Alleged N1.9b fraud: Court reverses ex-CJ’s transfer of Babangida Aliyu’s trial

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Edozie Udeojo

A Federal High Court in Abuja has reversed an earlier decision by its former Chief Judge (CJ), Justice Abdul Kafarati, to re-assign to another judge for alleged N1.9 billion fraud case against former Niger State Governor Babangida Aliyu.

In a judgment on Monday, Justice Inyang Ekwo overruled Justice Kafarati and held that the ex-CJ acted in breach of Section 98(2) of the Administration of Criminal Justice Act (ACJA) when he re-assigned the case file to a new judge to begin afresh after the prosecution had called 10 witnesses and tendered several exhibits in evidence.

Justice Ekwo averred that the EFCC had only four witnesses left to conclude its case before the then Chief Judge purported to exercise his administrative power to re-assign the case.

The judgment was in a suit with which Aliyu challenged Justice Kafarati’s decision to transfer the case.

In 2017, the Economic and Financial Crimes Commission (EFCC) arraigned Aliyu and his former Chief of Staff, Umar Gado Nasko, before Justice Nnamdi Dimgba of the Federal High Court, Abuja, on an eight-count charge.

Aliyu and Nasko were accused, among others, of diverting the N1.940 billion ecological funds released to Niger State in 2014 by the Federal Government.

The defendants challenged the territorial jurisdiction of the court in Abuja, following which the case was transferred to the Minna Division of the Federal High Court and assigned to Justice Yellim Bogoro.

Midway into trial, with the prosecution calling 10 witnesses, Justice Kafarati, in June 2019, ordered Justice Bogoro to withdraw from the case, following which he re-assigned it to another judge, Justice Aliyu Bappa, for the trial to begin afresh, citing a petition by the EFCC.

In yesterday’s verdict, Justice Ekwo noted that the suit called for the judicial review of the action of the CJ in transferring a judicial proceeding mid-stream, from one Judge to another, after the prosecution had called 10 witnesses.

Justice Ekwo upheld Aliyu’s contention that Justice Kafarati exceeded his administrative powers.

“I have reviewed the facts, evidence and circumstances. Ordinarily, certiorari would not lie where the Chief Judge of a court acts administratively in the routine transfer of cases pursuant to the Rules of Court.

“This case is not predicated on the administrative power of the Chief Judge under the Rules of this Court.

“This is a statutory matter whereby the provisions of the law, the power of the Chief Judge to transfer a case, is curtailed.

“Where power is curtailed by statute and it is exceeded, review of such act by certiorari becomes inevitable. It is my opinion that order certiorari must be made in this circumstance where evidence has clearly demonstrated that a quasi-judicial function of a Chief Judge has been exercised in excess of statutory authority, and I so hold.

“As it is, I find merit in the case of the plaintiff and I enter judgment as follows: A declaration is hereby made that having regard to the provisions of Section 98(1) and (2) of the Administration of Criminal Justice Act 2015, the Honourable Chief Judge of the Federal High Court lacks the legal power to transfer or re-assign a criminal case from a judge before whom witnesses have been taken, to another judge where the trial will commence de novo.

“A declaration is hereby made that having regards to the provision of Section 98(2) of the Administration of Criminal Justice Act, 2015, the purported transfer or re-assignment of the charge to Justice Bappa to commence de-novo, is ultra bored the powers of the Chief Judge and therefore null and void.”

Justice Ekwo also declared that the petition the EFCC submitted to the then CJ through a letter, dated February 21, 2019, “failed to meet the requirement of Section 98(3) and 98(4) of the ACJA, 2015, as a basis for justifying the transfer of the criminal case …from Justice Yellim Bogoro to Aliyu Bappa J”.

He directed the court’s incumbent CJ to recall the case file from Justice Bappa and to return it back to Justice Bogoro to continue and conclude the case.

Justice Ekwo also made “an order directing Justice Bogoro to complete the trial, having heard 10 prosecution witnesses”.