By Ikechukwu Nnochiri

It is an elementary maxim in law that ‘He who goes to equity must do so with clean hands’! It is equally trite law that ‘he who allege, should not only be able to prove his allegation beyond every reasonable doubt, but should equally establish a prima-facie nexus between the accused person and the alleged offence committed.

Nevertheless, a situation where an accused person raises fundamental allegations against his accuser, leaves the court in the dilemma of deciding where the burden of proof should tilt.

This scenario depicts the uncanny drama that is unfolding before a High Court sitting in Apo, a suburb in Abuja.  Whereas it was the Economic and Financial Crimes Commission, EFCC, that scripted the drama, trial Justice Suleiman Belgore is the present director, though the identity of the remaining dramatis-personae, is not in doubt, what has remained herculean, however, is ascertaining how they should be classified.

Who is the antagonist and who is the protagonist? Only time will tell!

Though the mock rehearsals kicked-off on the very day the chairman of EFCC, Mrs. Farida Waziri, handed a case file containing sundry criminal allegations against the former Speaker of the House of Representatives, Dimeji Bankole, the main drama, however, did not start until July 21, a day the accused person went before the Abuja High Court where he was previously arraigned on June 13, to adduce reasons why he believes that the EFCC boss acted in bad faith.

Funnily, the primary concern of the accused person was not to exonerate himself from a 17-count criminal charge impinging on his integrity, his contention was that the prosecutor was not qualified to handle the case file considering that he, ab-initio, questioned his integrity via a petition.

Bankole, who is facing trial alongside his erstwhile deputy, Usman Nafada Bayero, urged the court to disqualify the EFCC lawyer, Keyamo, alleging that the prosecution, ab-initio, vowed to bring him down even whilst he was still the ‘primus-inter-pares’ in the House of Representatives.

The former speaker in a preliminary objection he filed through his lead counsel, Chief Adegboyega Awomolo, SAN, informed the high court that the disaffection the prosecuting counsel had for him, culminated into a petition that in 2008, sought an indepth probe of his official conduct, noting that Keyamo specifically alleged that he siphoned over N2.3 billion through a transaction that involved the purchase of Peugeot 407 cars for members of the House.  It was his contention that the EFCC lawyer having publicly exhibited his malice and bias against him in the past, ought not to be allowed by the trial court to prosecute the instant case against them, which actually borders on an alleged N40 billion loan scam.

“Mr. Keyamo as a private legal practitioner had engagedthe applicant in battles of allegation of corruption as the Speaker of the House of Reps which failed and was dismissed by the House Ethics Committee.  That the prosecution of this case by Keyamo is a continuation of persecution, to destroy the applicant, an attack he had begun since October 2008; the prosecution of the allegation in this court by Keyamo can neither be objective nor inspire confidence or impartiality and independence as prosecutor”, he argued.

In a swift reaction, EFCC immediately waved aside his arguments, saying it was arrant balderdash.  In a 22-page counter-affidavit that was filed in reply to the former speaker, EFCC insisted that it was convinced in the ability of Keyamo to nail the two accused persons.

“The danger in accepting the prayers of the accused/applicant is that the court will always embark on a voyage of pampering an accused person until he chooses a prosecutor with whom he feels comfortable. Does it mean if Mr. Festus Keyamo becomes the Attorney-General of the Federation in future, he cannot prosecute the accused/applicant in respect of any offence?” it queried.

On the issue of bias, the anti-graft agency conceded that, “Mr. Keyamo has actually shown bias in the past against the accused/applicant. We submit that there is no law in Nigeria, whether in the Constitution or in a Statute or judicial pronouncement of superior courts that says emphatically that a prosecutor that shows bias in his belief or conviction of the guilt of an accused person cannot prosecute that accused person. We submit that a prosecutor must show some bias tilting towards belief in the guilt or culpability of the accused person, if not that prosecutor will merely be persecuting. We submit with respect that Mr. Festus Keyamo is only a prosecutor and not the court.

It is the duty of a prosecutor to prosecute a criminal case diligently by placing before a court of law all the facts of the case and the duty of being impartial is not that of the prosecutor but that of the court which is the arbitrator. Therefore, a person who has written a petition against an accused person does not preclude him from prosecuting that accused person.

That is why in the Northern part of Nigeria, the law allows a private person to file a direct criminal complaint against an accused person who he feels has committed a crime against him. We refer your Lordship to Section 143 (d) & (e) of the CPC and Section 342 of the CPA which is applicable in the Southern Part of Nigeria.

Based on the authorities of the CPC and CPA, it is trite law that any body (including an aggrieved person) can file a criminal charge against an accused person and that aggrieved person can also be a person who the accused has committed the alleged offence against, who have personal interest in the case and would have declared personal animosity, hatred and malice against the accused person.

It is in the light of the above submission that the Supreme Court in the case of FAWEHINMI V. AKILU (1987) 4 NWLR (PT. 67) 797 at 832 paras D-F; 833 paragraphs E-F and 834 paragraphs A-B, gave judicial support to the right of a private prosecutor, who in that case obviously showed bias and passion against two security chiefs whom he pointedly accused of the murder of Dele Giwa. This is even unlike this case where Keyamo merely wrote a petition to a law enforcement agency to investigate the accused/applicant in respect of another transaction altogether” the agency insisted.

Meanwhile, trial Justice Belgore has adjourned case to tomorrow.