Kalu: Why court should stop AGF, EFCC

In pursuant to Order 34 Rule 1 (a) & 3 of the Federal High Court (Civil Procedure) Rules 2009, Section 6 (6) (A) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and the inherent powers of the honourable court, we yesterday, had cause to apply to the Federal High Court, Abuja Judicial Division, in suit No; FHC/ABJ/CS/845/2016, for the issuance of an order of mandamus, compelling the Attorney General of the Federation, being the officer that has the constitutional powers to initiate, maintain and discontinue criminal proceedings, to direct the Economic and Financial Crimes Commission (EFCC) to prosecute Suit No. FHC/ABJ/CR/56/07 (Federal Republic of Nigeria vs Orji Uzor Kalu & 2 others in Abuja Judicial Division of the Federal High Court.

We also applied for the issuance of an order of mandamus, compelling the Attorney General of the Federation and the EFCC to prosecute Suit No. FHC/ABJ/CR/56/07 (Federal Republic of Nigeria vs Orji Uzor Kalu & 2 others in Abuja Judicial Division of the Federal High Court.

Also, we applied for the issuance of an order of mandamus, compelling the Chief Judge, Federal High Court to remit Suit No. FHC/ABJ/CR/56/07 (Federal Republic of Nigeria vs Orji Uzor Kalu & 2 others, which was transferred from the Abuja Judicial Division of the Federal High Court to the Lagos Division of the Federal High Court, back to the Abuja Judicial Division of the Federal High Court for continuation of hearing and determination of the matter.

We requested an order that the leave so granted shall operate as a stay of all actions, matters or issues ancillary to or relating to or pertaining to or connected with this matter, pending the hearing and determination of this matter.

To support the application, we deposed to an affidavit in support of motion, thus: I have the full authority of my Principal as well as the Applicant to depose to this affidavit. By virtue of my position, I am very conversant with the facts of this case and that the facts deposed to in this affidavit are to my personal knowledge safe as otherwise stated. The 1st Respondent (EFCC) is an organ of government charged with the statutory responsibility of investigating and prosecuting economic and financial crimes. The 2nd Respondent (Attorney General of the Federation) is the Chief Law Officer of the Federation, who advises the Federal Government of Nigeria on legal matters and who can initiate, maintain and discontinue criminal proceedings against anybody found to have committed crime.

Also, in the affidavit, we deposed: All the parties left the court to prepare for the case fixed by the court for 6th, 7th and 8th day of December, 2016 for definite hearing. Surprisingly and without consultation with the other parties and defence team of the Applicant, the 1st Respondent, which is the prosecuting agency, approached the 3rd respondent (Chief Judge of the Federal High Court) and asked for a transfer of the case to Lagos Judicial Division of the Federal High Court. The 3rd Respondent yielded to their request and transferred the matter to Lagos Judicial Division of the Federal High Court. Upon becoming aware that the 3rd Respondent has transferred the case to the Lagos Judicial Division of the Federal High Court, he petitioned the 3rd Respondent through one of his lawyers, Amobi Nzelu Esq (Exhibit A). When he became aware that the transfer was requested by the 1st Respondent, he petitioned the acting Chairman of the 1st Respondent on the 15th day of October, 2016 through one of his lawyers, Amobi Nzelu Esq (Exhibit B), which letter was acknowledged on the 17th day of October, 2016. The said Exhibit B was copied to the 2nd Respondent, who also acknowledged receipt of same on the 17 day of October 2016.

Again, the affidavit stated: That he has been standing trial in this matter since 2007 and has never failed to appear in court on any of the adjourned dates; The 1st & 2nd Respondents merely shopped for forum convenience where they will convict him at all cost. He is willing to face his trial before any Judge in Abuja Judicial Division of the Federal High Court or worst still in Umuahia where the alleged offences were committed. He temporarily resides n Abuja and his defence team, namely Chief Awa Kalu (SAN), Chief Mike Ozekhome (SAN), Solomon Akume Nwufo (SAN), Chief Gordi Uche (SAN) and Amobi Nzelu Esq. all reside in Abuja. The 3rd Respondent is the Head of Court and the Hon. Chief Judge of the Federal High Court of Justice of Nigeria. I am informed by the Applicant, Dr. Orji Uzor Kalu, while briefing me in our chambers on the 24th day of October 2016 at about 11:00am and I verily believe him to be true as follows:

Suit No. FHC/ABJ/CR/56/07 was commenced against him and others in 2007 after he left office, as the Executive Governor of Abia State. After he left office as Executive Governor of Abia State, he did not contest any elective office because he wanted to retire to private and quiet life in his village, Igbere in Abia State. Due to this case, he temporarily relocated to Abuja to face the trial alongside others. He was granted bail by this Honourable Court after being remanded in prison custody at Kuje Abuja FCT for over one week. During the trial interlocutory applications were made and rulings delivered by the trial Judge. He was dissatisfied with the said rulings and appealed to the Court of Appeal upto the Supreme Court of Nigeria. In 2016, the Supreme Court returned the matter to the Federal High Court Abuja Judicial Division for him and others to face trial. The 3rd Respondent, being the Head of Court of the Federal High Court, assigned the case to Hon. Justice Anuli Chikere. All the parties appeared before the trial Judge on two occasions and the matter was adjourned due to pending appeal.

On the third occasion, the Court ordered that he alongside others should take their plea, which they did and were admitted to bail. The court alongside the prosecution and the defence team agreed for three clear dates namely 6th, 7th and 8th day of December 2016 for definite hearing of the matter. The transfer or request for it was done in bad faith and designed to secure his conviction at all cost. The 2nd Respondent has the powers to initiate, maintain and discontinue any criminal action in Court. Such power has been delegated to the 1st Respondent by the 2nd Respondent, who supervises or oversees the 1st Respondent. The constitutional powers donated to the 2nd Respondent cannot be used for persecution other than for prosecution; and that transferring a nine-year-old case from the Abuja Judicial Division to Lagos Judicial Division of the Federal High Court is for persecution and not prosecution.

We also stated in affidavit thus: It is the duty of the 3rd Respondent to assign cases to Judges of the Federal High Court without any hindrance or interference by any of the agencies. Request by the 1st Respondent for the transfer of a nine-year-old case from Abuja to Lagos Judicial Division of the Federal High Court inhibits the powers of the 3rd Respondent. For the order of mandamus to be issued, leave must be sought and obtained hence this application. It is in the interest of justice that this application is granted and leave so granted to operate a stay of every action in this matter pending the determination of this matter.

It is in interest of justice that this application be heard as a matter of urgency.

• Njoku is legal practitioner in the law firm of Amobi Nzelu & Co, Abuja.

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