When the case came up in court on Wednesday, the prosecuting counsel for the EFCC, Mr M.S. Abubakar, vehemently opposed the application that Justice Idris should conclude the case, insisting that it had to be transferred to another judge to start afresh.
The Economic and Financial Crimes Commission on Thursday opposed the bid for continuation of trial in the case of the senator representing Delta North in the National Assembly, Peter Nwaoboshi, who was charged with an alleged fraud of N322m.
The senator, along with two companies, was arraigned on April 25, 2018 before the Federal High Court in Lagos.
His case was being handled by Justice Mohammed Idris and the prosecution had already called two of his proposed six witnesses in the case.
However, Justice Idris was elevated to the Court of Appeal in June.
Not wanting the case to be transferred to another judge, which means it will start afresh, the defence counsel — Mrs Valerie Azinge (SAN), Mr C.A. Nmakwe and Mr I.O. Aniakor — wrote to the President of the Court of Appeal, Justice Zainab Bulkachuwa, requesting that Justice Idris be given a fiat to conclude the case despite that he had been elevated.
The defence counsel made the request pursuant to Section 396(7) of the Administration of Criminal Justice Act, 2015, which permits a judge elevated to the Court of Appeal to return to the high court to conclude partly-heard criminal cases.
The novel provision of the law, introduced in 2015, was to change the old trend where criminal cases had to always be transferred to another judge to start afresh — no matter how far the case had gone — upon the elevation of the judge handling the case.
In response to the application by Nwaoboshi’s lawyer, the Appeal Court President granted Justice Idris a fiat to return to the high court to conclude the case.
But when the case came up in court on Wednesday, the prosecuting counsel for the EFCC, Mr M.S. Abubakar, vehemently opposed the application that Justice Idris should conclude the case, insisting that it had to be transferred to another judge to start afresh.
Justice Idris adjourned till Thursday to take Abubakar’s objection to the continuation of the case by him.
At Thursday's proceedings, the prosecutor contended that Nwaoboshi’s case did not fall within Section 494 of the ACJA’s definition of partly-heard criminal cases that an elevated judge could continue.
According to him, Section 494 of the ACJA defined a partly-heard criminal case, that an elevated judge could continue, as one in which the prosecution has called all his witnesses and closed its case.
Abubakar argued that in Nwaoboshi’s case, the prosecution had not closed its case, as it had only called two out of his six listed witnesses.
He urged Justice Idris not to proceed with the case.
“Section 396(7) is grossly unconstitutional. My Lord has ceased to be a judge of the Federal High Court, that fiat is unconstitutional," he said. "Counsel cannot, by consent, confer jurisdiction on the court where the court has none."
But Nwaoboshi’s lawyer, Azinge said she found it surprising that the EFCC, which had always accused the defence of employing dilatory tactics to frustrate cases, was kicking against expeditious trial of the senator’s case.
She reminded the judge that Section 396(7) was introduced to cure a defect in the country’s administration of criminal justice system.
"In this case, a fiat has been issued and My Lord has come down from the Court of Appeal; this is the first time this is happening in the history of this country," Azinge said.
“Arising from the clamour for expeditious trial of criminal cases by both the Bar and the bench, the legislature passed the ACJA; the legislators bought into our cry. Lawyers should not throw this away. In fact, I believe that this law should be exported to the rest of Africa.”
Backing her, the second defence counsel, Nmakwe, called the judge’s attention to Section 1 of the ACJA, which said its sole purpose was to achieve speedy dispensation of justice.
“This enactment calls for judicial activism,” Nmakwe said, urging the judge to proceed with the case.
After listening to the two sides, Justice Idris adjourned till July 31, 2018 for ruling.