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From Godwin Tsa, Abuja
A Judge of the Abuja division of the Federal High Court, Justice Florence Giwa- Ogunbanjo has been asked to recuse herself from the case of alleged acts of terrorism and cybercrime against a Nigerian citizen, Chukwuebuka Solomon Akuma, on account of alleged bias.
Already, a petition against her alleged conduct has been submitted to the Chief Judge of the Federal High Court, Justice John Tsoho, by the defence counsel, Chief Solomon Akuma (SAN).
The defendant was arraigned before the court by the Federal Government on nine-count charge bordering on alleged acts of terrorism and cybercrime contrary to sections 11(a), 13, 5(1) (a) of the Terrorism(Prevention) (Amendment) Act, 2013 and sections 18(1), 24(2), 26(d) and 24(a) of the Cybercrimes (Prohibition, Prevention etc), Act, 2015 respectively.
It is the case of the defendant that having struck out the amended charge against him for being invalid, there was therefore, no basis for him to stand trial in the absence of any valid charge against him before the court to answer to.
That the action of the Judge insisting that he must continue stand trial on charges that have already been struck out shows an element of bias against him.
Before the amended charge, the defendant was arraigned before the court on a four- count charge where he took his plea and pleaded not guilty to all the charges.
The Prosecution counsel, Victor Okoye, from the office of the Inspector General of Police, with leave of court amended the charge to a 9 Count charge after PW1 and PW2 had testified. The Defendant took a fresh plea on the 9 Count Charges dated October 27, 2020 and pleaded not guilty to all the Counts
However, before trial could commence, the defence counsel filed a motion on notice challenging both the competence of the charge marked FHC/ABJ/CR/97/2020 and the jurisdiction of the court to conduct the trial.
Besides the notice of preliminary objections, the defendant called one witness, an expert in Information and Communication Technology and closed his case.
He argued through his counsel that by virtue of section 30 of the Terrorism (Prevention) Act, 2011 the only person legally competent to institute any criminal proceedings against the Defendant under Terrorism (Prevention) Act is the Attorney General of the Federation and where the Attorney General Federation is not prosecuting personally or through a law officer under his department, he can delegate that power by way of FIAT to any investigating Agency to prosecute the offence.
He further submitted that the express mention of the Attorney General of the Federation as the Prosecuting Officer means the exclusion of every other prosecuting agency except and until the Attorney General delegates his powers to the Investigating Agency.
The defendant therefore submitted that the Inspector General of Police or anybody from his office does not come within the intendment of a prosecuting agency under the Terrorism Act and therefore incapable of initiating and undertaking the prosecution of Counts 1, 2, 5 and 6 of the Charge.
“It is our respectful submission that the instant charge is incompetent for non-compliance with the mandatory provision of Section 196(1) of the Administration of Criminal Justice Act, 2015. It provides;
He submitted and the Law is settled that the place where the offence was committed must be stated with precision in the charge. See Solomon v. State (2020) 13 WRN 122 @ 149 – 150 CA; Ibrahim v. The State (2015) 11 NWLR pt.1469 p.164 @ 196 – 197 per Rhodes-Vivour JSC. It is submitted that the locus criminus in a criminal trial is a fact in issue which must be proved alongside other facts in issue beyond reasonable doubt.
In the instant case, there is no evidence before this Court that any of the offences stated in Counts 1 – 9 were committed in Abuja within the jurisdiction of this Honourable Court. The evidence of PW2 that the Defendant was arrested at Aba raises a presumption that the offences in Counts 1 – 9 were not committed within the jurisdiction of this honourable Court but at Aba which is outside the jurisdiction of this Court.
Based on the foregoing submissions, we pray and urge this Court to hold that this court lacked territorial jurisdiction to try count 7.
After taking both submissions, Justice Florence Ogunbanjo in her judgment delivered on October 22, 2021 struck out the charge against the defendant for being invalid.
” This amended charge was not initiated by due process of law and upon fulfilment of the condition precedent to the exercise of this court’s jurisdiction provided in section 218(2) of the ACJA, 2015, which robs the court of jurisdiction to determine this matter and I so hold.
“It is trite law that where an Act prescribes a particular method of carrying out and Act, that method must be followed.
The prosecution ought to have filed the amended charge separately after the motion on notice for the amendment of the charge was granted to enable the date the order was made to be endorsed on the amended charge sheet.
” In view of the foregoing, I must agree with the defence that the defendant was arraigned on an invalid charge as the proposed amended charge is invalid.
“Consequently, this matter is hereby struck out as there is no valid amended charge before this court.
” I cannot end this judgment without noting that this matter was not prosecuted diligently, which gave rise to the preliminary issues of competence and jurisdiction raised by the defendant.
“I therefore refer this matter to the Attorney General of the Federation for his consideration and necessary action,” Justice Ogunbanjo ruled.
It is the case of the defendant that having come to this conclusion in her judgment, it was wrong for the judge to insist on proceeding with the trial.
