The Federal High Court sitting in Lagos has struck out the “illegal possession of firearm” charge against suspended Central Bank of Nigeria (CBN) Governor, Mr. Godwin Emefiele, following an application by the Federal Ministry of Justice to withdraw it.
Justice Nicholas Oweibo struck out the charge on Thursday after holding that the prosecution had the statutory powers to withdraw a charge against a defendant at any stage of the trial.
The judge held that the application filed by the Director of Public Prosecution (DPP), Mr. Mohammed Abubakar, seeking the withdrawal of the case is found in Section 108 of the Administration of Criminal Justice Act, which empowers him to withdraw the charge and there is no requirement for the application to be in writing.
The defence, through its lead counsel, Senior Advocate of Nigeria, Joseph Daudu had argued that the prosecution could not withdraw the charge unless the government purges itself of its disobedience to the court’s order of 25th July granting Emefiele bail.
Justice Oweibo condemned the conduct of the prosecution. In allowing the withdrawal of the charge, the judge wondered what good it would do to the defence if the court did not allow the leave.
He said: “The prosecution has shown that they are not law-abiding and have no respect for the court. The court cannot force them. What good will it be for the defendant who is in custody? Of what benefit will it be to keep the file in the court’s docket?
“To stop the embarrassment of the court and to keep its integrity intact, I believe the proper thing is to allow them to withdraw the charge. They can simply abandon it and the court will still have to strike it out for lack of diligent prosecution. The application to withdraw is hereby granted”.
The Federal Government had accused Emefiele of possessing a single-barrel shotgun (JOJEFF MAGNUM 8371) without a licence, an offence contrary to Section 4 of the Firearms Act Cap F28 Laws of the Federation 2004 and punishable under Section 27 (1b) of the same Act.
The defendant was also accused of having in his possession 123 rounds of live ammunition (Cartridges) without a licence, which is contrary to Section 8 of the Firearms Act Cap F28 Laws of the Federation 2004 and punishable under Section 27 (1)(b)(il) of the same Act.
The defendant had pleaded not guilty to the charge, a development which made the court grant him N20 million bail.
Part of the conditions included an order that the suspended CBN governor should be remanded in the custody of the Nigerian Correctional Service pending the perfection of the bail terms.
However, rather than obey the order, the Department of State Services (DSS) rearrested and kept him in their custody after a scuffle with some Correctional Service officers.
Emefiele’s lawyers subsequently brought an application seeking leave to serve the bail ruling on the Federal Government, preparatory to filing contempt proceedings
The court granted leave to Emefiele to serve DSS Director General, Yusuf Bichi, the court’s ruling admitting him to bail.
Justice Oweibo specifically granted Emefiele permission to publish the bail ruling, delivered on 25th July in three national newspapers circulating within the court’s jurisdiction.
The court held that the publication through substituted means would be deemed as good and proper service to the prosecutor.
After this was done, Abubakar subsequently appeared before the court seeking to withdraw the charge based on “emerging facts and circumstances” of the case, which he said requires closer investigation.
The DPP said his oral application was brought pursuant to Section 108 of the Administration of Criminal Justice Act, 2015.
But Daudu opposed the move, submitting that the court could not hear the oral application because the prosecution had not complied with the court’s order granting Emefiele bail.
He also argued that there was no application before the court because the prosecution had not complied with the law and the rules of the court.
He stated, “It must be in writing; I have never heard of an application to withdraw a case without the prosecution filing a nolle prosequi. So, I will urge the court that in the interest of justice, its need to prevent this abuse of the legal processes.
“Every application they brought against any citizen of this country under section 174 is a nolle prosequi; the government can not come before the court orally for that; it ought to be by ‘nolle prosequi’, at the point in term there is no application before the court.
“I urge the court to reject the application and order the learned DPP to continue today’s business,” he said.
“We have an application before the court, which accused the AGF of disobeying the court’s order, ordering that the respondent/defendant should be remanded in the custody of the Nigerian Correctional Service.
“The court also granted the defendant an order of substituted service to be published in three National newspapers, and after we obtained these orders, they brought an application of stay of execution of the bail, and we say unless they obey that order, the court can not proceed,” Daudu stated.
While responding to the defence arguments, the DPP said nolle prosequi differed from withdrawing a charge; he cited section 108 of the Administration of Criminal Justice Law 2015.
He stated that while Section 107 provides that the application for withdrawal shall be in writing, Section 108 is silent on the mode, it gives the prosecutor the authority to apply to the judge, and our application was made under Section 108.
