Arrest of court rulings, a threatening trend

The decision of a Lagos High Court, Ikeja on Monday April 13 to adjourn till tomorrow (Wednesday, April 22, 2015) for arguments on the application filed by the Economic and Financial Crimes Commission (EFCC) in which it seeks to arrest a pending ruling on an application filed by a former Managing Director of Bank PHB, Mr. Francis Atuche, is reinforcing the threatening trend in Nigeria’s legal process.

The former bank boss, who is facing a theft charge together with his wife, Elizabeth and a former Chief Financial Officer of the bank, Ugo Anyanwu had in the application urged the court to quash the theft charges preferred against them for lack of jurisdiction.

It is interesting to note that the applicants filed the action smarting from the precedent already established on a previous ruling of Lagos division of the Appeal Court. In that ruling, the appellate court quashed a similar charge preferred against a former Managing Director of defunct Finbank, Okey Nwosu.

In its judgment, the appellate court had struck out the theft charges preferred against Nwosu and others for lack of jurisdiction. But Atuche’s application had a chequered history at the Lagos High Court, which prompted the appellate court to direct the Chief Judge of the Lagos High Court to assign the matter to a new judge.

Apart from directing that the matter be assigned to a new judge, the   Appeal Court also directed the lower court to take a decision on the matter expeditiously since the main issue for determination is to see whether the case was similar to that of Okey Nwosu.

The new trial judge, Justice Lateef-Lawal Akapo, who took over the case heard the application on October 29, 2014 and adjourned till November 26, 2014 for ruling.

On the adjourned date, the judge said that the ruling was not ready and the application was adjourned till January 13, 2015. While the application was pending at the court, the appellate court in another ruling on a similar case involving former Managing Director of the defunct Intercontinental bank, Dr. Erastus Akingbola, reaffirmed its earlier decision and declared that Lagos High Court lacks jurisdiction to handle capital market matters, which the court noted was an exclusive reserve of the Federal High Court.

In a unani­mous decision, the appellate court allowed the appeal and held that the subject matter of the alleged offences related to banking operations and operation of capital issues, which fell within the exclusive jurisdiction of the Federal High Court.

The appellate court, in its lead judgment delivered by Justice Amina Augie (presid­ing), adopted by other mem­bers of the panel (Justice Sam­uel Oseji and Justice Abimbola Obaseki-Adejumo) held that the lower court judge took a narrow view of the matter when he assumed jurisdiction on the matter.

Justice Augie berated the lower court judge for failing to abide by the decision of the appellate court in the case of Okey Nwosu vs. EFCC even when it was brought to his no­tice.

Justice Augie noted that the appellate court had in Okey Nwosu’s case held that the Ikeja High Court, Lagos, where the charges were insti­tuted against the defendants had no jurisdiction over capital market-related matters.

Justice Augie declared that the lower court fell into serious error by not abiding by the decision on Nwosu’s case saying: “It is most unfair and an injustice”.

According to her, the lower court has no option than to follow the decision of the higher court on Nwosu’s case. “The point must be made that the decision of this court in Nwosu’s case was based on proof of evidence. “Only Federal High Court is conferred with the exclusive jurisdiction to try cases of capital market transaction,” she stressed.

The appellate court held that the lower court owes it a duty to compare and contrast the documents cited by parties. “It is its duty to examine materials brought before him.

It is the role of the judge to do justice in adjudicating all the cases brought before him. “One sided justice would amount to injustice and favouring one side.The proof of evidence was there but the trial judge at the lower court accused the defendants of not furnishing him with the documents. He has failed in his duty”, the presiding Justice ruled.

Justice Augie further held that the appeal filed by the defendants has nothing to do with evidence, noting that the lower court failed to go through argument canvassed before it assumed jurisdiction on the matter.

She emphasised that the lower court should not have toyed with the issue of jurisdiction. “I agree with the appellant that the lower court ought to have gone through the proof of evidence. There is no way a charge of stealing can stand without going through the proof of evidence,” she declared.

However, Justice Akapo, who is handling Atuche’s application, could not deliver the ruling at the adjourned date, following the strike embarked upon by judicial workers (JUSUN), which paralysed all judicial activities. When eventually, the strike was called off, Justice Akapo adjourned till March 2 for ruling.

Before March 2 ruling date the 90 days period statutory required by law expired and the judge directed that arguments be taken again and adjourned till April 13, 2015 for ruling. On April 13, the anti-graft agency, in an application dated April 2 and filed by its counsel, Mr. Dele Adesina (SAN) urged the court to adjourn the ruling, pending the outcome of its appeal against the Court of Appeal judgment of November 21, 2013 at the Supreme Court.

Adesina said the EFCC had filed an appeal against the Appeal Court judgment in favour of   Okey Nwosu at the Supreme Court. He added that the matter has being granted expeditious hearing due to its importance.

But Atuche’s counsel, Mr. Tayo Oyetibo (SAN), had maintained that the cases were similar because they emanated from capital market transactions. Oyetibo said the charges against Atuche bordered on issues which derived from capital market transactions, over which he said only a Federal High Court could adjudicate.

He pointed the attention of the court to the decision of the Court of Appeal, which, on November 21, 2014, struck out the theft charges levelled against a former Managing Director of Finbank Plc, Mr. Okey Nwosu and others.

“The appellate court held that such capital market-based matter was an exclusive jurisdiction of the Federal High Court,” he added. Oyetibo also referred the court to the December 31, 2014 judgment of the Court of Appeal, Lagos, in the case of Mr. Erasmus Akingbola against the Federal Republic of Nigeria.

According to him, the appellate court struck out the case against Akingbola, a former Managing Director of Intercontinental Bank Plc, on the same grounds.

But Justice Akapo, who noted that the judicial practice directive was to give priority to high-profile matters, said nobody could predict the time the Supreme Court would arrive at its verdict in the said appeal.

According to him, judges at the lower court had waited for over two years for the apex court to make pronouncement on the Court of Appeal ruling with regard to Okey Nwosu’s case. The judge, who also handled Akingbola’s application said the lower court do not know whether it is in all cases that border on shares and capital markets that  the Lagos High court do not have jurisdiction. According to the judge, the ruling on Atuche’s application was ready but for the application of the prosecution, which sought for its arrest.

The judge also explained why it has taken long to deliver the ruling, saying he has been wait for the decision of the Supreme court in Okey Nwosu’s appeal and that the waiting has become so long without any decision on the matter yet. He said there is pressure on him to follow  the court of appeal’s decision, which has been consistent with its position as seen in Akingbola’s case.

Although Atuche’s counsel Oyetibo (SAN) had asked the court to reject the application, arguing that it was aimed at truncating the ruling, the judge adjourned the matter till April 22 for arguments on the application.

It is however, worrisome that such an application from an establishment like the EFCC, seeking to arrest a ready ruling, which has been pending for long as a delay tactics can set a dangerous precedence in the judicial process.

Such an application by an agency of the executive arm of government to arrest the ruling of the court appears more like an attempt to ridicule the doctrine of separation of power and the independence of the judiciary. Interestingly, Atuche is also facing trial on the same issue at the Federal High Court, where the charge was first filed.

Instead of holding on to the ruling while waiting for the pronouncement of the Supreme Court, it is better to have the ruling delivered, and its decision challenged at the appellate court, if the apex court eventually invalidates earlier similar decisions.

All eyes are on the lower court as to whether it would have the courage to deliver the ruling or succumb to what is a clear judicial interference.