The Economic and Financial Crimes Commission (EFCC) has urged the Supreme Court to send Olisa Metuh, an ex-spokesperson for the Peoples Democratic Party (PDP), back to prison.
Mr Metuh was jailed seven years for money laundering on February 25, 2020, but got out of prison in December after the Court of Appeal in Abuja nullified his previous trial and ordered retrial.
The Court of Appeal had without considering the merit of the money laundering charges, set aside the proceedings leading to Mr Metuh’s conviction by the Federal High Court in Abuja on the grounds that the trial judge allegedly exhibited bias against the ex-spokesperson of the PDP and his legal team.
On December 24, 2020, a judge of the Federal High Court in Abuja, Nkeonye Maha, granted a N250 million bail to Mr Metuh and permission to travel abroad pending the commencement of his retrial.
But the EFCC, which seems not to be too keen about pursuing a retrial, on January 27, 2021, filed six grounds of appeal at the Supreme Court to challenge the December 16, 2020 verdict of the Court of Appeal which ordered the fresh trial.
PREMIUM TIMES on Thursday obtained copies of EFCC’s notice of appeal and the two other ones filed in respect to the case.
‘Gross miscarriage of justice’
The commission’s lawyer, Sylvanus Tahir, who has led the prosecution team from the inception of the case in January 2016, argued that the judgment of the Court of Appeal “occasioned a gross miscarriage of justice.”
The anti-graft agency urged the Supreme Court to set aside “the judgment of the lower court which nullified the judgment of the trial court and remitted the case back to the trial court for a fresh trial.”
It also sought an order “for the invocation/application by the Supreme Court of section 22 of the Supreme Court Act to do what the Court of Appeal ought to have done in going into the merits of the case as determined by the trial court to decide if the appeal should have been dismissed or not.”
Other prayers sought by appellant are: “An order de-nullifying the nullification of the judgment of the trial court by the court below and reinstating the conviction, sentences and fines imposed on the 1st respondent (Mr Metuh) by the judgement of the trial court.
“An order committing/reinstating the 1st respondent back to the Correctional Centre at Kuje (Abuja) to complete his term of imprisonment.”
The commission, however, put forward an alternative prayer which is an order setting aside the Court of Appeal’s judgment and another that the appeal be heard on merit by another panel of the Court of Appeal.
Conviction, Appeal Court verdict
The trial judge, Okon Abang of the Federal High Court in Abuja, had, after a four-year-long trial, convicted Mr Metuh and his firm, Destra Investment Limited, of money laundering.
While he sentenced Mr Metuh to seven years in jail, he ordered the winding up of the company and the forfeiture of its assets to the Federal Government.
The convicts were found guilty of laundering N400 million which they received fraudulently from the Office of the National Security Adviser (ONSA) then headed by Sambo Dasuki in 2014, preparatory to the 2015 general elections.
The judge also convicted them on other money laundering charges involving a $2 million cash transaction executed without going through a financial institution in violation of money laundering law.
Although Mr Dasuki was not prosecuted as a defendant in the case, the judge in his judgment indicted Mr Dasuki, the ex-NSA, for breach of trust and acts of corruption by his action of doling out N400 million to Mr Metuh from the ONSA’s account without any legal basis.
The trio of Mr Metuh, his firm, Destra Investment Limited, and Mr Dasuki filed separate appeals against the trial court’s judgment.
A three-man panel of the Court of Appeal led by Stephen Adah, in its December 16, 2020 judgment refrained from making a pronouncement on the merit of the money laundering charges, but nullified the entire proceedings of the trial court on the grounds that they were tainted by the judge’s bias against Mr Metuh and his legal team.
“In the instant case, the learned trial judge on record documented how he was worried by the act of the appellant and his counsel and the narrative suggests someone who has an axe to grind against the appellant and his legal team,” the Court of Appeal’s judgment had read in part.
The court therefore ordered the Chief Judge of the Federal High Court to reassign the case to another judge of the court, apart from Mr Abang, who passed the contested conviction, for a retrial.
Dissatisfied with the Court of Appeal’s judgment, the EFCC on January 27, 2021 filed three notices of appeal against the separate verdicts of the Court of Appeal on Mr Metuh, Destra Investments and Mr Dasuki, a retired colonel.
Among its six grounds of appeal against the verdict on Mr Metuh, the EFCC argued that the decision of the lower court “is unreasonable and unwarranted in the circumstances of this case”.
The agency also contended that the Court of Appeal judges “erred in law and occasioned miscarriage of justice” by adjudging “comments, remarks, views and opinion expressed by the learned trial judge in his judgment as amounting to bias”.
The commission argued that such “comments, remarks, views and opinion” expressed by the trial judge “in obiter dictum” (a Latin phrase which can mean, ‘said in passing’), “is not appealable”.
The EFCC added, “It is not every pronouncement made by a judge that can be made a subject of an appeal.
“Grounds of appeal must be directed a ratio decidendi (the rationale for the decision) of a lower court.
“Obiter dictum does not decide the life issues in the matter.
“The comments, remarks, views and opinion of the learned trial judge came after the conviction of the appellant, hence it had no bearing on the merit of the case.
“The learned trial judge was at liberty to make remarks and they did not detract from the judicial duties the court carried out.
“The said remarks being merely a passing incidental ‘by the way comment’ did not affect or embody the resolution of the issues before the trial court.”
It added that nullifying the judgment of a trial court on account of comments, remarks, views and opinion expressed by a judge “would set a bad precedent, as it would open the floodgate for frivolous appeals by a litigant as in this case merely on account of a learned trial judge’s obiter dictum which does not affect the resolution of the live issues before the court.”
The commission submitted to the Supreme Court in another grounds of appeal that “the court below without cogent evidence of judicial bias made out against the learned trial judge, declared as a nullity, the judgment of the trial court and consequently remitted the case back to the trial court for a fresh hearing.”
In another grounds of appeal, the commission argued that the Court of Appeal, although an intermediate court, arrogated to itself “the power of finality”, an exclusive reserve of the apex court, by considering only two issues of bias submitted to it by parties and failing to consider the seven others which it “termed or labelled” as “academic.”
“Failure of the court below to consider and determine all issues was a violation of the appellant’s right to fair hearing,” the commission added.
Meanwhile, the bulk of the grounds of appeal filed by the EFCC are the same in the separate notices filed in respect of cases concerning Mr Metuh, his firm, Destra Investment, and Mr Dasuki.
But in the notice of appeal of four grounds filed in respect of Mr Dasuki’s case, the commission argued that the appeal court caused a miscarriage of justice by dismissing its preliminary object dated July 7, 2020 against the ex-NSA’s appeal.
The commission argued that Mr Dasuki not being an accused person or a party to the particular criminal proceedings, by virtue of section 243 of the Nigerian Constitution, there was no basis for him to file an appeal to the Court of Appeal.
Meanwhile, Mr Dasuki is still facing separate trials at the High Court of the Federal Capital Territory in Maitama over alleged diversion of ONSA’s funds ahead of the 2015 general elections.
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