*Says prosecution not law-abiding, has no respect for court
Justice Nicholas Oweibo of the Federal High Court in Lagos has struck out a two-count charge of illegal possession of firearms and ammunition filed against suspended Central Bank of Nigeria Governor Godwin Emefiele.
Justice Oweibo struck out the charge after holding that the prosecution has the statutory powers to withdraw any charge against a defendant at any trial stage.
The judge, in his ruling, held that the application filed by the Director of Public Prosecution, DPP seeking the withdrawal of the case was found in Section 108 of the Administration of Criminal Justice Act (ACJA), which empowers him to withdraw the charge and there is no requirement for the application to be in writing.
In allowing the withdrawal of the charge, the judge wondered what good it would do to the defence if the court did not allow the leave.
He stated, “The prosecution has shown that they are not law-abiding and have no respect for the court. The court cannot force them. What good will it be for the defendant who is in custody?
“What benefit will it be to keep the file in the court’s docket?
“I believe the proper thing is to allow them to withdraw the charge. They can abandon it, and the court will still have to strike it out for lack of diligent prosecution. The application to withdraw is at this moment granted.”
The government had accused Emefiele of possessing a single-barrel shotgun (JOJEFF MAGNUM 8371) without a licence, an offence contrary to section 4 of the Firearms Act Cap F28 Laws of the Federation 2004 and punishable under Section 27 (1b) of the same Act.
The defendant was accused of having in his possession 123 rounds of live ammunition (Cartridges) without a licence, which is contrary to section 8 of the Firearms Act Cap F28 Laws of the Federation 2004 and punishable under Section 27 (1)(b)(il) of the same Act.
The defendant had pleaded not guilty to the charge, a development which made the court to grant him bail in the sum of N20 million.
Part of the conditions included an order that the suspended CBN Governor should be remanded in the custody of the Nigerian Correctional Services pending the perfection of the bail terms.
But rather than obey the order, the Department of State Services (DSS) rearrested and kept him in their custody after a scuffle with some Correctional Service officers.
The Director of Public Prosecutions (DPP) at the Federal Ministry of Justice, Mohammed Abubakar had told the court that the federal government had decided to withdraw the charge based on emerging facts and circumstances of the case, which required closer investigation.
The DPP had stated that his oral application was brought in pursuant to sections 108 of the Administration of Criminal Justice Act and 107 of the 1999 Constitution.
But the defence counsel, Joseph Daudu (SAN) opposed the move, submitting that the court could not hear the oral application because the prosecution had not complied with the court’s order granting Emefiele bail.
He also argued that the there was no application before the court because the prosecution had not comply with the law and the rules of the court.
He had stated, “It must be in writing; I have never heard of an application to withdraw a case without the prosecution filing a nolle prosequi. So I will urge the court that in the interest of justice, its needs to prevent this abuse of the legal processes.
“Every application they brought against any citizen of this country under section 174 is a nolle prosequi; the government cannot come before the court orally for that; it ought to be by “nolle prosequi”, at this point in term there is no application before the court.
“I urge the court to reject the application and order the learned DPP to continue today’s business,” he said.
“We have an application before the court, which accused the AGF of disobeying the court’s order, ordering that the respondent/ defendant should be remanded in the custody of the Nigeria Correctional Service.
“The court also granted the defendant an order of substituted service to be published in three National newspapers, and after we obtained these orders, they brought an application of stay of execution of the bail, and we say unless they obey that order, the court cannot proceed,” Daudu stated.
While responding to the defence arguments, the DPP said nolle prosequi differed from withdrawing a charge; he cited section 108 of the Administration of Criminal Justice Law 2015.
He stated that while Section 107 provides that the application for withdrawal shall be in writing, Section 108 is silent on the mode, it gives the prosecutor the authority to apply to the judge, and our application was made under Section 108.