In the High Court of Justice,Federal Capital Territory,in the Abuja Judicial Division,holden at ApoAbuja F.C.T.Suit No: FCT/HC/CR/100/20M/8863/9405/9478/2011Between:Federal Republic of Nigeria'Respondentand1.Rt. Hon. Oladimeji Bankole, (CFR2.Rt. Hon. Usman Bayero Nafada'ApplicantsAGAIN, this motion as filed by Mr. Tayo Oyetibo, (SAN) for the 2nd Accused/Applicant followed the same pattern of Motion No. M/8863/11. The grounds for the relief being sought is the whole argument in support thereof. I will soon show in this ruling how it has lessen my burden of writing same.Lastly, Motion No. M/9478/11, dated July 18, 2011 prayed for an entirely different Order. It prayed as follows:1. An Order disqualifying Mr. Festus Keyamo, a private Legal Practitioner from further prosecuting this case as Private Prosecutor.Take further notice that the grounds of the application are:' Mr. Festus Keyamo, as a private Legal Practitioner had engaged the applicant in battles of allegation of corruption as the Speaker of the House of Representatives, which failed and was dismissed by the House Ethics Committee.' That the Prosecution of this case by Mr. Festus Keyamo is a continuation of prosecution, to destroy the applicant, an attack he had begun since October 2008.' The prosecution of the allegation in this Court by Festus Keyamo can neither be objective nor inspire confidence or impartiality and independence as prosecutor.' The prosecution by Festus Keyamo is perceived as a continuation of hostility, antagonism and personal vendetta, using the prosecutorial power of the state.' The prosecution of criminal allegation in matters relating to, connected with and which arose from the management/control and leadership of the House of Representatives under the Applicant by Mr. Festus Keyamo is a breach of the right to fair hearing of applicant by Section 36 of the Constitution.Once again, the grounds set out above in this motion by Chief Awomolo SAN laid open the arguments in support of the prayer they are asking for in this motion. It is very advantageous for me in writing this Ruling. I will explain in a matter of minutes.Now in this Ruling, I will lump the issues and arguments in Motion Nos. M/8863/11 and M/9405/11 together since they both prayed for the same Order. But the last motion asking me to disqualify Mr. Festus Keyamo shall be treated separately. I will start in the reverse order.A. Disqualification of the Prosecutor (Motion No. M/9478/11)In support of this application is a 13-paragraph affidavit. There is also a further affidavit of 22 paragraphs and a further and better affidavit of 8-paragraphs. Also attached is a written address and some foreign authorities were supplied to the court later. I must not forget to say that the further affidavit of the applicant also have four Exhibits attached. Interestingly, they were marked as Keyamo 2 to 4. Exhibit Keyamo1 is a CTC of House Committee on Ethics and Privileges Report on the publication in the Newswatch Magazine of September 22, 2008 and other correspondence emanating from the chambers of Festus Keyamo.Exhibit Keyamo 2 is an on-line Publication at www.naralam.com, which detailed an interview granted by Mr. Festus Keyamo alleging some wrong doings against the 1st accused as speaker of the House of Representatives.Exhibit Keyamo 3 is another on-line publication by point blank News, a daily internet publication wherein Mr. Keyamo called upon the President to investigate the 1st accused.Exhibit Keyamo 4 is another publication at www.nigerianbestforum.com of March 4, 2009 wherein the House of Representatives asked the Nigerian Police Force and other security agencies to investigate Mr. Keyamo for alleging a scam in the purchase of 380 Peugeot 407 cars worth N2.3 billion in January 2008.There is only one attachment to the main supporting affidavit in this application. It is marked as Exhibit Bankole 1. I find this interesting as well. This exhibit is the Report of the House Committee on Ethics and Privileges on the publication in the Newswatch magazine of September 22, 2008 captioned 'Reps Gun for Bankole over N2.4 Billion Car Scam'.Lastly, the further and better affidavit in support of this application has one Exhibit attached also and it is in the same vein marked as Keyamo 5. This is a copy of an interview granted by Mr. Keyamo and published in The News Magazine of May 30, 2011.On the other hand, the prosecution filed 3-paragraphs counter-affidavit. They also filed a further and better affidavit in reply and it is dated 25-7-11. A reply address was filed and some foreign authorities were supplied also.Chief Adegboyega S. Awomolo (SAN) appearing with four other legal SANs and some other legal practitioners moved the application on July 25, 2011. His submission orally in court is not different from the grounds he stated in the motion papers. And that is why I said earlier that it is most helpful. I need not re-capture all of them in this ruling at this juncture. I have already set them out. However, in summary, the learned Counsel's arguments is that by virtue of S17 (2) (c), S36 and S174 of the 1999 Constitution, Mr. Keyamo is expected to act in public interest, interest of justice, preservation of interest and integrity of law. He then referred to The News Magazine of May 30, 2011 and submitted that Mr. Keyamo could not be an independent and a unbiased prosecutor. The learned Senior Advocate of Nigeria read out extensively from the magazine and concluded that it would not be in the interest of impartiality of criminal justice to allow Mr. Keyamo to prosecute this case. According to Chief Awomolo SAN, the office of a prosecutor is not a domestic issue but an international office with international Code of Conduct. He referred to a print-out of code of conduct for prosecutors detailing Guidelines for prosecutors and paragraphs 4,5,6 and 9 and said Mr. Keyamo had expressed an opinion on the allegation against the accused/applicant, which disqualified him from prosecuting this case. The learned SAN argued that the prosecuting Counsel had a personal interest to satisfy personal goal.According to Chief Awomolo, to Mr. Keyamo, the guilt of the 1st accused/applicant is proved and it is a crusade. It is an animosity that has been consistent since 2008 to 2011. He adopted his written address as his full argument on this issue and cited the unreported case of FRN Vs Chief Kenny Martins and 1 or, suit No. FHC/ABJ/CR/61/09. This case was decided by his lordship, A. Bello .J. in the Federal High Court. It is clear that being a court of coordinated jurisdiction, this court can only be persuaded by it. However, there are other authorities of superior courts cited by Chief Awomolo SAN. They are Akilu Vs Fawehinmi (No. 2) (1982) 2 NWLR (pt 102) 122; Ojigbe Vs Ubani (1961) All NLR 290; and Akinfe Vs State (1988) 3 NWLR (pt 85) 729. As for Chief magistrate Ochimana's decision cited by Chief Awomolo, I will not even comment on it. I leave it at that. Learned Counsel finally submitted that Mr. Festus Keyamo be excused from prosecuting this case.Although, Mr. Tayo Oyetibo (SAN) filed no application on this issue, he spoke as amicus curie in order to assist the court reach a fair decision. Referring to S174 (10 (b) of the 1999 Constitution, the learned senior advocate of Nigeria submitted that the ultimate power to prosecute lies with the Attorney-General of the Federation because he has the power to take over any criminal prosecution. Applying this standard to this case, according to Mr. Oyetibo SAN, it means the procedure adopted by Mr. Keyamo in applying to prefer a charge is wrong. He argued that this type of procedure is unknown to CPC. The learned counsel then asked a very germane question. It is in fact, the all important question on this issue. The question is this; does a prosecutor need to be unbiased' The learned SAN submitted that if my answer is yes, then Mr. Keyamo needs to be disqualified having regard to all the publication tendered in court so far. Chief Oyetibo SAN remarked that Mr. Keyamo cannot be a prosecutor and at the same time, a crusader in the same case. He said since Mr. Keyamo has an interest in this case as a crusader, it means he cannot be a prosecutor.Finally, he inclined with his senior colleague and silk and urged the court to disqualify Mr. Keyamo.In his reply, Mr. Festus Keyamo, the learned prosecuting counsel, referred to all the processes filed on this issue. He said, the Supreme Court had already settled this issue. As for the Chief magistrate Ochimana's decision and that of Justice Bello of the Federal High Court, Mr. Keyamo submitted that the facts are not similar. He said in those cases, his chambers wrote the petition leading to the charges in the case. But that in this case, he did not write any petition leading to the N40Billion scam. He urged the court to rely and follow the Fawehinmi Vs Atiku's case (supra).Touching on some factual situations, Mr. Keyamo said he wrote a letter to the National Assembly and was directed at the speaker, which is adequately referred to in page 49 of the motion papers. By that letter, according to Mr. Keyamo, he did not accuse the Speaker i.e. 1st accused/applicant of any financial impropriety. There was no attack, no hatred and no vendetta. What he merely did, according to him is to urge the speaker to investigate certain issues. Mr. Keyamo then referred to paragraph 8 of their affidavit, which says that as far back as year 2000, Alhaji Na'aba, then speaker of the same House of Representatives was asked the same thing. So as far as he is concerned, it is a consistent attitude and not any personal hatred for the 1st applicant. Mr. Keyamo pointed out that even when Service Chiefs were appointed, he went to court to stop the exercise and that Chief Awomolo (SAN) was even his lawyer.Ditto for the publication in the Newswatch. They merely called for a probe. He did not make any allegations. Mr. Keyamo said that in any case, the Newspaper publications did not establish the truth of anything alleged.TO BE CONTINUED
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