The Court of Appeal sitting in Abuja, Wednesday ordered a federal court judge, Justice Okon Abang to halt the the trial of a former Benue State governor, Gabriel Suswam.
The appellate court ordered that Justice Ahmed Mohammed, who started the trial to continue with it.
Suswam, alongside Okolobia Okpanachi, his former Commissioner of Finance are facing alleged N3.1bn fraud said to have been committed during Suswam’s eight years (2007 – 2015) as governor of the state.
The Economic and Financial Crimes Commission ( EFCC) is prosecuting Suswam and Okpanachi on nine-count charge, bothering on money laundering and diversion of funds to the tune of N3.1bn.
Justice Mohammed on June 6, 2919, had returned the case file to the Chief Justice of Federal High Court, while recusing himself.
Mohammed cited an online portal, SaharaReporters’ story which accused him of taking bribe to the tune of N500m to scuttle the trial as reason for recusing himself.
The matter was reassigned to Justice Abang despite protestation from Suswam.
Abang had in a judgment dismissed Suswam’s objection, saying Mohammed haven given reason for recusing himself can’t be forced to continue with the trial.
He also said he (Abang) has no reason to refuse an administrative order from the Chief Judge.
Disatisfied Suswam had appealed the decision.
However, in a unanimous judgment on Wednesday, the appellate court ordered that the case be sent back to Justice Mohammed for continuation of trial.
Justice Emmanuel Agim, who delivered the judgment, also ordered that Justice Mohammed who had shown unjustified reluctance in entertaining the case should give the trial an accelerated hearing.
The court held that Justice Mohammed was wrong to have rescused himself from conducting the trial on account of fear, when all the parties had expressed confidence in him.
Although the court commended Justice Abang for showing deligence in the trial, it said its decision to return the case back to Justice Mohammed was to correct the error made by the Chief Judge by reassigning the case to him.
Justice Agim held that this was to strengthen the path of justice and protect the institution of the judiciary as the Chief Judge misapplied his discretion, when he reassigned the case to Justice Abang, rather than directing Justice Muhammed to continue with the trial.
The court held that although the Chief Judge has the powers under section 19 of the Federal High Court Rules, to assign cases to any judge of the court, “such discretion must be exercised properly and not recklessly so as to meet the justice of the case.
“Unfortunately, the Chief Judge did not exercise his discretion correctly. The re-assignment of the case to Justice Abang amounted to a transfer in a matter that was part heard.
“Four witnesses had already testified and an accused person is entitled to a trial within a reasonable period of time.”
Justice Agim further held that the exercise of discretion should be in a rational manner and properly to the satisfaction of all the parties.
The court however held that the improper exercise of discretion by the Chief Judge did not in any way rendered the proceedings before Justice Abang a nullity since the action of the Chief Judge was an administrative in nature.
“The action of the Chief Judge is an administrative one and therefore, proceedings by Justice Abang cannot amount to a nullity.
“The Federal High Court is one court and the judges are the same. It is within the administrative powers of the Chief Judge to re-assign cases and any judge has the jurisdiction to hear to cases assigned to them by the Chief Judge of the court.
“Justice Abang was right to assume jurisdiction since he has the statutory duty to obey the Chief Judge.
“Justice Abang has no powers to challenge or question the Chief Judge. He has a duty to take a case assigned to him and deal with it. He did what the law allowed him.
“In fact, if the ruling of Justice Abang did not touched on the reasons given by Justice Mohammed to recuse himself, this appeal would have no live.
“Abang has shown commendable deligence in the trial.
“But since Justice Abang went to determine the propriety of Justice Mohammed’s recusal from the case, the appeal has live issues.”
The court held that the reasons given by Justice Mohammed to rescue himself from the trial were not tenable in law.
In addition the court held that his rescusal which was done in his chambers and not in open court was a violation of the right to fair hearing of the defendants.
“Every part of the proceedings should be done in open court, not in secret or chambers.
“The reasons he gave were not tenable since all the parties had expressed confidence in him.
“Moreso, since himself adjudged the allegations as baseless, he should have summoned courage to proceed with the case.
“A judge is supposed to determine cases before them without fear and favour. The conduct of Justice Mohammed was very intriguing as Judges fear is not a consideration in determining issues of partiality or impartiality of the court.
“We have taken this decision to correct the error of the Chief Judge. Moreso, Justice Mohammed had called four witnesses. If the case will go back to him, the prosecution will proceed with the fifth witness. It is for that reason that we have to allow this appeal.
“It is hereby ordered that the trial of the case should go back to Justice A. R Mohammed for continuation in an accelerated manner since all the parties have expressed confidence in him.”
Felix Omohomhion, Abuja
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