Alex Enumah in Abuja
Justice Inyang Ekwo of the Abuja Division of the Federal High Court, on Friday discharged and acquitted the Peoples Democratic Party (PDP) candidate in the last governorship election in Osun State, Senator Ademola Adeleke, in the alleged examination malpractice charge filed against him and four others.
Adeleke’s discharge and subsequent aquittal was due to the withdrawal of the criminal charge against him by the prosecution.
The Police had in 2018 arraigned Adeleke along with Sikiru Adeleke (who is said to be the senator’s relative), Alhaji Aregbesola Mufutau (the school principal), Gbadamosi Thomas Ojo (a school registrar) and Dare Samuel Olutope (a teacher) on a four count charge bordering on fraud.
However, after calling four witnesses in proof of the criminal allegations, the police on Thursday applied to withdraw the charge against Adeleke on grounds that he has not been available to continue trial since he was granted leave to travel abroad on medical grounds.
Delivering ruling in the police application, Justice Ekwo held that he was minded to discharge and acquit Adeleke in view of the prosecution’s decision to withdraw charges against him.
Justice Ekwo relied on Section 108(3) in making the order acquitting Adeleke.
Section 108(3) of the ACJA states: “In any trial before a court in which the prosecutor withdraws in respect of the prosecution of an offence before the defendant is called upon to make his defence, the court may, in its discretion, order the defendant to be acquitted if it is satisfied, on the merits of the case, that the order is a proper one, and when an order of acquittal is made, the court shall endorse its reasons for making the order on the record. ”
The court on May 6, 2019 granted Adeleke permission to travel to the United States on grounds of ill-health.
Since then, Adeleke has not returned for the trial to continue, even though the prosecution has called four witnesses so far.
On Thursday, prosecution lawyer, Simon Lough argued an application in which he sought to sever the charge, to exclude Adeleke from the trial in view of his continued absence.
Lough was of the opinion that the only way to prevent further delay in the case was to continue with the trial of the other available four defendants, since Adeleke has stayed away from the country, claiming to be sick and attending to his health in the US.
Lawyer to Adeleke, Alex Izinyon (SAN) and other defence lawyers in the case did not object to the prosecution’s decision to amend the charge.
They however disagreed with the prosecution on the appropriate order to be made; whether Adeleke should be simply discharged, based on the withdrawal of the charge against him, or whether he should be discharged and acquitted.
In a ruling on Friday, Justice Ekwo held that although the prosecution, by its application, sought to sever the charge, he will take its (prosecution’s) intention to mean withdrawal of the case against Adeleke.
The judge said his decision was informed by the fact that no law allows the prosecution to sever a charge, but to withdraw against a defendant and to amended at any time before judgment.
He noted that Section 108 of the Administration of Criminal Justice ACT (ACJA) allows the prosecution to undertake withdrawal of charges, while Section 246 of the Act deals with amendment of charge.
Justice Ekwo said: “the law is that the prosecution can amend the charge at any time before judgment. There would have been nothing wrong if the prosecution had simply applied to withdraw against the first defendant (Adeleke).
“I am seeing this application (the one argued on Thursday by the prosecution lawyer) as one that simply seeks to withdraw, and I so hold.
“This withdrawal is taking place after the prosecution has called four witnesses. And from the record of the court, the evidence of the prosecution witnesses were concluded.
“The consequential order to be made upon the withdrawal of a charge is at the discretion of the court under Section 108(3) of the ACJA,” the judge said.
Justice Ekwo held that, since the prosecution sought to withdraw against the first defendant at this stage, he was of the view that the appropriate order to be made is that of acquittal, because the evidence of the prosecution’s four witnesses have been concluded and the witnesses have been discharged.
The judge then made an order allowing the prosecution’s withdrawal of the charge against Adeleke and proceeded to make order acquitting the first defendant (Adeleke).
He adjourned till June 25 for the continuation of the trial in relation to the other defendants – Sikiru Adeleke, Alhaji Aregbesola Mufutau, Gbadamosi Thomas Ojo and Dare Samuel Olutope.
In the charge, Ademola and Sikiru were accused of fraudulently, through personation, registering as students of Ojo-Aro Community Grammar School, Ojo-Aro, Osun State to enable them sit for the National Examinations Council (NECO) examination of June/July 2017.
The other three defendants were accused of aiding the commission of the alleged offence, in the charge filed in the name of the Inspector General of Police (IGP).
The prosecution amended the charge in December 2018 and raised the counts on the charge to seven, following which the defendants were re-arraigned on the amended charge on December 16, 2018.