23rd August, 2018
By Akin Kuponiyi
Two officials of the Independent National Electoral Commission (INEC), Christian Nwosu and Tijani Bashir, currently on trial over alleged N264.8 million fraud have filed separate motions at the Federal High Court in Lagos asking the trial judge, Justice Mohammed Idris, to recuse himself from the case.
In an application filed before the court, the defendants wanted the case to be re-assigned to another judge of the court.
In their argument, the defence lawyers, Victor Opara and Nelson Umoh, said the judge lacked the requisite jurisdiction to continue with the hearing of the case having been elevated to the Court of Appeal.
They argued that there was no provision in the Constitution that empowered the judge, upon his appointment and confirmation as a Justice of the Court of Appeal to also double as a judge of the Federal High Court.
According to them, having been elevated, Justice Idris is at law enjoined to preside over appellate matters only under Section 238 of the Constitution.
“A Judge of the Court of Appeal of Nigeria cannot deliver, make pronouncement, recommendation, decision and or judgement on matters pending before the Federal High Court of Nigeria.The constitutional elevation of my lord cannot be circumscribed by Section 396 (7) of ACJA”, they contended.
Responding, EFCC’s lawyer, Rotimi Oyedepo, argued that the defence lawyers’ arguments goes to no issue as the prosecution has already closed its case before the elevation of the trial judge.
He said the judge was eminently qualified to continue with the hearing of the matter despite been elevated as it fits into the definition of ‘part-heard’ cases as contained in Section 494 of the Administration of Criminal Justice Act (ACJA) 2015.
He said: “Section 396 (7) of ACJA gives my lord ‘special dispensation’ to hear and determine part-heard cases as is applicable in this matter’s circumstances.
“There is nothing in the Constitution that specifically restricts or prohibits the granting of ‘special dispensation’ to hear and conclude a part-heard criminal matter by an elevated judge. The provision of Section 396 (7) of ACJA is merely complementary to the Constitution and is not inconsistent with it”.
The presiding judge has adjourned till August 27, 2018 for ruling.
The defendants were on March 7 re-arraigned before the court by the Economic and Financial Crimes Commission (EFCC) on a 9-count charge of conspiring together to directly take possession of N264.8 million which they reasonably ought to have known forms part of an unlawful act. They pleaded not guilty to the charge.