Alex Enumah in Abuja
The Abuja division of the Court of Appeal wednesday ordered the return of the case file of a former governor of Benue State, Senator Gabriel Suswam to Justice Ahmed Mohammed for continuation of trial.
The appellate court in a unanimous judgment also stopped Justice Okon Abang, who is currently trying the former governor and another to hands off from the matter.
Suswam alongside his former Commissioner of Finance, Mr. Okolobia Okpanachi, are standing trial on a nine-count charge, bothering on money laundering and diversion of funds to the tune of N3.1 billion, preferred against them by the Economic and Financial Crimes Commission (EFCC).
They were arraigned before Justice Mohammed in 2015, who had handled the matter until his withdrawal last year, citing allegations of biase made against him by an online publication.
Following his withdrawal, the case was then re-assigned to Justice Abang for trial, a situation which led to the defendants approaching the Court of Appeal.
Delivering judgment in the appeal, the Court of Appeal in the judgment held that it was not satisfied with the reason given by Justice Mohammed for recusing himself from the matter, adding that the Chief Judge of the Federal High Court also erred in re-assigning the matter to another judge.
Justice Emmanuel Agim, who delivered the judgment, subsequently 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 recused himself from conducting the trial on account of fear, when all the parties had expressed confidence in him.
Although the court commended Justice Abang Okon who is currently adjudicating on the matter, for showing diligence 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 of the Federal High Court by re- assigning the case to him.
This, Justice Agim explained, was to strengthen the path of justice and protect the institution of the judiciary as the Chief Judge misapplied his discretion, when he re-assigned the case to Justice Abang, rather than directing Justice Mohammed 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 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 recusal, 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 AR Mohammed for continuation in an accelerated manner since all the parties have expressed confidence in him,” Justice Agim held.