Re-assigning Atuche’s six-year-old trial to new judge is perverse —Supreme Court

The Supreme Court on Wednesday revived the six-year-old trial involving a former Managing Director of Bank PHB Plc (now Keystone Bank), Mr. Francis Atuche; and his wife, Elizabeth, who were accused of stealing about N25.7bn belonging to the bank.

A five-man bench of the Supreme Court led by Justice Dattijo Muhammad unanimously nullified the order made by the Court of Appeal in September 2016, when the lower court directed the Chief Judge of Lagos State to re-assign the case to a new judge.

The apex court, after nullifying the Court of Appeal’s order on Wednesday, directed that Justice Lateefa Okunnu of the Lagos State High Court, before whom the prosecution had closed its case with 18 witnesses (six of whom were subpoenaed) and the defence had called eight witnesses, should continue with the case.

The Economic and Financial Crimes Commission had, in 2011, arraigned Atuche, his wife, Elizabeth, and the then Financial Officer of the defunct Bank PHB Plc, Ugo Anyanwu, before Justice Okunnu for allegedly stealing N25.7bn belonging to the bank while Atuche was the bank’s Managing Director.

But the case had been stalled since July 2014, when the Court of Appeal, Lagos Division, ordered the re-assignment of the case to Justice Lateef Lawal-Akapo, instead of Justice Okunnu, who had been presiding over it since its inception in 2011.

Again, following a fresh decision of the Supreme Court validating a similar trial involving a former Managing Director of Finbank, Mr. Okey Nwosu, the Court of Appeal in Lagos, in another judgment which it delivered on September 23, 2016, dismissed Atuche and his wife’s objection to the charges.

EFCC’s lawyer, Mr. Kemi Pinheiro (SAN), argued on Wednesday, shortly before the Supreme Court delivered its judgment, that the Court of Appeal had, while dismissing the defendants’ objection to the charges, “curiously” ordered the Chief Judge of Lagos State to re-assign Atuche and his wife’s trial to a new judge other than Justices Lawal-Akapo and Okunnu

In its judgment which it delivered after hearing the Atuches’ lawyer, Chief Anthony Idigbe (SAN) and EFCC’s lawyer, Pinheiro, the Justice Muhammad-led panel of the apex court described the Court of Appeal’s order for the re-assignment of the case to a new judge as “perverse.”

Justice Ejembi Eko, who prepared and read the lead judgment of the apex court, held that the order made by the Court of Appeal on September 23, 2016, for the remittance of case to the Chief Judge of Lagos State for the purpose of re-assigning it to another judge would not serve the interest of justice.

Justice Eko held that this was especially so because the Court of Appeal did not give any reason for directing the re-assignment of the case to a new judge.

“The order was a contentious one. It requires the lower court, in making the order, to give reasons for the order. No reason was given for the order,” Justice Eko said.

Transferring the case to a new judge would have required that it starts de novo (afresh).

Justice Eko insisted that the order of the Court of Appeal was “perverse” as neither Justice Lawal-Akapo nor Justice Okunnu was accused of any wrongdoing by the parties to the case to warrant the transfer of the case to a new judge entirely.

Justice Eko noted that considering that the case had almost reached the level of exchanging final addresses by both the prosecution and the defence before Justice Okunnu, the Court of Appeal ought to have ordered Justice Okunnu to continue with the case.

In his consenting contribution to the judgment, Justice Muhammad maintained that the order of the Court of Appeal was “perverse”, adding that “it is not in the interest of justice for the case to start de novo”.

Another member of the panel, Justice Kudirat Kekere-Ekun, also described the order of the Court of Appeal as “perverse”, adding that considering the advance stage that the case had reached before Justice Okunnu, it ought to be sent back to Justice Okunnuin order to protect the defendants’ right to constitutionally guaranteed right of the defendants to speedy trial.

In his contribution, another member of the panel, Justice John Okoro, also said, “It is not in the interest of justice to start the trial de novo as there is no tangible reason to remit the case to the Chief Judge for re-assignment to another judge.”

Justice Paul Galinje also agreed with the lead judgment as he also held that the order of the Court of Appeal was perverse.

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