Justice Okon Abang of the Federal High Court sitting in Maitama, Abuja has adjourned to Tuesday, July 3, 2018 for ruling on an application by the embattled former National Publicity Secretary of the Peoples’ Democratic Party, PDP, Olisa Metuh, seeking to set aside an order of the Court, foreclosing defence on his N400million fraud trial.
The matter which was slated for the opening of the defense of second defendant, Destra Investment Limited, stalled when counsel to the first defendant, Onyeachi Ikpeazu, SAN, applied to withdraw a previous application made on June 6, 2018 and move the current application dated June 12, 2018.
Justice Abang struck out the application of first defendant to withdraw his June 6, 2018 application, stating that no reason was given for its withdrawal.
Regarding whether or not the Court will hear the application of the first defendant dated June 12, 2018, Justice Abang ruled, “The first defendant’s application seeking leave to appeal the court’s interlocutory decision of May 25, 2018 in a criminal matter is not ripe and fit for hearing today.”
“The Court cannot stay compliance of the first order of court directing defendant to open his defence. The application does not take precedence over the order of court. It may only be convenient for the court to take argument on the application today. The issue of second defendant’s opening defence may be revisited afterwards,” the trial judge continued.
Thereafter, counsel to the first defendant, Onyeachi Ikpeazu, SAN, presented arguments on the application which is dated June 12, 2018 and filed on June 13, 2018.
According to Ikpeazu, “We have set out the law on which the application is founded, Sections 66(b) and 13 of 1999 Constitution of the Federal Republic of Nigeria, as amended, and Sections 256 and 356 of Administration of Criminal Justice Act, 2015, with 13 grounds in support of the application.”
“The third and fourth grounds of the application are to demonstrate to the court good faith and that we are not seeking an open ended leave. In support of the application, is an affidavit of 19 paragraphs and I adopt and rely on all facts of the affidavit together with the evidence submitted.”
Ikpeazu, explained that he was out of the country on the last adjourned date and that upon his arrival, he had to visit Onitsha for a relative’s burial – a development which necessitated his handing the matter over to fellow counsel, Emeka Etiaba, SAN, to represent Metuh in court.
“It was clear dereliction of my learned friend, Emeka Etiaba, SAN, who displayed some form of irresponsibility by delegating the matter to a junior lawyer, who upon being indisposed, did not appear in court for the matter as directed.”
In responding to a question posed by the court as to whether the application addressed an issue of discretion or an issue of law, Ikpeazu, relying on relevant authorities, noted that, “if facts that were brought to the court were so brought, and the court proceeded on the mistaken belief that it was disrespected and effectively abandoned, it becomes a form of concealment, which entitles a court of law to set aside a decision made under such circumstance.”
“We are not seeking to set aside the entire proceeding. We are only interested in the limited aspect for the first defendant to be allowed to complete his defence.
“In a situation like this, a court will dispassionately view the rights of the defendant himself to be accorded a fair trial as against the activities of his counsel.
“Moreso in this case, the court has made an order, dispensing with the personal attendants of the first defendant being that the defendant, based on indisposition, is fully entitled to rely on the responsibility of his counsel, who in this case displayed utter irresponsibility. In a civil case, the remedy of the defendant, where a decision may not be set aside, would be to sue the lawyer for negligence. But in a situation like this which imports criminal consequences as loss of liberty or its likelihood, a defendant cannot be adequately compensated in anyway.
“I therefore submit that it is both a question of law and a question of discretion. They are united.”
Ikpeazu admitted to the lacuna in the ACJA, stating that while there was no express position which could enable the court foreclose, Section 36 of the 1999 constitution vests in the court very wide powers to ensure that justice is done. He therefore urged the court to grant his application.
Counsel to the second defendant, Tochukwu Onwugbufor, SAN, did not oppose the motion, stating, “We did not file any counter affidavit and any address. We intend to leave this matter to the court’s determination.”
Prosecution counsel, Sylvanus Tahir, did not oppose the motion by the first defendant, stating that, “In not opposing the motion, we looked at the terse circumstances of the case, as well as Section 36 of the 1999 constitution, particularly as this is a criminal trial. This honourable court has toiled over two years adjudicating on this matter.”
“We view the situation analogous to the situation of the prodigal son recorded in the Bible. The defence has realized that they have offended the father in the court of justice and now seek repentance. If the court should apply the full wrath of the law, the first defendant would be shut out. So we believe the best policy that the court can exercise in this situation is to accommodate the first defendant so that regardless of the outcome of the trial, all the parties would have been given the opportunity of fair hearing.”
Tahir however added that, “The court should hold the learned lead counsel for the first defendant strictly by the deposition contained in paragraphs 15(i-vi) and 16 of their application.”
Justice Abang thereafter adjourned to July 3, 2018 for ruling on the first defendant’s application. He stated that the outcome of court’s decision would determine whether the second defendant will be called upon to open its defence.