Respondent.
The deponent also stated that the complainant’s counsel, Federal Deputy Director of Public Prosecutions Nkeiru Jones-Nebo had admitted on record before the court on July 25, 2023, that although the office of the Attorney General was served, there was no occupant of the AGF’s office hence they did not see the application.
“That the court rejected the excuse given by the complainant for not filing their counter affidavit in a considered ruling the court directed the applicant to move its application (Summons for bail).
“That the complainant’s Applicant’s application dated August 3, 2023, is grossly incompetent and does not vest this court with jurisdiction to determine same.
“That pursuant to the incompetence of the application and ‘unless you comply with the orders of the court your application can no longer be heard’ has been filed and ought to take precedence to this application for leave to appeal and other ancillary prayers.
“That in the alternative the defendant states in opposition to the complainant’s afore described application as follows:” That there is no pending Appeal before this honourable court because the Notices of Appeal annexed to the application has not been filed.”
Emefiele was arraigned on July 25, 2023, before the court on two counts bordering on illegal possession of firearms.
The Federal Government said it found Emefiele in possession of a single-barrel shotgun and 123 rounds of live ammunition without licences.
But the defendant pleaded not guilty and was granted N20 million bail with one surety in like sum.
On August 1, 2023, Justice Nicholas Oweibo had granted Emefiele leave to serve the Director General, Department of State Services, Mr Yusuf Bichi, through substituted service the order of the court admitting him to bail and directing his remand in the custody of the Nigerian Correctional Service.