Metuh: Court dismisses application to disqualify self
*Grants Adjournment After Seven Hours Of sittings
The Federal High Court sitting in Abuja yesterday dismissed the application filed by the National Publicity Secretary of the Peoples Democratic Party (PDP), Chief Olisa Metuh, asking it to disqualify itself.
It also threw away the application for stay of proceedings, pending the outcome of the appeal filed by Metuh last month.
But before giving his ruling, Justice Okon Abang warned journalists sternly against misquoting him.
According to him, the applications were dismissed for lacking in merit.
He stated that having carefully considered the application filed by the first Defendant asking the court to disqualify itself, and having listened to oral argument and written addresses, as well as the position of the Complainant in the counter-affidavit, he had to uphold the argument of the Prosecution.
“The facts disposed to by the Prosecution in the counter-affidavit are statements of facts,” he said.
Still on the application for the court to disqualify itself, Justice Abang said there were no facts or evidence to support the affidavit that the court was bias.
According to him, following the petition to the Chief Judge of the Federal High Court on the matter, his explanation was sought and accordingly, “the Chief Judge said he was satisfied with the court’s explanation. The petition and the position of the Chief Judge formed part of the court records,” Justice Abang said.
Ruling on the application for stay of proceedings, he noted that if the proceedings were to be a civil matter, he would have adjourned for the determination of the Appeal Court, adding: “But this is not a civil, but a criminal matter.
“Asking the court to adjourn to abide the application before the Appeal Court is like asking the court to stop proceedings from going on.”
He, therefore, dismissed the application, as well as the earlier oral application filed for lacking in merit.
He, therefore, asked Counsel to the First Defendant to proceed to argue the second application, which was a motion asking the court to stay proceedings, pending the decision of the Appeal Court on the matter before it.
On the application filed yesterday by the new Counsel to the Second Defendant, Destra Investment Limited, Mr. Tochukwu Onwugbufor (SAN), the Judge also dismissed same.
Abang ruled that the Defendant was no longer titled to further adjournment, stressing that he has enjoyed five previous adjournments.
He, therefore, called upon the Defendant to call his defecse.
According to him, the Second Defendant did not act in good faith and as such, he could not express his discretion on issue. It was accordingly refused.
Further attempt by Onwugbufor to argue the case was turned down by the Judge. In fact, he gave the Defence Counsels five minutes to produce their Witness.
He also initially refused to record the argument. But coming under Section 396 (5) of the Administration of Criminal Justice Act 2015, Onwugbufor insisted that even after axausting the five adjournments, he is still entitled to further adjournment not exceeding seven days, inclusive of weekends.
According to him, consequent adjournment has no more limits.
As if boxed to a corner, Justice Abang adjourned the case till April 11 for the Defendants to produce their defense.
By this, he also short out further explanation by Onwugbufor, even when he was still on his feet.
Considering the controversies shrouding Metuh’s trial, there was tension at the resumed hearing as to the likely outcome of the day’s proceeding.
By 9 am, Justice Abang had walked into the court and the case between the Federal Government and former Chief of Air Staff, Air Chief Marshal Alex Badeh, was called.
But Metuh’s Counsel insisted that he applied for the case to be called first. Thus, Metuh’s case was called.
Sylvanus Tahir had appeared for the Prosecution, while Emeka Etiaba (SAN) announced appearance for the First Defendant, Metuh.
Meanwhile, rather than Onyechi Ikpeazu, Onwugbufor had appeared for the Second Defendant, Detras Investment Limited.
He quickly drew attention of the court to a letter served to the Prosecution Counsel earlier, which he declined on the ground that he does not accept correspondent in the court.
According to him, the letter was asking the court for an adjournment to enable him time to study the brief, having just taken over from Ikpeazu. He asked the court to direct the Prosecution to accept the letter.
Turning to the Prosecution Counsel, Justice Abang asked his position on the matter, to which Tahir said the business of the day was to hear application filed by the Respondents.
Afterwards, the Judge declined to listen to the Counsel for the 2nd Defendant, but called on the First Defendant.
In his explanation, Etiaba told the court that his team was asked to withdraw its appearance for the 2nd Defendant and that was the reason he announced the appearance only for the First Defendant.
He also told the court that he was ready to argue his application.
Again, Justice Abang stated that the court was adjourned to allow for the argument of the application earlier filed and demanded to know if the Defendants were ready for the argument.
But the Counsel insisted that he was new in the case and has not responded to any brief. According to him, he was only briefed on Thursday.
“Apart from not being ready for argument on the motion before the court this morning, I don’t have detailed briefing or instructions from the 2nd Defendant on his case in the matter.
“I have not read the process of the court to enable me prepare accurately to defend his client. That is why, in the letter I addressed to the Lordship, I requested for certified true copy of the proceedings of this court and all the readings to put me in broader picture of what has transpired to enable me prepare adequately to defend the 2nd Defendant.
“The 2nd Defendant is not ready to proceed for today. This is to enable me prepare adequately for his defence. I do not want to remind your Lordship of the provisions of Section 36 of the Constitution, but if I must, I would refer you to Section 36 (6) a, b and c of the 1999 Constitution. This provision applies to anybody charged with criminal offence.
“The section borders on giving a Counsel adequate time and facilities towards preparation for defence.
“We submit, therefore, that we come under the provisions of this section that the accused is entitled to facilities and the Counsel to defend him and it has no limitation, in terms of the court or the process. It has no categorisation.
“We submit further that the Section 36 (6) overrides the provisions of the Administration of Criminal Justice Act, declaring them null and void.
“So, when the Administration of Criminal Justice Act starts to make some abbarative submission that the accused is entitled to only five adjournments and no more, even when the accused has the right to change a Counsel.
“This runs contrary to the provisions of Nigerian constitution, which is the grand norm upon which the Administration of Criminal Justice Act stands,” Onwugbufo argued.
He added: “With all humility and respect available to the court, I pray you to grant me an adjournment to enable me prepare adequately to defend my client.
“It is immaterial that another lawyer has been appearing for him. He can do that at anytime. He has the right to choose a Counsel of his choice anytime within the proceedings of the case and as soon as he brings a Counsel, that Counsel enjoys all the rights, latitude and privileges as allowed by the section quoted above.
“I urge the court, not only to accept my letter, which was submitted, but rejected by the Prosecution Counsel, but also to grant me an adjournment to enable me prepare to defend the 2nd Defendant.”
Again, Prosecution Counsel, Tahir, argued that having listened with keen interest to the application made by the Counsel to the 2nd Defendant, he has raised issues that he would react to.
He said: “A couple of minutes ago before the court resumed sitting, the Counsel approached him with a letter, which content I do not know, but which I later understood was for adjournment.
“We rejected the letter because we have a system here. It is unfair for an application seeking an adjournment to be served at that time.”
Tahir held that disengagement of a Counsel from an ongoing case has a process and the Counsels did not follow this to the Defendants, saying:
“Ikpeazu ought to have notified the court three days before disengagement. We have not received any such notice of disengagement from Ikpeazu, Chris Uche, I Adedipe or Etiaba.
“As such, request for an adjournment should be discountenanced and the Counsel on record before now should conduct the affairs of the 2nd Defendant.
“From the arrangement of proceedings since beginning, no one has been denied fair hearing. Defendants have not claimed that proceedings are conducted in a language that was strange. There is no denial to the right of Counsel. If anything, they have an allied of five SANs and legion of other lawyers.
“The last date we were in court was March 24. Between then and now is a period of about three weeks. If the 2nd Defendant had wished to disengage the services of his former Counsel, he would have had the time to brief another Counsel to take over his case.
“On the issue of record of proceedings, there is a pending interlocutory appeal and based on that, all the appeals relating to it have Berniembe compiled and transmitted to the Counsels of the Defendants.
“So, that question of applying for records of proceedings should not arise, as his colleagues have all the records.”
In his ruling, following series of argument from both parties, the Judge dismissed application for adjournment, stressing that previous applications have to be argued instead.
He, therefore, opened the floor to argue the motion on the earlier petioles asking the court to disqualify itself.
In his argument, Etiaba urged the court to grant the application in the interest of fair hearing, saying Justice Abang should not continue to preside over the case, having openly denied knowing Metuh in the past.
But in his reaction, Tahir tried to exonerate the Judge from allegation of bias, stating that since he assumed the case, he has given the parties equal opportunities to defend themselves.
He, therefore, asked the court to throw out the application.
“There is no reason a reasonable man will think that the presiding Judge has exhibited any conduct, which has cast doubt on his ability to dispense justice fairly.
“The defendant alleging bias against the court has not provided evidence.
“We urge your Lordship to dismiss the application. The honourable Judge is not a party to this case. He is not on trial.”
Due to the long period spent on Metuh’s case, that of Badeh was adjourned till April 12 and 19.
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