‘Concluded criminal cases cannot be reopened’

The Attorney-General of the Federation, in line with sections 174 (1) of the constitution and 105 (3), 106 (a) of Administration of Criminal Justice Act, ordered the retrial of some ex-governors, whose cases have either been tried and concluded or ongoing. In this interview with GODWIN DUNIA, Ibadan-based lawyer, Olalekan Ojo, examines whether a concluded cases could be re-opened. He also spoke on other topical issues.

To what extent can concluded criminal cases be reopened?
When a case has been concluded on the merit, let me limit myself to criminal cases, because your question has to do with criminal matters. A criminal case is between the government represented by either the state or Federal Republic of Nigeria and the criminal defendant. Where such a case is concluded naturally, there is what we call a plea of ultra vouis, acqitass and res judicata. So, if a case has been concluded and it went in the favour of the defendant, that case can never be re-opened again. If it is re-opened, the defendant will then raise a plea of ultrevous aquitas that is, I have been tried in respect of this same case before, I have been acquitted, the case is closed and cannot be re-opened. Concluded cases cannot be reopened. The only aspect and this is going to give us serious problem, is the directive for the re-opening of the late Chief Bola Ige’s case. Assuming there is fresh evidence linking, establishing or capable of establishing the guilt of the criminal defendant, who has been acquitted on the merit, we are going to have some problems.

Will the prosecutor adduce additional evidence or earlier judgment will be annuled?
In some developed jurisdiction like in the US, it is possible to move by way of judicial review to quash, and annul previous judgment. It can work both ways. Where it becomes clear that the conviction was erroneous and wrongful, you move to annul it, but as at today, the legal framework in Nigeria does not allow that to happen. It is a legal impossibility to try Senator Iyiola Omisore again concerning the murder case of Chief Bola Ige. It is legally impossible to re-open that case as it concerns Senator Omisore. But the case can be re-opened in respect of new defendants, if it is now clear that there is another person, who was involved, who could have been charged alongside Senator Omisore, then, that can be possible. But for somebody who has been tried and acquitted, to now say come and face trial, that would be double jeopardy, it is not possible in law.

What is your view on the conflicting judgments emanating from the Federal High Court, Abuja and Port Harcourt over leadership crisis rocking the Peoples Democratic Part (PDP)?
Legally speaking, these courts or judges are judges of concurrent jurisdiction. Each judge is entitled to decide any case the way he or she understands it. But there is a situation, where there is the need for caution. For example, it does not augur well for the legal profession, if conflicting judgments and contradictory judgments emanated from the same Federal High Court; there is need for caution. It is most undesirable and it is a harbinger of avoidable chaos or confusion in the system. It is not healthy for the democratic governance, which we are operating in Nigeria. It is most undesirable to say the least and it is disappointing.

What is your assessment of this administration’s fight against corruption?
I do not agree that the fight against corruption is against the opposition. It must be remembered that the so called opposition was in power for about 16 years. It is therefore inevitable that the members of the Peoples Democratic Party (PDP), the party that has been in power should be affected. The mere fact that the bulk of the criminal defendants as at today, in our courts, come from the PDP, should not warrant any accusation of a selective fight. President Buhari is going after those who are involved in the administration of governance in this country for the past four or eight years. There should be no eyebrow raised because it was the PDP and its people that were in power, that occupies various position of governance in parastatals, ministry and other agencies. In any event, the president told us some weeks ago, that any All Progressives Congress (APC) member who is found wanting, the anti- corruption agency would move into action. It is not selective. They must understand the type of person our president is, he has zero-tolerance for corruption, regardless of whether you are PDP or APC member. I don’t believe that it is selective.

Are you suggesting those who cross-carpeted from PDP to APC are not corrupt like their counterparts who were investigated and prosecuted?
That will be judgmental, I cannot judge. What I am saying is that there is no prima facie evidence of their being found wanting. There is a difference between being found wanting and having been shown to be found wanting. I cannot give a clean bill to anybody. But, before the anti-corruption agency will move, there must be prima facie evidence of having been found wanting. If they come up with that against any of them, they will move. Let them come up with evidence. You don’t just assume because somebody has been governor for eight years therefore he must have stolen. Come up with evidence and not speculation. The police cannot work on speculation, the police cannot work on suspicion or the people want so and so to be probed, therefore we are going to probe them. No, that is not fair play as far as I am concerned.

What is your take on the allegation of budget padding scandal rocking the House of Representatives?
I would want to believe that it is a mere allegation, but, if it is established, those responsibly must be seriously dealt with. And I am in support of the call for the investigation of that very weighty allegation. A plot to steal this country of close to N50 billion is a serious matter, which should be seriously investigated. I support the investigation of those alleged to have been involved and if there is a prima facie case against them they must be prosecuted.

How do you view the move by the 8th National Assembly to confer immunity and life pension on presiding officers?
Let us talk first about the immunity. There are two issues; the first one is whether or not they have the power. I would say yes, they have the power. We have given them power to make laws and nobody can inquire into the motive for reenactment of any law. But speaking for myself, doing that at this stage is capable of heating up the polity. Anybody can say it is because that is the only way to save Saraki, Ekweremadu and the rest. But I stand to be corrected, I do not support the extension of the immunity to the principal officers of the National Assembly, we don’t need it. People are clamouring for removal of immunity for the president, vice-president, governors and deputy governors and you want to extend it again. Very soon they will say extend it to local government chairmen and speakers and other principal officers of the States Houses of Assembly. We don’t need it in Nigeria, particularly in our country, where corruption has become cancerous. As to pension, it is unnecessary. The whole essence of pension for maybe the president is because when somebody has been president, we don’t want him after leaving that office to suffer or to start looking for one contract or the other or begging people for money. But if you are 45 years and you leave the Senate as a majority leader, why should you be paid pension, when you can still work? Apart from that, they already have severance packages. Their severance packages are more than enough for them. In Nigeria, there is pervasive poverty. It is not proper to start using the national wealth to service principal officers to pay them pension and gratuity. It is not good at this stage of our democratic experiment. People are dying of hunger. It is immoral at this stage, when our economy is in recession, to talk of pension for principal officers.

Wife of the President, Aisha Buhari, has sued Ekiti State Governor, Dr. Ayodele Fayose over allegation of her involvement in Halliburton scandal. Can a governor be sued under the constitution?
I still don’t believe it, because every lawyer knows that a governor enjoys immunity. But no law says you cannot file an action. If you file it, you will just keep it there. What is the sense in filing a suit that you cannot prosecute? A governor cannot be sued but the governor can sue. You remember governor Fayose said he was not aware of any suit, because the suit cannot be served on him. If you can’t serve him, then it makes no sense.

But why should a governor who cannot be sued due to immunity has the power to sue?
During the second republic, this case came up. It is the case of Concord Press Nigeria Limited vs. Olabisi Onabanjo. Onabanjo sued Concord Press and Chief Gani Fawehinmi (SAN) of blessed memory, who appeared for Concord Press raised this issue, saying the governor cannot be sued, how then is it unconstitutional for the governor to sue? In fact, he argued that it is against the spirit of the constitution and also against what he called parity equality of treatment. Chief G.O.K. Ajayi (SAN), who appeared for governor Onabanjo merely said it is what we have in the constitution and the court had no difficulty in dismissing the objection of Concord Press Nigeria Limited. As usual, it was characteristically ably canvassed and argued by Chief Fawehinmi but, argument cannot change the law. The governor can sue but he cannot be sued. That is the law until it is changed, it has not been changed, it remains the law and there is nothing unconstitutional there.