By NewsBits
The Economic and Financial Crimes Commission (EFCC) has threatened to involve the military in executing the order issued on Wednesday by Justice Emeka Nwite for the arrest of the immediate past Kogi Governor Yahaya Bello.
EFCC’s lawyer, Kemi Pinheiro (SAN), issued the threat on Thursday while accusing Bello’s successor, Usman Ododo of frustrating his client’s effort to execute the order on Wednesday. Pinheiro said: “What happened yesterday was that a person with immunity (Ododo) came to whisk him (Bello) away to abort his arrest.
“We know that he is being kept in his successor’s house. Immunity is not attached to a building but to a person. We can invite the military to enter the building where he is being kept to execute the order of this court,” he said.
Pinheiro noted the law allows the EFCC to break into a building to effect arrest, adding that “what is edifying for him (Bello) is to come to court and not to continue to play game. ”He urged the court to give the prosecution up till next week to produce the defendant, adding: “We know what to do. He cannot stand in the way of the Constitution.
“A former president of the United States was indicted, he is attending court. He did not play pranks by filing frivolous cases. If he believes he is innocent, he should come before the court and defend it here,” Pinheiro said.
Earlier at the mention of the case, Pinheiro told the court that the matter was slated for the arraignment of the defendant (Bello).
He said since the defendant was not in court but represented by a team of lawyers, they should be served with the charge filed against their client, who escaped being served and arrested the previous day. Pinheiro urged the court to find out from the lawyer who announced an appearance for the defendant.
On being asked why Bello was absent, his lawyer, Abdulwahab Muhammed (SAN) said the ex-Governor was not in court because there is a subsisting order of a High Court of Kogi State barring the EFCC from arresting and prosecuting him in respect of the current case.
Mohammed added that the restraining order the fundamental rights enforcement suit, HCL/68M/24 filed by Bello had since been appealed by Jibrin Okutepa (SAN) one of the lawyers who represented the EFCC in the case. He said the appeal was pending at the Court of Appeal, adding that rather than await the outcome of the appeal, the EFCC rushed before the Federal High Court to file the 16-count charge and obtain an order for Bello’s arrest.
Mohammed said his client filed a preliminary objection, challenging the jurisdiction of the Federal High Court to look at the charge and to also issue the arrest warrant it issued on Wednesday. He added: “This court should ask them (lawyers to the EFCC) whether there is an order restraining them, whether they have not appealed and whether they are not trying to place this court on a collision course with the Court of Appeal.
“What happened in Wuse Zone 4 in Abuja yesterday when they laid siege on the house of the defendant was uncalled for. A major blood bath was averted. He (Bello) presented them (EFCC’s officials) with an order, they quickly ran to this court to obtain an order for a warrant of arrest. We are saying this court has no jurisdiction. The only business of this court today is to determine whether or not this court has jurisdiction to issue the order of warrant it made.”
Mohammed told the court that the substantive suit was decided on Wednesday in favour of his client, adding that the court held that Bello cannot be arrested or detained. Responding, Pinheiro faulted Mohammed’s claim that the substantive suit was decided in Bello’s favour.
He read part of the judgment, where he noted that the Kogi court ordered that the EFCC must first obtain the leave of a superior court before arresting or prosecuting Bello. Pinheiro added that since the substantive suit had been decided, the ex-parte order being referred to by Mohammed was no longer alive. He said the EFCC has fully complied with the order of the Kogi court because it has filed a charge and has also obtained an order for his arrest.
Pinheiro then applied that since ‘attempt to serve the defendant and bring him to court in line with the court’s order was frustrated yesterday by person of immunity, we now apply that a lawyer representing him should be served or accept service on his behalf.
He cited Section 382(5) of the Administration of Criminal Justice Act (ACJA) and sought the leave of court to deliver the charge and supporting documents to the defence lawyer, who has unconditionally announced his appearance for the defendant.
He added: “Therefore, it becomes unnecessary to serve the defendant personally, since the objective of service is to bring to the knowledge of the defendant the subsistence of the charge, the defendant having fully briefed a counsel to represent him and the counsel has also filed processes on behalf of the defendant.
“The issue of impracticability or impossibility does not arise. More particularly, having formally filed processes on behalf of the defendant, the necessity for the complainant to file a formal application for leave is dispensed with, because in furtherance of the decisions of the Supreme Court, this court can make use of materials in its file to make any findings or decision it deems fit.”
Pinheiro noted that there was already an application filed on behalf of the defendant by his lawyer, who is physically present in court and announced an unconditional appearance for the defendant. He added: “It therefore becomes unnecessary to bring a formal application to present the same materials to the counsel already before the court. Criminal proceedings before this court are summary trial.”
He faulted the prosecution’s suggestion that the charge be served on defendant’s lawyers, arguing that the procedure was that the prosecution must first attempt personal service before resorting to substituted service. He added that the prosecution also needs to file a formal application for leave to effect service on the defendant through substituted means.
The defence lawyer said he did not appear unconditionally by virtue of the notice of preliminary objection he filed on April 12. He noted that the EFCC filed an application on April 17 in which it also prayed the court for order of substituted service, which the court refused to grant on Wednesday, but only issued arrest warrant.
Mohammed submitted that the only option to the EFCC was for it to file an appeal and not to make similar application again. He added: “To repeat the same application orally is an abuse of the court’s process. In the unlikely event that the court wants to take cognisance of this oral application for substituted service, it is our submission that Section 382(5) of ACJA is subject to sub-section 4.”
Mohammed said sub-section 4 of Section 382 of the ACJA provides that there should be evidence that attempt was made at personal service, which failed before leave could be obtained for substituted service.
“There is no such evidence before the court. We urge this court to refuse the prayer, cognisance of the fact that it is a criminal trial. We don’t have the authority of the defendant to accept service of the charge,” Mohammed said. Justice Emeka Nwite adjourned till April 23 for ruling on whether or not the prosecution could serve the charge on Bello through his lawyer.
Source: The Nation
