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Akingbola: Did Justice Archibong err over order on SANs?

By Innocent Anaba & Abdulwahab  Abdulah
Justice Charles Archibong of a Federal High Court, Lagos, stunned the Nigeria’s legal community, when on April 2,  barred the prosecution team in the Erastus Akingbola’s trial, comprising five Senior Advocates of Nigeria, from appearing before the court or another judge of the Federal High Court over the matter, which he described as “serious and professional incompetence” of the prosecution team.

Since the order, legal pundits and commentators have argued for and against the order of the judge.

Before the court reeled out its orders, it had earlier in its  ruling, allowed the prosecution to amend  the charges against Akingbola, though his counsel, Chief Felix Fagbohungbe, SAN, opposed the ground that the prosecution was employing a piece meal  approach  in its prosecution of the charges.

The court had urged Akingbola to take his plea on the new charge, before Chief Godwin Obla, for prosecution urged the court to take the application for stay of proceedings pending appeal on the court’s earlier decision.

When the court allowed him (Obla) to move the application for a stay, he turned around to ask for adjournment, which he said will enable him compile the record of the appeal, the prosecution filed on February 7, 2012.

Not satisfied with the turn of event, Justice Archibong, said the prosecution team were incompetent and abusing the court process.

The judge also noted that prosecution were not willing to commence the trial, hence the several applications they had brought to court at the detriment of the accused right of speedy trial and he subsequently dismissed the charge.

*Ibrahim Auta and J. Daudu SAN

The prosecution, it will be recalled had amended its charge against Akingbola three times before the same judge.

They had also written a petition against the judge to the National Judicial Council, NJC, alleging bias, while the current president of the Nigeria Bar Association, NBA, Mr. Joseph Daudu, SAN, had at one of the sittings walked out on the judge over  the ruling of the court.

It will suffice to give a brief history of the matter before the order. On December 1, 2009, the Economic and Financial Crimes Commission filed a 28-count charge against Akingbola at the Federal High Court, Lagos. On August 13, 2010, the accused person was arraigned before Justice Mohammed Idris and EFCC at the hearing, applied to substitute the 28-count charge with a 22 count charge.

The 22-count charge was read to the accused and he pleaded not guilty to every count of the charge. The matter was subsequently adjourned to August 23, on the ground that investigation had not been concluded.

The accused bail application was argued on August 25, 2010 and on August 30, 2010, Justice Idris granted him bail on terms.

On October 18, 2010, Chief Judge, Dan Abutu, now retired, re-assigned the case to Justice Archibong. EFCC filed an amended 22-count charge on October 29, 2010. On the same day, the accused person was arraigned before Justice Archibong, however, on that same day, the defence filed a preliminary objection, challenging the charge of January 26, 2010.

On September 28, 2011, when the matter came up, there was confusion as to the several applications pending in the court’s file and which of the charges to proceed on. The prosecution team also filed an application seeking an order of court disqualifying itself from further handling of proceedings.

The court held that there could be no progress until it determined what needed to be done. The court added that it needed time to go through its records as any attempt to proceed at that stage would amount to flying blind. Further hearing was adjourned till January 25, 2012

On that day, prosecution lead counsel, told the court that the defence had just served the prosecution with its counter-affidavit to its application dated September 28, 2011 and that they needed an adjournment to enable them respond appropriately. The judge, however, lambasted the defence counsel for waiting until that day to file and serve its counter-affidavit and adjourned till January 31, 2012.

On January 31, arguments were taken on the prosecution’s application for the judge to disqualify himself and the court delivered a ruling, dismissing the application.

The court agreed to take defence preliminary’s objection to the amendment of the 22- count charge to read 26-count, the court inquired if counsel was ready to argue same, but lead counsel to the prosecution noted that the business of the day was argument on the its application dated September 28, 2011, which the judge had ruled on.

The matter was again adjourned till February 9, 2012 for hearing of the defence’s preliminary objection.

On that day, as scheduled, arguments were taken on the preliminary objection and ruling reserved till April 2, 2012. On April 2, when the matter came up, prosecuting counsel, which had in a sister case against Akingbola before the Ikeja High Court, Lagos, at which it had vehemently opposed an application for stay of proceeding,  told the court that it had an application for stay of proceeding.

However, when the judge said that the application should be argued, prosecution said it wanted to finish its compilation of record of proceeding, which it will transmit to the appellate court and then file a further affidavit before moving the application for stay of proceeding.

An infuriated Justice Archibong, started writing his ruling, which he read immediately.

He held, “This prosecution team has chosen to pursue a campaign to scandalize the court, which amounts to serious and professional incompetence in the prosecution of the accused.

“This prosecution team or any part of it shall not be given further audience in this court in relation to the charges against the accused either before this presiding judge or any other judge of the Federal High Court, for  the reason, I have given in the foregoing.

“Furthermore, I take judicial notice that the accused herein is presently facing charges before the Lagos High Court emanating from his tenure as the Managing Director and Chief Executive Officer of the Intercontinental Bank Plc, the AGF may wish to regain control of this process and his untrammeled right to prosecute the accused in another charge, he chooses before any appropriate court, as he can of course do so at any time of his choosing.

“Meanwhile the prosecuting team presently employed, indulging in professional incompetence to the extreme had been unmindful of the accused right to have the case against him clearly stated. They have been dismissive of his right to a ‘speedy’ trial, which in reality should be the credible procedure.

“I therefore dismiss the charges amended or otherwise for this incompetence and abusive prosecuting team. I discharge  the accused accordingly and leave the AGF to consider  his options. This enrolled order shall be served to the AGF and  the prosecution  team.

“I shall be referring the  conduct of the learned senior advocates that led the prosecuting team to the  Legal Practitioners Privileges Committee, LPPC, for further consideration and determination of the issues raised. The record of this proceedings shall be forwarded to the AGF and the LLPC and this proceedings is at its end,” the court said.

The senior lawyers involved are Joseph Daudu; Dr Konyisola Ajayi; Danien Dodo; Emmanuel Ukala and Kola Awodein.

Meanwhile, reactions have continued to trail the court’s orders.

A retired judge of the Federal High Court, Justice Tajudeen Odunowo, said “I have not gone through the case in detail. But what I read in the newspapers, the judge was said to have barred the lawyers, including the SANs from appearing before him or any other judge of the court.

I do not think he has the power to make that kind of far reaching decision. If from what I gathered he had issues with the lawyers in the matter, what he should have done was to withdraw from the case so that unnecessary insinuations are not made.

I am not supporting the attitude of the prosecution, but the better thing was for the judge to withdraw from the matter. We know how some lawyers behave sometimes in some cases. He should have returned the case file to the Chief Judge of the court to re-assign to another judge. It is always best to err on the side of caution.”

A notable Senior Advocate who pleaded anonymity said, “I will prefer the National Judicial Council, NJC to carry out an audit on Justice Achibong and his pronouncements in court. They should find out whether he is suitable to continue to be a Judge of the High Court.

All his utterances, especially on the Senior Advocates was totally strange and it was uncalled for. There was an instance when he was lampooned by the Court of Appeal in the case FRN vs Daniel. In the case, the appeal court indicted him also.”

Dame Carol Ajie, a Constitutional and Human Rights Lawyer, said “Justice Charles Archibong’s decision on April 2, 2012, is historic in many ways. First time a sitting President of the Nigerian Bar Association and four of his colleagues, all Senior Advocates of Nigeria received judicial reprimand by a superior court of record and as we speak, they have not filed an appeal against His Lordship’s order, been scolded and sacked as “incompetent” and “lacking in skills” barred them from prosecuting Akingbola’s criminal matter in all divisions of the Federal High Court.

When NBA President Joseph Daudu SAN took this Akingbola’s brief after his election as President, I wrote to him not to do the case. I said he had appeared before Justice Awokulehin of the Federal High Court, Asaba to defend the former Governor of Delta State, Chief James Ibori on 107-count charge brought against him in 2007 by EFCC.

In 2009, Justice Awokulehin quashed the charges and discharged Ibori, need we say ‘thanks’ to Daudu?  My concern then was that Daudu SAN was a known defence counsel in that infamous case, and that he is not a Lawyer with a mind-set for sending bad boys to jail.

He aided them in escaping justice. Now it is so well established that a Southwark Court Judge in UK had sentenced Ibori to 13 years in prison for plundering N40 Billion of Delta State funds used to pay for his luxuriant behaviour; upon his plea of guilt.

So for many, there is no fiddle or dilly dally, Justice Archibong’s landmark ruling is clear and stands until set aside by the Appellate Court.”

Another lawyer, Mr. Jiti Ogunye said, “Judges in most times can only be seen and not be heard, except through their ruling, judgment, order or through their public lectures or publication as approved by relevant authority.

Against this background, it is agreed that  Judges have wide latitude to use their powers not only to determine the cases before them, also to make commentary, not only on the conduct of parties or their lawyers, but certain practices in the court.

That is why Judges are regarded as persons who use law for social engineering. I am familiar with judgment where-in the court made wide ranging comment unsavoury conducts of litigants as well as lawyers regarded as unprofessional.

In case of the Ondo Attorney-General Vs Attorney General of the Federation, where the state challenged the formulation of the ICPC law. The Supreme Court per Uwais rejected the appeal and said corruption has reached its hydra-headed level in Nigeria.

So, if there had been an altercation between the Judge and the lawyers representing parties in court, while the Judge has the power to rectify or lampoon lawyers for conduct that fell below standard.  However, we had expected the Judge in this case to exercise his power with restrain and the judicial dignity in such way that his personality as a Judge will not become issue in the case, either before him or in appeal.

Because if this is not done, the Judge stand the risk of being accused of bias. Therefore, the dignity and majesty of the court of justice will not be negatively affected. However, I am not one that will argue sheepishly and speedily  in the defence of any SAN that it should not be lampooned by a Judge.

Finally, I agreed with the Judge that the culture of AGF sitting down, distributing brief to his fellow SANs is unethical while the ministry of Justice lawyers are lying idle and not doing their job. The practice is unethical and outrageous. That is corruption. What will be five SANs doing sitting in a case?


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