Justice Mohammed Idris of the Federal High Court, Lagos today, fixed Monday, September 3, 2018 for the continuation of trial of Dr. Waripamo-Owei Dudafa, an aide to former President Goodluck Jonathan and one Iwejuo Joseph Nna, who are standing trial before the court on alleged N1.6 billion fraud.
Justice Idris fixed the date, after delivery ruling on two separate applications filed by the two defendants, asking the court to refer the constitutionality of the trial judge, who has been elevated to Court of Appeal, to continue hearing the matter at the lower court.
Dudafa and Nna through their lawyers, Mr. Gboyega Oyewole (SAN) and Ige Asemudara, also asked the court to halt their trial pending adjudication on the constitutional issued raised in their applications.
The defendants in their motion on notice filed before the court, sought two reliefs:
” Whether by the constitution of the Federal High Court, for a justice of the Court of Appeal to continue to sit at the Federal High Court, does not offend the provisions of Section 253 of the Constitution and rob the Federal High Court of its jurisdiction over the charges pending before it.
The defendants in their motions also contended that by reason of the Fiat by the President of the Court of Appeal to a Justice of Court of Appeal, to preside and continue to adjudicate on matters upon which the Federal High Court has jurisdiction does not violate Section 36(1), 239, 240 and 251 of the Constitution, and tinkered with the independence of the Federal High Court.
The defendants further stated that in view of section 295 (2) of the Constitution, a judge who made a reference of question of law touching on jurisdiction to the Appeal Court, can proceed to continue to hear or determined the pending charge wherein the question arose.
They also stated that in view of provision of Sections 34(1)(a)and (c) of the constitution set against the provision of Sections 237, 240, 241, 249, 251, 252 and 253 of the same Constitution, whether it is not an aberration or degrading treatment to put a Honourable Justice of the Court of Appeal in a situation where he has to mandatorily work by fiat as a judge of Federal High Court.
Responding, lawyer to the Economic and Financial Crimes Commission (EFCC), Mr. Rotimi Oyedepo, while urging the court to dismissed the two applications, submitted that there are three conditions needed before a matter can be referred to the Court of Appeal in view of section 295 (2) of the Constitution.
These conditions according to Oyedepo are: Constitutional questions, secondly, it must have arisen in course of trial, and raised issues of substantial law.
Oyedepo further submitted that it is not appropriate to refer an issue to Appeal Court merely because it is been raised for the first to time or it is a matter of general interest, adding that the Judge is bound not to refer a matter to Court of Appeal, if the interpretation of that law is not one that is difficult or ambiguous for the court to determine.
Alternately, Oyedepo said that in case the court wants to refer the matter to Court of Appeal, Section 295(2) empowered the court to refer the matter to Court of Appeal but did not preclude the court from assuming jurisdiction in determine the culpability of the defendants on trial.
He cited section 306 of Administration of Criminal Justice Act (ACJA) 2015, states that the court should not suspend proceedings in Criminal matters, so as to do substantial justice within a reasonable time.
Recalled that both Dudafa and Nna had earlier been arraigned by the EFCC, before the court on 23-counts charge of conspiracy to conceal proceeds of crime amounting to over N1.6 billion.
