BY OLUGBENGA SOYELE, Lagos –
Suspended judge of the Federal High Court, Bayelsa Division, Justice Hyeladzira Ajiya Nganjiwa, yesterday, asked Justice Adedayo Akintoye of the Lagos State High Court in Igbosere to hand off his ongoing trial over alleged unlawful enrichment.
Justice Nganjiwa, who made the request through his counsel, Chief Robert Clarke (SAN), accused the trial judge of bias in favour of the prosecution.
The embattled judge is asking in the alternative, order dismissing the charge which he said constitutes double jeopardy against him.
The Economic and Financial Crimes Commission (EFCC) had on June 23, this year, arraigned Justice Nganjiwa before Justice Akintoye on a 14-count charge of unlawful enrichment to the tune of N81,705,000 and making of false statement to EFCC officials.
Justice Nganjiwa pleaded not guilty to the charges and was granted bail on self- recognizance due to his status as serving judge.
Justice Akintoye, however, directed him to deposit his passport in the court’s custody and also mandated the judge “to present himself for trial for the entire duration of trial.”
At the resumed hearing of the case yesterday, Chief Clarke told the court that he has written a letter dated November 10, 2017 to the Administrative Judge seeking transfer of the matter to another judge.
The senior lawyer also said he has also filed an application objecting to trial of his client before the Judge.
In the letter, Clarke stated that “the trial judge is presiding over the charge number LD/2544/16, FRN v Rickey Tarfa and that the counts and facts of the charge against my client are substantially similar to the counts/facts of the charge against Tarfa.
“In essence, my Lord, I am of the view that opinion formed by the learned trial judge as regards charge LD/2544/16 will invariably lead to same opinion in the information against my client.
“My Lord, as it stands, fair trial in the eye of a reasonable man is likely to be tainted as there is likelihood of bias.”
When he was asked by the court to explain what he meant by bias, Clarke maintained that there is a presumption of bias by the trial judge in favour of the prosecution.
“It is for the judge to decide if a prima facie case has been established against the defendant. But in the case, it is the Director of Public Prosecution (DPP) that is saying a prima facie case has been established.
Clarke also told the court that their application before the court was brought pursuant to section 36(9) of the constitution and sections 173,175 and 216 of ACJL of Lagos State 2011.
He said their application is supported by an affidavit containing all the facts of bias against his client.
Clarke said, “There is a sister case before this court containing virtually all the allegations and particulars in this new case.
“You cannot make up your mind in one particular case and change it in another case. We are not afraid that justice must be done, but justice must be seen to have been done.”
The EFCC counsel, Wahab Shittu, at this stage said he was not aware of the defendant’s application and was subsequently served in the court.
After he was served, Shittu described the application as an attempt to frustrate the trial.
He maintained that the application was also contentious and should not be allowed, while he also reminded the court of past attempts by defence to stall trial.
“Your lordship, you cannot stay proceedings in a criminal matter.
“The applicant is imputing bias merely on speculative conclusions that a case is pending before your lordship.”
Shittu argued that there was no way the matter in the other matter involving Ricky Tarfa can influence the matter before the court as no decision has been taken on it.
The lawyer also asked the court to take judicial notice of the fact that the defendant is not on a joint trial with Tarfa in the other case.
He contended that the defence has failed to lead evidence that the court will be bias in the matter.
The EFCC counsel further submitted that, “The defence has not shown that your lordship has particular interest in the matter and that your lordship has no relation with the defendant.
“Your lordship has not exhibited any partisanship. The court is only exercising judicial powers in relation to the matter.
“It is speculative to say that the judge should hands off. The circumstances are different. The particulars are different.
“There is no ground for the application from all parameters. So this application is premature. Anybody alleging bias must provide all the particulars “, he maintained.
At this stage, Chief Clarke asked the court for a short adjournment to enable the Administrative Judge take decision on their letter, “ after all no court can transfer a judge without the approval of the Chief Judge.”
Justice Akintoye has reserved ruling in the matter till November 22.