April  24,2012

AKINGBOLA; The implication of discharging an accused on grounds of incompetence of the prosecution.

                            

                             By Chidi Wilson Nwachukwu Esq.

Justice Charles Archibong of the Federal High Court in Lagos Tuesday April 3,.2012 dismissed charges of fraud against the former Intercontinental Bank CEO Erastus Akingbola for lack of diligent prosecution by the Economic and Financial Crimes Commission EFCC. This is not the first time fraud suspects would slip through the hands of the EFCC due to poor prosecutorial and investigative skills, it will be recalled that the former Delta State Governor James Ibori  was given a clean bill of health in our court, only to be jailed for stealing, months later in a London court.

Erastus Akingbola was first arraigned by the Economic and Financial crimes Commission on Dec,2010 on charges of misuse of depositor’s funds, abuse of office, and money laundering to the tune of N5 billion. The charges were later amended to the tune of N42billion,it was reported that the prosecution amended the charges against Akingbola up to three times previously before the same Judge.   

   

The Lagos Judge did not only dismiss the charges, he described the five Senior Advocates of Nigeria leading the prosecution  as  incompetent and a drain in the public purse. The court pronouncement is an indictment on the integrity of the senior members of the Bar, with both legal and  moral implications. The first question that comes to mind is; can a man who was accused of misuse of public funds and money laundering  up to the tune of N42billion be dismissed on ground of incompetence of the prosecution? Even if charges were amended for  more than three times as reported, is it against the rules of court to amend charges when necessary?

       

What is uppermost in the mind of every Judge presiding a case is to ensure that justice is done between the parties , this is even when there are  apparent flaws,  errors bordering on technicalities  or incompetence of counsel. Amendment of charges is a practice known  to law and cannot be used against a party who sought to amend as long as such application to amend is within the time stipulated by the rules of court. From the reports, the prosecution counsel Mr. Ben Ukala  had asked for a stay of proceeding to enable them compile documents at the Appeal court to challenge the refusal of the Judge to disqualify himself from hearing the case. Could this have been responsible for  the Judge’s angry pronouncement in this case- an appeal to disqualify himself from hearing the case? It is difficult to agree with the Judge that the five Senior Advocates who formed the prosecutorial team in this case are incompetent, because they are not .These are Lawyers who have distinguished themselves in the profession, to the point of earning a silk. They have also appeared before different judges and for  various high profile cases.

However, the judge’s anger  and subsequent pronouncement can  be appreciated in the light of regular adjournments that may have attended this case. Nothing infuriates serious judges as junior lawyers coming to court only to end up taking unnecessary adjournments, when there are no reasonable excuses why their seniors are not in court personally to handle the matter. This may have been why he  described the lawyers as a drain in the public purse because so much money have been paid by the EFCC to firm out this case to the lawyers without giving it the diligence it deserves. Ultimately the accused suffered in the process, the reason why his charges were dismissed for want of diligent prosecution. In my years of practice I have observed that most serious judges would do everything to accelerate matters bordering on accused in detention, even if such a Judge  is tired and may want to rise  without attending to all the cases in the cause list for the day, he will still insist on hearing any application for bail listed, because the freedom of an individual or a group of individuals may be  at stake.

     

Perhaps there is more to this than meets the eye which only the Judge or the prosecution can answer. The Accused in this case was charged for misusing depositors funds and Nigerians, especially those who lost their money in the process  would like to see him put behind bars, and that is the moral side of it. Nigerians cannot buy the idea that because the prosecution was incompetent the accused was set free. The judge has a duty to ensure that those who commit crime must be punished, and not set them free merely on lack of prosecutorial diligence  as happened in the instant case. The onus is on the EFCC to re-arraign the accused and perhaps get a new team to prosecute the matter diligently, so that justice can done to the satisfaction of all parties.

   

  

Nwachukwu, a legal  Practitioner and Development Strategist , is the Managing Partner WILSON LEGAL Garki,Abuja.

08064281323.