Bankole-gate: EFCC'S response to Bankole`s request to disqualify Keyamo as prosecutor
In addition to previous objections regarding the powers of any court of law in Nigeria to try him, in a motion dated and filed on the 18th day of July, 2011, Dimeji Bankole is requesting that Mr. Festus Keyamo in particular be disqualified by the court to prosecute him. This is because, according to him, Mr. Festus Keyamo has, at one time in the past, written a petition against him in respect of another transaction regarding the purchase of Peugeot 407 Cars for members of the House of Representatives and that Mr. Keyamo has shown malice and bias against him in the past.
In a 22-page reply, the EFCC asked the court to dismiss the objection in its entirety as lacking in substance and a mere delay tactics. Excerpts from the reply of EFCC are as follows:
'ISSUES FOR DETERMINATION: My lord we have raised the following issues for determination:
WHETHER THE FACTS OF THIS CASE DISQUALIFY MR. FESTUS KEYAMO FROM PROSECUTING THE ACCUSED/APPLICANT.
2.WHETHER THIS COURT CAN CONDUCT AN INQUIRY INTO THE PROPRIETY OF COUNSEL APPEARING BEFORE IT.
3.WHETHER THIS COURT HAS THE JURISDICTION TO QUESTION THE EXERCISE OF THE POWERS OF THE ATTORNEY-GENERAL OF THE FEDERATION UNDER THE 1999 CONSTITUTION
On issue No. 1, the facts, as revealed in Bankole's affidavit in support of his motion, have nothing to do with the allegations in this charge and as such Mr. Keyamo has never at anytime written any petition or done anything personally in relation to this charge which has to do with the obtaining of illegal loans by the House of Representatives. On this score alone, this motion ought to be dismissed and we urge this court to so hold.
The danger in accepting the prayers of the Accused/Applicant is that the court will always embark on a voyage of pampering an accused person until he chooses a prosecutor with whom he feels comfortable….… The point we are making is that the fact that a prosecutor has, at one time or the other in life, crossed the path of an accused person in other spheres of human endeavour and questioned his integrity in those other endeavours, he is not precluded forever from prosecuting him in respect of other issues. Does it mean if Mr. Festus Keyamo becomes the Attorney-General of the Federation in future, he cannot prosecute the Accused/Applicant in respect of any offence? Does it mean the present Attorney-General of the Federation, Mr. Bello Adoke, SAN cannot prosecute anybody he appeared against or acted against or wrote a petition against in the past as a private legal practitioner? Does it also mean the present Chairman of EFCC, Mrs. Farida Waziri, AIG, (Rtd) cannot prosecute anybody she appeared against or acted against or wrote a petition against in the past as a private legal practitioner? Of course we answer these questions in the negative. This is because in prosecuting accused persons, a private prosecutor acts in the stead of the Attorney-General or the prosecutorial agency that briefs him and exercises all their statutory powers in that regard. So whatever disqualifies the private legal practitioner must also disqualify his principal.
We also wish to address the court on the assumption, (which is not conceded), that Mr. Keyamo has actually shown bias in the past against the Accused/Applicant. We submit that there is no law in Nigeria , whether in the Constitution or in a Statute or judicial pronouncement of superior courts that says emphatically that a prosecutor that shows bias in his belief or conviction of the guilt of an accused person cannot prosecute that accused person. We submit that a prosecutor must show some bias tilting towards belief in the guilt or culpability of the accused person, if not that prosecutor will merely be persecuting.
We submit with respect that Mr. Festus Keyamo is only a prosecutor and not the court. It is the duty of a prosecutor to prosecute a criminal case diligently by placing before a court of law all the facts of the case and the duty of being impartial is not that of the prosecutor but that of the court which is the arbitrator…….. Therefore, a person who has written a petition against an Accused person does not preclude him from prosecuting that Accused person. That is why in the Northern Part of Nigeria, the law allows a private person to file a Direct Criminal Complaint against an Accused person who he feels has committed a crime against him. We refer your Lordship to Section 143 (d) & (e) of the CPC…..and Section 342 of the CPA which is applicable in the Southern Part of Nigeria …..
Based on the authorities of the CPC and CPA, it is trite law that any body (including an aggrieved person) can file a criminal charge against an Accused person and that aggrieved person can also be a person who the Accused has committed the alleged offence against, who have personal interest in the case and would have declared personal animosity, hatred and malice against the accused person.
It is in the light of the above submission that the Supreme Court in the case of FAWEHINMI V. AKILU (1987) 4 NWLR (PT. 67) 797 at 832 paras D-F; 833 paras E-F and 834 paras A-B, gave judicial support to the right of a private prosecutor, who in that case obviously showed bias and passion against two security chiefs whom he pointedly accused of the murder of Dele Giwa. This is even unlike this case where Mr. Keyamo merely wrote a petition to a law enforcement agency to investigate the Accused/Applicant in respect of another transaction altogether. In finally allowing the appeal of Chief Gani Fawehinmi, the highest court of the land said as follows:
'Criminal Law is addressed to all classes of society as the rules that they are bound to obey on pain of punishment to ensure order in the society and maintain the peaceful existence of society. The rules are promulgated by the representatives of society who form the government or the legislative arm of government for the benefit of the society and the power to arrest and prosecute any person who breaches the rule is also conferred ON ANY PERSON IN THE SOCIETY in addition to the Attorney-General and other law officers for the benefit of the society.
The peace of the society is the responsibility of all persons in the country and as far as protection against crime is concerned, every person in the society is each other's keeper. Since we are all brothers in the society, we are our brother's keeper. If we pause a little and cast our minds to the happenings in the world, the rationale for this rule become apparent…. 'The appellant, as a person, a Nigerian, a friend and legal adviser to Dele Giwa, deceased, has a right under the Criminal Procedure Law to see that a crime is not committed and if committed, to lay charge for the offence against anyone committing the offence in his view or whom he reasonably suspects to have committed the offence. The law has given every person that right in order to uproot crime from our society…The appellant cannot be described as a busybody with misguided complaints. The Criminal Code and the Criminal Procedure Law of Lagos State in so far as prevention of crime and punishment of those committing crimes are concerned, have made everyone of us, nay, all Nigerians, our brother's keeper.' So my Lord, it is totally fallacious for anyone to propose to a court of law that our laws forbid anyone who has shown more than a passing interest in a case or who has shown some bias towards the guilt of an accused person from handling that case or prosecuting the accused person. The final decision as to whether there is a good case or not against the accused person, is reserved for the court to make.
Therefore, we submit that there is no law or legal authority which bars a prosecutor from prosecuting an Accused person simply because that prosecutor has done a petition against the Accused person in relation to that case.
We submit further with respect that the essence of criminal prosecution is to bring culprits to justice and to act as deterrent to other persons from committing such offences. Therefore, it is the duty of every citizen of Nigeria to ensure that criminals are brought to justice.
In the final analyses, there is no fact before the court that disqualifies Mr. Keyamo from prosecuting the Accused/Applicant and we urge this court to so hold and dismiss the motion.
On issue No. 3, the law is that the courts do not descend into the arena of even starting an inquiry into the propriety of counsel appearing before it. In addition the accused person has no locus standi to question the right or propriety of counsel to prosecute him. Once the counsel is duly called to the Nigerian Bar (as Mr. Festus Keyamo), he is entitled to announce his appearance and conduct his case without interference. See the case of ADEKANYE V. F.R.N (2005) 15 NWLR (PT. 949) 433 AT 462, where the accused persons also raised a similar objection to appearance of prosecution counsel, and the Court of Appeal questioned the locus standi of the accused person to do so…..
On the strength of the above authorities, we are inviting the court not to consider at all issues of facts or law raised by the Accused/Applicant in his motion as that will offend the injunction of the Supreme Court that a court cannot even start an inquiry into the authority of counsel to appear in a matter. On issue No.4,…….if the court grants the prayers of the Applicants, the court would have UNWITTINGLY OR WITHOUT MEANING TO DO SO, curtailed or interfered with the powers of the Attorney-General under Section 174(1) of the 1999 Constitution. This, the court cannot do. We therefore urge the court to resolve Issue 3 in our favour and dismiss the motion.
Finally, all authorities and principles cited on fair hearing and bias refer to the adjudicator or the Judge and never to the prosecutor who must believe that there is a good case against the Accused person before accepting the brief. The court should accordingly discountenance all. In any case, the principle of bias relied on by the applicant is based entirely on the court accepting the fact that Mr. Festus Keyamo has shown personal hatred for the accused person when there is no evidence of such before the court.
CONCLUSION: It is evident that the Accused/Applicant is merely shopping for who he prefers to prosecute him. The law is that an accused person is not at liberty to pick and choose and cannot raise an objection as to who can prosecute him. See the cases of ADEKANYE V. F.R.N (Supra) and AKALONU V. OMOKARO (2003) (Supra)
It will be a bad and sad day for the judiciary to begin to entertain objections from accused persons regarding the choice of who should prosecute them. So what happens if the court accedes to the request of the accused? Will the court call upon the EFCC or the Attorney-General to appoint someone else? How ridiculous that would be! Then what happens if the accused persons bring applications again and again challenging every prosecutor appointed? It will turn the court to the theater of the absurd.
In fact, what this objection seeks to do is to gag the prosecutor and every other lawyer in this country from raising alarm about corruption against public officers as such lawyer may stand the risk of being barred from prosecuting any such public officer. In fact, if the argument of the applicant succeeds, public officers standing trial would only have to dig into the past to find out whether the prosecutor has made any comment at all in the past against such a public officer for the prosecutor to be disqualified. In the final analysis, the case of the Applicant is presented as if this court cannot act as a proper arbiter between the prosecution and the defence; as if the prosecution will foist a fait accompli on the court in the trial; as if the court has no authority or discretion to beat the prosecution into line if it falls out of line. This is tantamount to insulting the intelligence and authority of this court.