2nd March, 2013
Abiodun Onafuye/ Abeokuta
Justice Olanrewaju Mabekoje of the Ogun State High Court, sitting in Isabo, Abeokuta, southwest Nigeria, Friday granted the application of the former governor of the state, Otunba Gbenga Daniel for the adjournment of a criminal case instituted against him.
The presiding judge in his ruling submitted that the trial of Daniel be adjourned till the determination of an appeal he had filed before the Appeal Court in Ibadan, the Oyo State capital.
The Economic and Financial Crimes Commission, EFCC, arraigned Daniel before the court on a 38-count charge bordering on financial impropriety and fraudulent conversion of land belonging to the state to his personal use while in office.
Justice Mabekoje had on 8 January, 2013 rejected Daniel’s prayer that counts 1-13 of the 38 charges preferred against him by EFCC be quashed on the grounds that a commission of enquiry set up by the State government had already indicted him on the said charges.
Counsel to the embattled former governor, Prof. Taiwo Osipitan, (SAN) who led 17 lawyers to the court had at the last sitting, on Friday, 22 February, 2013 informed the court that he had filed an application at the Court of Appeal in Ibadan, Oyo State to appeal a ruling given by the trial Judge, Justice Mabekojea.
In the course of the trial, Osipitan also informed the court that he had also filed an application at the same court seeking the order of the appellate court for a stay of proceedings of the trial at the High court pending the hearing and
determination of his application at the Court of Appeal.
He showed the judge the appeal processes at today’s sitting and on that premise, Osipitan argued that the case be adjourned pending the outcome of the appeal.
He reasoned among others, that if the trial continued and later the appeal Court ruled in his client’s favour, all the efforts of the Judge and the counsel would be an exercise in futility, citing many legal authorities to buttress his point.
Mabekoje had at the last sitting insisted that copies of the applications must be made available by the next adjourned date which is Friday.
When the matter came up today, EFCC’s Counsel, Mr. Adebisi Adeniyi opposed the application, describing it as incompetent.
He argued among others that, the position of the law was that, such an adjournment could be granted based only on an order of a higher court, explaining that there was no evidence before the court that any court had given such an order.
He contended that Section 40 of the EFCC Act of 2004 which is a statutory provision forbade application of such nature in a case filed by the agency.
According to Adeniyi, ”mere reference to the application cannot form the basis for stay of proceedings in this matter, it is not automatic.”
Reacting to EFCC counsel’s argument, the defence counsel, Osipitan argued that his client had the right of qppeal, ”and such right must be pursued without any hindrance.”
Osipitan further argued that Section 40 of the EFCC Act which Adeniyi cited infringes on the right of his client, saying, “Our Lordship should preserve that right for us.”
He picked holes in Adeniyi’s submission and cited many legal authorities to buttress his argument.
In his ruling, Mabekoje granted Daniel’s application for adjournment and posited that the application before him was that of an adjournment and not of stay of proceedings as against Adeniyi’s submission.
While admitting that both had the same effect, he stressed that the principles governing them were different.
He said that where an applicant was able to show a good cause, his application for adjournment could be granted, ”in this case, good cause has been shown,” Mabekoje stated.
The trial judge also said that the decision whether or not to entertain the application for stay of proceedings rested with the appellate court and that the lower court could not share such powers with it.
On the issue of statutory provision of Section 40 of the EFCC Act of 2004, Mabekoje upheld the position of Osipitan that the court derived its powers from the constitution and that ”a statutory provision cannot override such powers.”
He therefore granted the application for adjournment pending the hearing of the application for stay of proceedings fixed for 11 April, 2013 at the Court of Appeal in Ibadan.
“The case will continue to be adjourned from time to time in order not to cause any delay,” he said.
Consequently, counsel were enjoined to find time for continuation of the trial after the Appeal Court case on April
11.
The case was adjourned till Monday, 22 April, 2013 for the continuation of the hearing.