Say commission has ulterior motive
From Godwin Tsa, Abuja and Lukman Olabiyi
Senior lawyers, yesterday, condemned an alleged plot to move the trial of former governor of Abia State, Dr. Orji Uzor Kalu from the Abuja division of the Federal High Court to Lagos.
They said it amounted to ‘forum shopping’ and an abuse of court process.
Besides, they avered the EFCC could have an ulterior motive in allegedly planning to move the case from Abuja.
The former governor had, at the weekend, raised the alarm over alleged plans by the Economic and Financial Crimes commission (EFCC) to transfer his case pending before Justice Anwuli Chikere to another court in Lagos.
Reacting to the development, eminent lawyers, who spoke with Daily Sun condemned EFCC’s alleged move. Senior Advocate of Nigeria, Mike Ozekhome said the prosecution does not have unilateral power to move a case from one judicial division to another except “with reason and agreement between the parties.
“Prosecution cannot solely decide to move a case to another judicial division without the consent of the court.
“For the move to be in line with the Constitution, there must be an application to that effect and it will be argued before the court decides.
“In the application, the prosecution must give reason for seeking to move the case to other judicial division because, issue of jurisdiction is not a sole right of the prosecution; right of the defendant must not be violated, all in the name of trial,” he said.
Ozekhome noted that if due process was not followed by the prosecution to move a case from one judicial division to other, it would be termed persecution.
“The idea of moving a case from one judicial division to another without the consent of the parties, is called ‘Forum Shopping’ and it is not prosecution again but persecution.
“It is an act of selecting a judge, dictating how the trial should go without considering the effect on the defendant,” said Ozekhome.
He, however, said the only situation in which the prosecution can unilaterally move a case from one judicial division to other is “when a trial judge voluntarily withdraws him/herself from case.
“But, without this kind of situation, for the prosecution to move its case to other judicial division without the consent of the parties, it means the prosecution has ulterior motive. Criminal trial procedure is very clear on issue of jurisdiction. Therefore, prosecution must give reason for the move,” Ozekhome said.
Another prominent lawyer, Mr. Ebun Adegoruwa said the venue where the alleged offence was committed is a determinant factor that cannot be overlooked. If the charge reads ‘Abuja Division,’ the trial must be conducted in Abuja. But, if it is not, the law of jurisdiction has to be strictly followed.
“It is even a settled law, considering the verdict of Supreme Court in FRN v Jame Ibori. The court ruled that former Delta State governor, Ibori could not be tried in Kaduna Division for an offence committed in Delta.
“It stated that the alleged offence was committed in Asaba, Delta State, therefore, the trial must be conducted in Asaba, based on jurisdiction.
“Besides, if all witnesses in the case are in a particular jurisdiction, it will be out of place to take the trial out of that jurisdiction,” Adegboruwa added.
In his contribution, a constitution law expert, Senior Advocate of Nigeria and author, Sabastine Hon described ‘forum shopping as an attempt to move a trial to another jurisdiction in order to secure a favourable decision.
“Although, in a criminal case, the prosecution may, with the consent of parties, decide to move the trial to a jurisdiction where the element of crime occurred, which is permissible in law, but, where the forum shopping is aimed at securing favourable decision, it is wrong and condemnable.
“The effect is that justice is not attained in most cases because, a new shop is most likely a favourable shop and it must be discouraged,” he said. Another Senior Advocate of Nigeria, lawyer, Ezechukwu Ikechuchwu said “forum shopping is an abuse of court process and is condemnable in the legal profession.
“If a court discovers that a matter was pending before another court, the latest process is thrown out because it constitutes an abuse of court process. It is condemnable because it shows an ulterior motive.
Yet, another Senior Advocate of Nigeria, Chief Mike Ahamba simply said the issue of forum shopping in criminal trial is condemnable practice in the legal profession “because parties should not be allowed to choose a court or judge to hear their cases.”
Already, Dr. Kalu’s counsel, Amobi Nzelu has petitioned acting Chairman of the EFCC, Ibrahim Magu.
In the petition entitled: Re: transfer of suit No. FHC/ABJ/CR/56/07-Federal Republic of Nigeria Vs Orji kalu & 2 Ors; Appeal for Re-consideration,’ Nzelu said it amounted to undue interference in the administration of justice.
The letter reads in part: “The information at our disposal is to the effect that your commission, after the last adjourned date and without reference to our client or his defence team, requested for the transfer of the said case to Lagos.
“At the last adjourned date, your commission, alongside the defence team, took December 6-8, 2016 for definite hearing.
“Both parties departed the court with a view to come back and commence trial at the agreed dates.
“Surprisingly and behind the back of our client and his defence team, your commission applied to the Chief Judge of the Federal High Court for the case to be transferred to Lagos judicial division of the Federal High Court.”