THE HONOURABLE Justice James Omotosho of the Federal High Court, Abuja on Wednesday, dismissed the no-case submission filed by suspended Prof. Cyril Ndifon and his lawyer, Mr Sunny Anyanwu, against the charge by the Independent Corrupt Practices and Other Related Offences Commission (ICPC).
Justice Omotosho, in a ruling, held that the evidence led by the prosecution constituted a prima facie case against the duo.
Justice Omotosho, therefore, ordered Ndifon, the suspended Dean of Faculty of Law, University of Calabar (UNICAL), and Anyanwu to enter their defence.
Prof Ndifon and Anyanwu had, on Feb.19, filed a no-case submission after the ICPC closed its case. The duo, through their lawyer, Joe Agi, SAN, said there was no evidence adduced by the prosecution on which the court could convict them, insisting that the commission failed to establish a prima facie case against them.
They, therefore, formulated three issues for determination.
These include: “whether the originating charge dated and filed 30th October, 2023 was initiated by due process of law to confer jurisdiction on the honourable court entitling the court to grant an order amending same and if the amended charge filed Jan. 22, is competent to confer jurisdiction on the court.
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“Whether from the evidence adduced, a prima facie case has been made out against the defendants as to warrant them entering a defence.
“Whether the case of the prosecution was so damaged under cross examination that no reasonable tribunal will convict on it.”
But the ICPC, in opposition, filed a counter affidavit on Feb. 23, praying the court to dismiss the application.
It could be recalled that Prof Ndifon was, on Jan. 25, re-arraigned alongside Anyanwu on an amended four-count charge bordering on alleged sexual harassment and attempt to perverse the cause of justice.
Anyanwu, who is one of the lawyers in the defence, was joined in the amended charge filed on Jan. 22 by the ICPC on allegation that he called TKJ, the star witness, on her mobile telephone during the pendency of the charge against Ndifon and threatened her.
The ICPC lawyer, Osuobeni Akponimisingha, had, on Feb. 14, announced the closure of their case after calling four witnesses, including a female diploma student identified as TKJ.
Delivering the ruling on Wednesday, Justice Omotosho formulated two issues for determination.
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These include, “whether the court has requisite jurisdiction to hear and determine the suit with respect to provisions of the Corrupt Practices and Other Related Offences Act, 2000, and whether the prosecution has made out a prima facie case against the defendant.”
He said the issue of jurisdiction is a threshold which must be decided as soon as possible. According to him, jurisdiction is the power by which a court of law acts; it fuels the authority of the court and where it is lacking, the labour of the court will be in vain.
The judge said that though the provision of ICPC Act relied upon by Agi showed that FHC was not mentioned as a court with jurisdiction over the Act, he said that the court was bound by the decision of the Supreme Court in the case of Aweto Vs. FRN(2018) where it cited provisions of ICPC Act, 2000 and Section 251of 1999 Constitution (as amended).
“The purport of the above decision is that the Federal High Court has requisite jurisdiction to entertain matters based on the Corrupt Practices Act 2000.
“This is premised on the powers of the Federal High Court under Section 251 of the 1999 Constitution vesting it with exclusive jurisdiction over civil and criminal matters involving federal agencies.
“The ICPC is a federal agency and likewise the 1st defendant is a public officer in a federal institution. All these factors make this court a proper venue to try the offences,” he said.
On the issue of territorial jurisdiction, the judge disagreed with the defence counsel that the court was not the right venue for the trial since the cause of action arose in Cross River.
Citing Order 2 Rules 2 and 3 of the FHC (Civil Procedure) Rules, 2019, Justice Omotosho held that a suit could be commenced in any judicial division of the Federal High Court.
On whether the ICPC had powers to investigate and prosecute offences under the Cybercrimes Act, 2015, he said the commission is a prime federal law enforcement agency with the mandate of investigating and prosecuting offences of corruption, fraud, bribery and abuse of office by public officers, going by its Act under Section 47.
“This makes it a relevant law enforcement agency with requisite powers to prosecute offenders under the Cybercrimes Prohibition Act. Consequently, the ICPC has powers to prosecute the Defendants,” he said.
With respect to the issue of no-case submission, the judge said a defendant could elect to rest his case on the prosecution’s case, enter his defence or make a no-case submission.
According to him, Section 303 of the Administration of Criminal Justice Act (ACJA), 2015 makes provision for what the court should look out for in upholding or dismissing a no-case submission.
He said these include, “whether the essential element of the offence has been proved; whether there is evidence linking the defendants with the commission of the offence with which they are charged;
“Whether on the face of the record, the evidence of the prosecution has been so discredited and rendered unreliable by cross examination that it would be unsafe to convict on such evidence.
“Whether the evidence so far led is such that no reasonable court or tribunal would convict on it; and
“Any other ground on which the court may find that a prima facie case has not been made out against the defendants for them to be called upon to answer.”
The judge observed that “the defendants are facing a charge of causing a person to send pornographic images of themselves, soliciting for nude pictures and committing acts intended to pervert the course of justice.”
According to him, the evidence so far led by the prosecution shows prima facie that the 1st defendant (Ndifon) solicited for the nude photos of PW2 (female diploma student) with the promise of giving her admission into the Faculty of Law of the University of Calabar.
“PW1 who was one of the investigators testified that examinations carried out on the phone of the 1st defendant reveals messages from 1st defendant to PW2 soliciting for these images.
“This court thinks these pieces of evidence requires some explanation from the 1st defendant as to the purpose and intents of these messages.
“With regards to counts 3 and 4, evidence led by the prosecution shows that while the original charge was pending, the 1st defendant sent the phone number of PW2 to 2nd defendant (Anyanwu) who was counsel to 1st defendant to call her.
“It is alleged by the prosecution that the purpose of the call is for PW2 not to honour the invitation of the ICPC. Taken on its own, this piece of evidence prima facie establishes a case of intent to pervert the cause of justice. The defendants are therefore required to explain the relationship between 2nd defendant and PW2. These and other pieces of evidence need the defendants to explain their side of the story,” he said.
The judge, however, said that “holding that a prima facie case has been established does not necessarily imply that the court finds the defendants guilty of the charge.”
According to him, it is simply to allow the defendants exhaust their options for their defence and to clear every unresolved issue which may weigh on the mind of the court in reaching a final decision.
“The defendants are still presumed innocent until proven guilty and the prosecution still has the duty to prove the charge beyond reasonable doubt,” he said, quoting Section 135 (1) of the Evidence Act, 2011.
He also held that the issue of the legality of the evidence obtained from Ndifon’s phone was a non-starter.
“I must not fail to address the issues raised by the defendants counsel as to the offence of cyberstalking. This court opines that the said issue is a matter for final address and not at this stage of determining whether or not a prima facie case has been made out against the defendants.
“Furthermore, the issue of the legality of the evidence obtained from the phone of the 1st defendant is a non-starter. Under the Evidence Act 2011, relevance is the key determining factor of whether a piece of evidence is admissible or not,” he said, citing Section 14 of the Evidence Act.
He said: “The import of the above sections imply that where evidence is purportedly obtained improperly by security agencies, such evidence will not be inadmissible strict sensu. The court is urged to put such piece of evidence through some tests to determine its admissibility.
“Unlike in jurisdictions, such as the United States of America, where such evidence is regarded as the fruit of a poisoned tree and hence inadmissible, it is not so in Nigeria.
“It is therefore the opinion of this court that the probative value of admitting the evidence from the phone of 1st defendant against the defendants far outweighs rejecting same.
“Consequently, this objection is overruled. In final analysis, the no case submission of the defence is likely to fail as the evidence led by the prosecution constitutes a prima facie case against the defendants.
“Consequently, the no case submission is overruled and the defendants are ordered to enter their defence,” Justice Omotosho declared.
The matter was adjourned until Tuesday, March 12 for the defendants to enter defence. (NAN)
