Justice Mohammed Idris of a Federal High Court, Tuesday, fixed next week Monday, for continuation of trial of Dr. Waripamo-Owei Dudafa, a Special Assistant on Domestic Affairs to former President Goodluck Jonathan, and one Iwejuo Joseph Nna, who are standing trial before the court on alleged N 1. 6 billion fraud.
Justice Idris fixed the date, after delivery a bench ruling on the applications filed by the two defendants, asking the court to refer the constitutionality of the trial judge who has been elevated to Court of Appeal, to continue hearing the matter.
The Dudafa and Nna through their lawyers, Mr. Gboyega Oyewole (SAN), Ademola Adefolaju, and Ige Asemudara, also asked the court to suspend trial pending adjudication on the constitutional issue raised.
The defendants in their motion on notice filed before the court, seeking for the two reliefs stated that that by virtue of 1999 Constitution as amended, a Justice of Court of Appeal does not offend the provisions of Section 253 of the Constitution, and rob the Federal High Court of its jurisdiction over the charges pending before it.
The two defendants in their motions averred that the issue of Fiat by the President of the Court of Appeal to a Justice of Court of Appeal, to preside and continue to adjudicate on matter upon which the Federal High Court has jurisdiction does not violate Section 36(1), 239, 240 and 251 of the Constitution, and tinkered with the independence of the Federal High Court.
The defendants also stated that in view of section 295 (2) of the Constitution, a judge who made a reference of question of law touching on jurisdiction to the Appeal Court, can proceed to continue to hear or determined the pending charge wherein the question arose.
They also stated that in view of provision of Sections 34(1)(a)and (c) of the constitution set against the provision of Sections 237, 240, 241, 249, 251, 252 and 253 of the same Constitution, it is not an aberration or degrading treatment to put a Honourable Justice of the Court of Appeal in a situation where he has to mandatorily work by fiat as a judge of Federal High Court.
Responding, lawyer to the Economic and Financial Crimes Commission (EFCC), Mr. Rotimi Oyedepo, while urging the court to dismissed the applications, submitted that there are three conditions present before a matter can be refer to Court of Appeal in view of section 295 (2) of the Constitution.
The conditions according to Oyedepo are: Constitution, it must have reason in course of trial, and raising issues of substantial law.
Oyedepo further submitted it is not appropriate to refer an issue to Appeal Court merely because it is been raised for the first to time or it is a matter of general interest. Adding that the Judge is bound not to refer a matter to Court of Appeal, if the interpretation of that law is not that difficult or ambiguous for the court to determine.
Alternately, Oyedepo said that in case the court wants to refer the matter to Court of Appeal, , Section 305, is valid and Constitutional, and that Section 295(2) empowered the court to refer the matter to Court of Appeal but did not preclude the court from assuming jurisdiction in determine the culpability of the defendants on trial, but has the options of proceeding with matter but not delivering verdict on the matter.
He cited section 306 of Administration of Criminal Justice Act (ACJA) 2015, stater that the court should not suspend proceedings.
Ruling on the submissions of both parties, Justice Idris, after citing several plethora authorities, stated that he will refer the parties’ applications to Court of Appeal, for adjudication.
