…As Court Adjourns Suit Till July 9
SAN FRANCISCO, June 10, (THEWILL) – A Federal High Court sitting in Abuja has been asked to quash the charges filed against a United States-based lawyer, Ephraim Emeka Ugwuonye, by the Federal Government.
The lawyer was accused of defrauding the Federal Government of $1.550, 000.00 being proceeds of real estate transactions with the Nigeria Embassy in Washington DC.
But the lawyer, Tuesday, questioned the competence of the charge on the ground that the proof of evidence did not establish a prima facie case against him, in a motion on notice filed before the court, thus asking the court to quash the charges against him.
The charges against him reads: “That you Ephraim Emeka Ugwounye, sometimes between December 2007 and March 2011 at various places including Abuja, within the jurisdiction of the High Court of the Federal Capital Territory, being entrusted with the sum of $1,550,000.00 (One Million, Five Hundred and Fifty Thousand US Dollars) property of the Federal Government of Nigeria, dishonestly converted to your own use the said entire sum of $1,550,000.00 (One Million, Five Hundred and Fifty Thousand US Dollars) in violation of the agreement between you and the Federal Government of Nigeria through its Embassy in the United States and thereby committed an offence punishable under section 312 of the penal code Act , Cap.532, Laws of the Federation of (Abuja) 1990.”
Invoking the provisions of section 36 (6)of the 1999 constitution which deals with fair-hearing, Ugwuonye, argued that the requirement that the proof of evidence in information or charge should state a prima facie case against the accused person was not only a statutory requirement, but also a constitutional due process and fair hearing requirement.
He said the rule of law that a criminal charge or indictment must contain facts in proof of evidence sufficient to establish prima facie case is merely giving force and effect to the constitutional requirement of fair hearing.
And referring to the legal principles enunciated in the case of Ikomi v State and Abacha V State, the lawyer said it was settled law that for a charge to be liable to be quashed, it must be established among others that by the proofs of evidence or statements filed in support of the charge, the accused person was not linked with the offence.
In this case, the information only contains the charge, the list of witnesses to be called at the trial and in the proof of evidence, only the statement of the accused, which contradicts on the face of it the particulars of the offence charged and a blank assets declaration form.
“No written statement of the offence for which the accused was arrested and detained was attached or indicated in any form. No written statements of the witness to be called at trial were attached,” he said.
Ugwounye further urged the court to quash the charge against him on the ground that it constituted an abuse of the process of the court.
He argued that it was an abuse of the process of the court to prosecute a person for exercising a right granted to him by the constitution.
“It is an abuse of process to make an accused person face a trial he ought not to face,” he said as he further asked the court to declare section 27 of the Economic and Financial Crimes Commission (EFCC) Act void on the ground that it was in conflict with section 35 [2] of the 1999 constitution.
He therefore urged the court to decline jurisdiction in adjudicating over the case, saying it could not enforce a law that was inconsistent with the constitution.
He also submitted that “the judicial powers of our courts must be exercised in a manner consistent with the constitution,” adding “ To enforce or interpret a law that is inconsistent with the constitution is outside the jurisdiction and powers of the court.”
He maintained that “This court would be ultra vires its powers if it gives force to any law that is inconsistent with the constitution,” stressing that “as a threshold matter, this court must first determine whether or not section 27 of the EFCC Act is inconsistent with the section 35 (2) of the constitution.”
After hearing his submissions, the trial judge, Justice Stephen Chukwu, adjourned hearing of the matter to July 9 .
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