A Federal High Court sitting in Abuja has fixed November 8, for ruling in an application for stay of proceeding filed by former Adamawa state Governor, Admiral Murtal Nyako (rtd) and others facing trial over an alleged N29bn fraud.
The trial judge, Justice Okon Abang fixed the date after counsel for the 3rd and 9th defendants had concluded their arguments on points of law as well as that of the 5th defendant.
Though transferred to Asaba Division of the Court, Justice Abang has continued to conduct the trial based on a fiat issued to him by the Chief Judge of the Federal High Court.
In a bench ruling on Friday, the judge explained that ordinarily, he would have delivered ruling on the application within three days but cited “heavy workload”.
He disclosed that he has other serious cases at Warri Division, which requires judicial time, and has been shuttling from Asaba Division to Abuja to conduct trials too.
“I have heavy workload in Warri Division, the judge said. In order to have time to attend to other cases pending before in Asaba Division, I adjourned to November 8, for ruling on the application for stay.”
Justice Abang stated that if the application for stay succeeds, the reliefs of the defendants will be granted and that the court will proceed to make consequential orders as contained in the main reliefs.
However, the court declared that should the application for stay of proceeding fail, the defendants are ordered to open their defence on that day.
Moving the application, Kanu Agabi (SAN), counsel to the 1st and 2nd defendants, said the application basically was for the court to stay proceeding pending an appeal at the appellate court.
The defendants are challenging the dismissal of their no-case-submission, on July 19, 2021, by Justice Abang.
Adopting his processes, Agabi attacked the prosecution’s reliance on section 306 of Administration of Criminal Justice Act, 2015, to oppose his application for stay.
“It is our humble submission that the position of the prosecution in opposing our application does not represent correct position of the law.
He insisted that the court has jurisdiction and inherent powers to adjudicate on any motion before it.
Agabi said section 306 of ACJA, being relied upon by the prosecution was an issue in Onnoghen versus FRN, in 2019, at the Court of Appeal.
He argued that in it’s ruling, the appellate court held that a stay of proceeding is not granted in vacuum, and where granted, it is to preserve the res (subject matter) of a case.
Granting of stay of proceeding, Agabi posited, “depends on the law, facts and on the interest of justice.
“Application for a stay of proceeding, is in the interim, and at the discretion of the court, which must be exercised judicially and judiciously.
“Section 306 was an issue on the trial of Bukola Saraki, when the Supreme Court ordered for a stay in his criminal trial. It was also considered by the Court of Appeal, when it ordered for a stay in Justice Walter Onnoghen’s trial at the Code of Conduct Tribunal, Nyako’s lawyer argued.
He therefore urged the court to grant his application for stay in the interest of justice.
Similarly, A.O Dada argued his first motion on behalf of the 3rd defendant and urged the court to grant the application for stay.
“This application is meant for your Lordship to stay proceeding pending when an appeal is entertained.
It was filed in accordance with Order 4 rule 10 of Court of Appeal Rules, Dada said, arguing that the case of Olisa Metuh, cited by the prosecution, was distinguishable from the facts of the instant case.
“Your lordship is aware that this matter started since 2015, and the prosecution took six years to call witnesses and present its case.
“If the prosecution took six years to open and argue it’s case, the 3rd defendant is asking just for a while, say 6 months for the application to stay to be heard at the Court of Appeal.
“If at the end of the day, the application is dismissed at the appellate court, parties are here to continue the matter before this court.
“With due respect to my Lord, if the Court of Appeal disagrees with the instant court, the matter ends there, and valuable judicial time would have been saved.
“I pray the court to exercise it’s discretion in favour of the applicant/defendant” Dada stated while adopting his oral submission.
Dada who also argued and moved application of the 9th defendant, adopted the 3rd defendant’s oral argument as argument for the 9th defendant.
For the 5th defendant, Olumide Olujimi also prayed the court to stay proceeding pending the determination of an appeal marked CA/ABJ/CR/596/2021 between Blue Opal Ltd versus FRN, at the Court of Appeal.
In response to the defendants’ application for stay of proceeding, Sylvanus Tahir, the prosecution counsel vehemently opposed the application, describing it as “incompetent and abuse of court process”.
He prayed the court to dismiss the application jointly and severally.Tahir submitted that the application by the defendants were dead on arrival and ought to be dismissed.
He said every superior court of record is regulated by procedures and rules, adding that the court as presently constituted, “is sitting as a criminal court, and so, the law regulating the procedure of the court is the ACJA.
Tahir said it was curious to note that the application was brought pusuant to Section 6(6)(a) of the 1999 Constitution, as amended, and Order 4 Rules 10 and 11 of Court of Appeal Rules 2016.
He posited that the court is sitting as a court of first instance, and that it was wrong for the application to be filed under the rules of the Court of Appeal.
“It is also wrong to predicate the application under section 6(6)(a) of the Constitution, which deals with general power of the Court; and does not specifically grant power for hearing of motion for stay, the prosecution counsel argued.
He said Agabi summer assaulted by not citing the law in respect of stay of proceeding.
“We submit that the law dealing with application for stay of proceeding in a criminal matter is ACJA, particularly section 306.
“That section was interpreted by the highest court in the land, in Olisa Metuh versus FRN, wherein it rested the issue of stay of proceeding in criminal cases.
“Decision was made on the interpretation of section 306 of ACJA, section 40 of EFCC Establishment Act as well as section 36(4) of the 1999 Constitution.
Consequently, the prosecution urged the court to dismiss the application as being “incompetent”.
He said the case cited by Olujimi, in Mohammed versus Olawumi, (Supra) was made in 1993, and a civil matter, whereas ACJA came into existence in 2015.
Tahir insisted the court should not be swayed by “ultra legalistic” submission that will negate the interpretation of provisions of ACJA.
In addition, he submitted that the defendants ought to have filed the application for stay before the trial court rather than rushing to the appellate court, and later returned to the court to move same.
“Filing the application at the Court of Appeal, before filing at the trial court is an abuse of court process.
By the application, the prosecution said the defendant are offering the court a “poisoned charlice” and therefore urged it to refuse it.
“Granting the application will defeat the main aim of ACJA which prohibits stay of proceeding in a criminal matter.”The aim of the defendants’ application is to cause delay in the trial and I urge the court not to tarry, the prosecution counsel submitted, adding that the provision of Order 4 Rule 10 was not applicable in a criminal case scenario.