A Federal High Court in Abuja yesterday rejected the request by former National Security Adviser (NSA), Mohammed Dasuki for an indefinite adjournment in his trial for alleged illegal possession of firearms and money laundering.
Dasuki had filed a motion, seeking an indefinite adjournment in his trial pending the determination of an appeal he filed before the Court of Appeal in Abuja, which he said was a referral of a question of law to the appellate for determination.
Justice Ahmed Mohammed, in a ruling yesterday, said Dasuki’s motion was misconceived and lacked merit because it was hinged on a non-existing question of law purportedly referred to the appellate court.
Justice Mohammed said the procedure for referring a constitutional question to the Court of Appeal, under section 295(2) of the Constitution, required that such referral should be made by the trial court, but not by a party in the trial filing an appeal.
The judge said: “In the procedure stated in section 295(2) of the Constitution, it is the trial court, and in this case, this court that will form the opinion that a question as to the interpretation or the application of the Constitution has arisen in the proceedings before it.
“After forming such opinion it is the court that will also refer the question that has arisen to the Court of Appeal. There is nothing in section 295(2) of the Constitution conferring those functions on any of the parties in the proceedings.
“The only role a party can play is to make a request to the trial court for the reference of any such questions, on the interpretation or application of the Constitution, to the Court of Appeal
“In this case, I cannot remember when the court had come to the conclusion or formed any opinion that a question as to the interpretation or application of the Constitution had arisen in these proceedings let alone making any reference of such questions to the Court of Appeal for consideration.
“I can also not remember when any of the parties in this case had made a request for the reference of any question as to the interpretation of the Constitution to the Court of Appeal to warrant any such reference in accordance with the provisions of section 295(2) of the 1999 Constitution (as amended).
“In all sincerity, the procedure adopted by the defendant to challenge the ruling of the court delivered on June 15, 2017 cannot be described as reference of a question as to the interpretation of the Constitution contemplated in section 305(1)(a) of the Administration of Criminal Justice Act 2015.”
“What the defendant has done, as stated earlier, is a challenge of the ruling delivered on June 15, 2017, by way of an appeal.
“It is therefore my humble view that it is only after the provision of section 305(1)(a) of the Administration of Criminal Justice Act has been strictly adhered to regarding reference to the Court of Appeal of any question as to the interpretation of the Constitution that the defendant can avail himself of the right to bring an application for adjournment as provided in the section.
“By the wording of Section 306 of the Administration of Criminal Justice Act (ACJA), the Act has taken away the power of the court to even entertain an application to stay proceedings in a criminal matter before it
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“This, therefore means that any relief, however couched in an application that has the effect of staying proceedings in a criminal matter before a court will not be entertained,” Justice Mohammed said.
He adjourned further proceedings in the case to January 17 next year.
Dasuki’s lawyer, Ahmed Raji (SAN) had, while arguing the motion on October 17 this year, urged the court to adjourn the trial indefinitely pending the determination of his client’s motion for stay of proceedings filed before the Court of Appeal along with an appeal against the June 15 ruling of the court.
Raji drew a distinction between his client’s motion filed under Section 305 of ACJA and the one prohibited under Section 306 of the Act.
He said his client’s motion did not seek stay of proceedings prohibited under Section 306 of ACJA, but was brought under Section 305 of ACJA, which allows tthe court to adjourn a trial after a constitutional question, arising from the trial, has been referred to a higher court for determination.
Raji argued that his client’s appeal filed against the ruling delivered by Justice Mohammed on June 15, 2017, permitting prosecution’s witnesses to testify behind screen, was a form of reference of a constitutional question to the Court of Appeal.
He said since Dasuki has filed a motion before the appellate court for the stay of proceedings in the trial, and the appeal entered, it was the tradition that the lower court awaits the decision of the higher court.
Lawyer to the prosecution, Dipo Okpeseyi (SAN) said the motion amounted to an abuse of court process Okpeseyi argued that the motion was founded on a non-existing premise because no constitutional question had been referred by the court to the Court of Appeal, adding that what Dasuki merely filed was a notice of appeal against the ruling of the court.
He said the appeal filed by Dasuki did not qualify as a referral which was the basis for the application.
Okpeseyi contended that the motion was seeking an order of stay of proceedings, although Raji attempted to cover it up by using flowery words.
He noted that the Supreme Court had ruled that an order of stay of proceedings in a criminal matter was ungrantable.
Justice Mohammed’s ruling yesterday upheld Okpeseyi’s argument.
|The Nation
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