By Zechariah Demien
At the further mention of the case FRN V BARRISTER HUDU YUNUSA ARI today in the High Court of Adamawa State, the defendant Hudu Yunusa Ari filed a motion on Notice challenging the Jurisdiction and competence of this Honourable Court to try the Defendant person for the Four Count Charges laid against him on the principal ground that since the proof of evidence does not disclose a Prima Facie case against him it will amount to an abuse of Court process to subject him to the rigours and ordeal of a criminal trial more so, in the light of the Constitutional presumption of innocence which inures in his favour.
Furthermore, since the Election Tribunal did not make any recommendation pursuant to section 144 of the Electoral Act 2022, it will be an academic exercise and futile to subject him to the ordeal of a criminal trial in all the circumstances of the case The grounds upon which the application was made are as follows;
i. The allegations made in the Four Count Charges did not disclose any prima facie case or raise any reasonable suspicion that, the Defendant/Applicant had committed an offence to warrant his trial or requiring his explanation.
ii. The Charges contained in the information and their particulars constitute a flagrant and grave violation of Sections 35(1)36 (5), (9) of the Constitution of the Federal Republic of Nigeria, 1999 and Adamawa State Administration of Criminal Justice Law, 2018 amounting in law to an illegality and a not mere irregularity.
iii. When, in any event, the Information/ Charges, in this case, are compared and contrasted with particulars thereof, the ingredients of the alleged offences, the result is that the entire Information/Charge amounts to an abuse of court process as they disclose no prima facie case against the Defendant /Applicant.
iv. The Defendant /Applicant had raised an immunity under Section 149 of the Electoral Act 2022 which was proved by very credible evidence.
v. There is a pending Suit No. FHC/ABJ/CS/563/2023 instituted by the Defendant / Applicant before the Federal High Court Abuja filed against the Complainant arising from the same facts for lawful performance of official duty based on information received from the Commissioner of Police Adamawa State concerning insecurity and planned Attack on offices of the Independent National Electoral Commission including Collation Centres at Local Government and State Level and thereby acted in good faith invoking the doctrine of necessity based on firm instructions from the Office of the National Chairman of the Independent National Electoral Commission to prevent Imminent Attack and disruption from Boko Haram insurgents which is directly connected with the substratum of this Information / Charge before this Honourable Court.
vi. There is a pending Appeal No. CA/ABJ/CV/1112/2023 is now pending before the Court of Appeal in which the Record of Appeal has been transmitted and the Appeal entered.
vii. There is also a pending Election Petition No. EPT/AD/GOV/1/ 2023 in respect of which judgment has been delivered and is now on Appeal before the Court of Appeal Yola Division sitting in Abuja in Appeal no. CA/YL/EPT/AD/GOV/18/2023 arising for the 2023 Governorship Election held in Adamawa State on 18th March 2023 and 15th April 2023 connected with the charge and from which final recommendation for prosecution of any electoral offence arising from Adamawa State Governorship Election has not been made yet.
viii. As a Public Officer the defendant is entitled to Public Authority Defence having acted clear directives, warnings, and advice from other Police and /or in circumstances as to constitute Entrapment by Estoppel.
ix. The Honourable Court lacks the jurisdictional competence to entertain, hear and determine this Matter regard being had to Section 251 of the Constitution of the Federal Republic of Nigeria 1999 as amended.
x. In the foregoing premises, inter alia, the said Complaints/Charges are prejudicial and detrimental to the Defendant/Applicant’s Constitutional right to a fair hearing, dignity, liberty, and due process, are therefore vexatious and violate the constitutional presumption of innocence which inures in favour of the Defendant/Applicant and same are also oppressive.
the Application maintain that the proof of evidence will show that there is no direct evidence linking the Defendant with the commission of the alleged offence and it is the law that no citizen should be put to the rigours of trial, in a criminal proceeding, unless available evidence points prima facie to his complicity in the commission of a crime.
the formidable and impregnable defence of entitled to Public Authority Defence having acted clear directives, warnings and advice from other Police and /or in circumstances as to constitute Entrapment by Estoppel raised by the Defendant My noble Lord, a panoramic perusal of the said further affidavit and annexures will show clearly that no offence is disclosed and that the First Information Report did not disclose any prima facies case or raises any reasonable suspicion that Hudu Yunusa Ari has committed a criminal offence.
that given the peculiar circumstances of this case, it is the Federal High Court that is the proper forum and imbued with jurisdiction to hear this case because the information and/or charge against the defendant is arising from, connected with, and pertaining to the validity of executive and/or administrative decisions or action of the defendant as the Resident Electoral Commissioner of the Independent Electoral Commission in his official capacity in the performance of his official duties. the purport of sub-section (3) of Section 251 of the 1999 Constitution is that it comes into play to divest the State High Court of jurisdiction in any criminal matter that involves any administrative action of any Federal Government agency. Here, the defendant is an officer of INEC and clearly, the charge bothers his administrative action or decision in his capacity as the INEC’s Resident Electoral Commissioner in charge of Adamawa State
Barrister Hudu Yunusa Ari also stated that the Prosecution cannot hide under any guise to persecute, investigate, or detain the defendant / Applicant wanted for performing or carrying out his official duties which are not criminal in nature or constitute criminality. Even if not conceding, that the defendant/applicant committed a criminal offence (which is not conceded), in the performance of his electoral duties, section 144 of the Electoral Act does not permit the complainant to prosecute the Defendant until after a determinate recommendation from Election Tribunal.
Hudu Yunusa Ari also contended that the charge filed against him is an Abuse of the Court Process in the light of the pendency of Appeal No. CA/ABJ/CV/1112/2023 is now pending before the Court of Appeal Abuja and another Election Appeal There is also a pending Election Petition No. EPT/AD/GOV/1/ 2023 in respect of which judgment has been delivered and is now on Appeal before the Court of Appeal Yola Division sitting in Abuja in Appeal no. CA/YL/EPT/AD/GOV/18/2023 arising for the 2023 Governorship Election held in Adamawa State on 18th March 2023 and 15th April 2023 and Suit No. FHC/ABJ/CS/563/2023 is now pending before the Federal High Court Abuja will show clearly that the Complaint is not acting in good faith in the public interest and interest of justice but brought this case in order to harass, irritate, and annoy the defendant. We should not cross the bridge until we come to it and when we do so we should cross the bridge by touching the stones.
in the light of the provision of section 251 of the Constitution of the Federal Republic of Nigeria 1999 as amended which expressly conferred jurisdiction in a criminal matter in respect to any matter that arises from, and connects with its civil jurisdiction and the actions or decision of the defendant sought to be impugned and for which he is being charged before this court is related directly to exclusive jurisdiction of the Federal High Court, the that is the proper forum if there reasonable suspicion that despite the peculiar circumstances of this case he is alleged to have committed a crime and not before the State High Court.
Hudu Ari also stated that the court stands at an important crossroads of our democratic and civilized experience and draws the line between this era and the stone age where men ruled men by a system of survival of the fittest. That era is long gone, and this Hon. Court will not watch the powerful, the armed and the uniformed men take liberties into their hands when the citizens have a constitutional court to run to.
It’s important for the general public to hear both sides of the story before you come to a conclusion. We are all subject to cognitive bias. It is a fundamental legal principle in which each party is entitled to a fair hearing and given the opportunity to respond to evidence against them. He stated that he is a victim of power play and has been made a scapegoat.
The court adjourned the case to 6th December 2023 to enable Hudu Yunusa to recuperate and appear in court. The application of the prosecution for a warrant of arrest was not taken in the circumstances.
Demien, a Public Commentator Writes From Yola