DESTRA INVESTMENT LTD v. FRN & ANOR (2020)

DESTRA INVESTMENT LTD v. FRN & ANOR

(2020)LCN/14871(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, December 16, 2020

CA/A/CR/309C/2020

RATIO

FAIR HEARING: THE CONCEPT OF FAIR HEARING

Fair hearing is provided for in Section 36 of the 1999 Constitution of Nigeria, as amended. Judicially, the right of fair hearing has been well analyzed. Fair hearing requires the observance of the twin pillars of the Rules of Natural Justice namely – (a) Audi alteram partem that is, hear the other side. (b) Nemo in causa sua that is, no one should be a judge in his own cause. This is the Rule against bias. Nnaemeka-Agu, JSC, plainly put it in Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 488, as follows:

“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of a hearing. Once an appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment thus entered is bound to be set aside.” See also Ex parte Obinyan (1973) 12 SC 23 where this Court held that fairness is a determining factor for the applicability of the rules of natural justice that an inquiry should be given the same type of hearing. See the case of Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 718, Aladetoyinbo v. Adewumi (1990) 6 NWLR (Pt. 154) 98 at 108. See also Ceekay Traders Ltd v. General Motors Co., Ltd (1988) 3 NWLR (Pt. 82) 347 and Amadi v. Thomas Aplin Co., (1972) 1 All NLR (Pt. 1) 409.”
The basic criteria and attributes of fair hearing are – (a) That the Tribunal or Court must hear both sides not only in the case but also on all material issues in the case before reaching a decision. (b) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. The right to fair hearing is a fundamental constitutional right guaranteed by Section 36(1) of the 1999 Constitution; any breach of it particularly in trials, renders same null and void. In the case of Kalu v. State (2017) LPELR – 42101 (SC), the Supreme Court held that:
“…the test for measuring the fairness of the proceedings in a Court of first instance is the impression of any reasonable person who was present at the trial. See Otapo v. Sunmonu and Ors. (1987) NWLR (Pt. 58) 587, Obaro v. Hassan (2013) LPELR – 20089 (SC) 32 – 33; E – B, Tunbi v. Opawole (2000) 2 NWLR (Pt. 644) 275.”
This issue is quite fundamental for it is well settled that any proceedings conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. In Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 @ 488 C – D,

it was held thus:
“The rule of fair hearing is not a technical doctrine. It is one substance. The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of hearing. The order or judgment thus entered is bound to be set aside.” PER ADAH, J.C.A.

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

DESTRA INVESTMENT LIMITED APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. OLISA METUH RESPONDENT(S)

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Federal High Court, Abuja, delivered on 25th February, 2020, coram: O.E. Abang J., wherein the trial Court convicted that appellant and the 2nd respondent on all the Seven (7) counts amended charge.

This appeal is a sister appeal to Appeal No: CA/A/CR/306C/2020: Olisah Metuh v. (1) Federal Republic of Nigeria and (2) Destra Investment Ltd. The appellant together with the 2nd respondent was arraigned before the trial Court on a Seven (7) Count Amended Charge dated 16/02/2016.
The Amended Seven Counts Charge reads as follows:
Count 1:
That you Olisa Metuh and Destra Investment Limited on at about the 24/11/2014 in Abuja within the jurisdiction of this Court directly took possession or control of the sum of N400,000,000.00 (Four Hundred Million Naira only) paid into the account of Destra Investment Limited with Diamond Band Plc Account No.0040437573 from the account of the office of the National Security Adviser with the Central Bank of Nigeria without contract award when you reasonably ought to have known that the said fund formed

part of the proceeds of an unlawful activity of Col. Mohammed Sambo Rtd., the then National Security Adviser (to wit criminal breach of trust and corruption) and thereby committed an offence contrary to Section 15 (2)(d) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15 (3) of the same Act.
Count 2:
That you Olisa Metuh and Destra Investment Limited on or about the 24th November, 2014 in Abuja within the jurisdiction of N400,000.000.00 (Four Hundred Million Naira only) which sum was transferred from the account of the office of the National Security Adviser with the Central Bank of Nigeria without contract award, which you claim to have received for political activities of the Peoples Democratic Party when you reasonably ought to have known that the said funds formed part of the proceeds of unlawful activity of Col. Mohammed Sambo Dasuki (Rtd) the then National Security Adviser (To wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 15(2)(b) of the Money Laundering (prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) of the same Act.

Count 3:
That you Olisa Metuh and Destra Investments Limited on or about the 24th November, 2014 in Abuja within the jurisdiction of this Court did retain the sum of N400,000,000.00 (Four Hundred Million Naira only) on behalf of the Peoples Democratic Party for its campaign activities by concealing the said sum in your account with Diamond Bank Plc when you reasonably ought to have known that such fund directly represented the proceeds of unlawful activity of Col. Mohammed Sambo Dasuki (Rtd) the then National Security Adviser (To wit: Criminal breach of trust and corruption) and you thereby committed an offence contrary to Section 17(b) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 17(b) of the same Act.
Count 4:
That you Olisa Metuh and Destra Investments Limited between the 24th November, 2014 and March 2015 in Abuja within the jurisdiction of this Honourable Court having reason to know that an aggregate sum of N400,000.000.00 (Four Hundred Million Naira only) directly represented the proceeds of unlawful activity of Col. Mohammed Sambo Dasuki (Rtd), the then National Security Adviser

(To wit: criminal breach of trust and corruption in respect of the said amount used the said fund for campaign activities of the People’s Democratic Party and other personal purposes and thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) and (4) of the same Act.
Count 5:
That you Olisa Metuh and Destra Investment Limited or about the 2nd December, 2014 in Abuja within the jurisdiction of this Honourable Court did make a cash payment through your agent one Nneka Nicole Ararume to one Kabiru Ibrahim a non-financial institution to the tune of $1,000,000.00 USD (One Million US Dollars) only and thereby committed an offence contrary to Section 1 of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(2)(d) of the same Act.
Count 6:
That you Olisa Metuh and Destra Investments Limited on or about the 2nd December, 2014 in Abuja within the jurisdiction of this Honourable Court did make a cash payment through your agent one Nneka Nicole Ararume to the Sie Iyenome of Capital Field Investment to the tune

of $1,000,000.00 USD (One Million US dollars only) and thereby committed an offence contrary to Section 1 of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(2)(d) of the same Act.
Count 7:
That you Olisa Metuh and Destra Investment Limited on or about the 4th December, 2014 in Abuja within the Jurisdiction of this Honourable Court did directly transfer the sum of N21,776,000.00 (Twenty One Million Seven Hundred and Seventy Six Thousand naira only) to Chief Anthony Anenih being part of that sum of N400,000,000.00 (Four Hundred Million Naira) which you reasonably ought to have known that the said fund represented the proceeds of an unlawful activity of Col. Mohammed Sambo Dasuki (Rtd.) the then National Security Adviser (to wit: Criminal breach of trust and corruption) and thereby committed an offence contrary to Section 15(2)(d) of the Money Laundering (Prohibition) Act 2011 as amended in 2012 and punishable under Section 15(3) of the same Act.

A non-guilty plea was entered for the appellant. While the 2nd respondent pleaded not guilty.

Thereafter, the matter went in full trial. In order to

prove his case, the prosecution called eight witnesses. The appellant together with the 2nd respondent filed a no-case submission which was dismissed by the trial Court. On appeal of same to this Court, the no-case submission of the appellant was dismissed even at the Supreme Court. The appellant who had no other option together with the 2nd respondent opened their defence on 11/04/2016, and called a sole witness, while the 2nd respondent called 15 witnesses. The appellant closed his case on 02/10/2019, thereafter, parties filed and exchanged their written addresses.

In a considered judgment delivered on the 25th February, 2020, the trial Court found the appellant guilty on all the Seven Counts and on the whole sentenced it accordingly.

Dissatisfied with the said judgment, the appellant appealed to this Court vide a 26 grounds notice of appeal filed on the 23rd day of March, 2020. The records of appeal were transmitted to this Court on 20th May, 2020.

In line with the rules of this Court, parties filed and exchanged their respective briefs of argument.

Counsel for the appellant submitted fifteen (15) issues for the determination of this

appeal in the appellant’s brief of argument filed on the 3rd July, 2020. The issues are:
1. Whether the appellant ought not to have been discharged and acquitted in counts 1 and 2 of the charge and also in counts 3, 4 and 7 of the charge for the prosecution importing into counts 1 and 2 the element WITHOUT CONTRACT AWARD which is not one of the elements in Section 15(2)(b) and (d) of the Money Laundering (Prohibition) Act when by virtue of the imported element the Court lacks the jurisdiction to try and convict the appellant in counts 1 and 2 of the charge and the prosecution did not prove beyond reasonable doubt the element WITHOUT CONTRACT AWARD which has mislead the appellant entitling the appellant to be acquitted not only in counts 1 and 2 but also in counts 3, 4 and 7 of the charge.
2. Whether the learned trial judge has not misconceived, misapprehended or misdirected himself in his judgment when he held that the crux of the matter is whether or not the 2nd respondent has actual or constructive knowledge or no knowledge or at all of the inflow of N400 Million paid into the account of the appellant from the office of the National Security

Adviser on the basis of which he convicted the appellant in counts 1, 2, 3, 4 and 7 when the crux of the matter is whether or not the prosecution has proved the ingredients of the offence against appellant.
3. If the learned trial judge is right that the crux of the matter is whether or not the appellant has the actual knowledge whether the learned trial judge was right in relying on the Diamond Bank alert, EXH 28 and evidence of PW4 and lack of contract award to hold that the appellant has actual or constructive knowledge of the said inflow of N400 Million paid into appellants account from the office of National Security Adviser on the basis of which the learned trial judge convicted the appellant in counts 1, 2, 3, 4 and 7 of the charge in the face of 2nd respondent’s consistent assertions that the fund was transferred to the appellant by the former President.
4. Having held that evidence of former President Goodluck Jonathan or that of Col. Sambo, the NSA would have been crucial to determine whether or not the appellant has actual knowledge of the inflow of the N400 Million into its account; whether the learned trial judge has not shifted the

burden of proof when he held that it was the duty of the appellant to call President Jonathan to testify or to cross-examine Col. Dasuki Sambo, the DW8 to ascertain whether it was President Jonathan who remitted the sum into appellants account, thus occasioning a miscarriage of justice.
5. Whether the learned trial judge after having held that he has doubt that the former President Jonathan could have authorized the expenditure of N400 Million public funds ought to have discharged the appellant since according to law all doubts must be resolved in favour of the appellant and thus believe the evidence of the appellant that the money was transferred to its account by President Jonathan.
6. Whether the learned trial judge was right that the prosecution has proved, established or proved the essential ingredients of count 1 and indeed counts 2, 3, 4 and 7 of the charge that the 1st defendant knew or ought reasonably known that the inflow of N400 million formed part of the proceeds of unlawful act on the basis of which the learned trial judge convicted the appellant in counts 1, 2, 3, 4 and 7 of the charge.
7. Whether the learned trial judge was right

in convicting the appellant in counts 1, 2, 3, 4 and 7 of the charge on the erroneous basis in law that Section 15(2) of the Act made no provision for predicate offence and that the offences of Money Laundering and President offence are mutually exclusive as the success or failure of one does not depend on the failure or success of the other contrary to the decision of the appellant count in that regard which binds the learned trial judge.
8. Whether the learned trial judge was right in convicting the appellant in counts 1, 2, 3, 4 and 7 of the charge when the prosecution has not proved that the appellant took possession and control in count 1 or that appellant converted the sum in count 2 or that the appellant concealed the sum in count 3 or that the appellant used the said sum for political purpose in count 4 and 7 contrary to the consistent evidence of the appellant that the money was used for security assignment.
9. Whether the learned trial judge was right in law in convicting the appellant on counts 1, 2, 3, 4 and 7 of the charge in holding that EXH E6 (2) was a confessional statement of the respondent that the sum of N400 Million was used

for political party and personal purposes, when EXH E6 (2) was subject of another charge before another judge and the document purportedly expunged was not before the Court.
10. Whether the learned trial judge was right in law when he completely relied on the evidence of PW3, PW4, PW8 and EXH D1 E1 – E5 to convict the appellant in counts 1, 2, 3, 4 and 7 of the charge without considering the evidence of the appellant and its witnesses therefore failing to adequately evaluate the parties evidence by placing them on the imaginary scale.
11. Whether the learned trial judge has not wrongly and illegally convicted Col Dasuki Sambo, the former NSA who is not charged before him and albeit the appellant in counts 1, 2, 3, 4 and 7 of the charge when he relied on EXH B and want of contractual dealings between the appellant and the NSA to hold that the act of NSA is unlawful having breached the public confidence and misappropriated fund in favour of the appellant on the basis of which he convicted the appellant in counts 1, 2, 3, 4 and 7 of the charge.
12. Whether the learned trial judge was right in convicting the appellant in counts 5 and 6 when the

prosecution did not prove that the appellant acted contrary to the provision of S.1 of Money Laundering Act having regard that PW1, PW4 and PW6 testified that they are bureau de change and the prosecution did not treat them as hostile witnesses before the Court believe the evidence of the prosecution.
13. Whether the learned trial judge was right in rejecting the evidence of DW5 Richard Ihediwa, DW10 Emeka Onyie, DW11 Oladeji Bamidele, DW15 and EXH D11, D20, D21, the 2nd respondent as being untrue and misleading on the issue of National Assignment when the evidence was uncontradicted and unchallenged by the prosecution.
14. Whether the learned trial judge is not tainted with bias both against the counsel and the appellant which lead the learned trial judge to deliver a legislative judgment when he consistently made prejudicial and unfounded statements against the accused and also judgmental remarks against the counsel.
15. Whether the sentence and fine passed on the appellant is not excessive having regard to Section 321 of ACJA and other extant laws.

In response, counsel for the 1st Respondent distilled nine (9) issues in the 1st

Respondent’s Brief of Argument dated and filed on the 14th July, 2020, but deemed properly filed and served on the 9th day of September, 2020. Thus:
1. Whether the learned trial Judge was not right in dismissing the appellant’s (2nd defendant) preliminary objection which challenged the lower Court’s jurisdiction to try Courts 1 and 2 of the charge and consequently assumed the jurisdiction to try the said counts.
2. Whether the learned trial judge was not right in holding/finding that the prosecution proved or established the ingredients of the offences constituted in counts 1, 2, 3, 4 and 7 of the charge dealing with the allegation of laundering the sum of N400 Million and further holding that the appellant knew or reasonably ought to have known that the said fund represented the proceeds of an unlawful activity of Col. M.S. Dasuki Rtd, the former NSA, thereby warranting the conviction of the appellant.
3. Whether the learned trial Judge was not right in admitting Exhibit D28 in evidence during the cross-examination of DW15, and in declining to expunge the said exhibit as evidence, but rather accorded the said exhibit

probative value as same was rightly admitted.
4. Whether the learned trial Judge was not justified/right, when his Lordship held that it was not necessary to charge and convict a predicate offender before a charge of money laundering could be sustained, and in the instant case, Col. M.S. Dasuki Rtd, the former NSA, needed not to be convicted of criminal breach of trust/corruption, before the appellant could be prosecuted and found guilty on money laundering offences.
5. Whether the learned trial Judge was not right when in the evaluation of evidence, His Lordship discountenanced/rejected the evidence of DW2, DW5, DW10, DW11, DW12 and DW15 on the issue of alleged national assignment and instead accepted/preferred as more credible the evidence of PW5, PW8 and Exhibit E1- E5.
6. Whether on the totality of the evidence and the circumstances of this case, as it relates to the transaction involving the sum of $2 Million United States Dollars (counts 5 and 6 of the charge), the learned trial judge was not right when His Lordship held that the transaction was not made by the appellant through a financial institution.
7. Whether the learned trial

Judge was not right when His Lordship held that the appellant could not place reliance on the application of the Indoor Management Rule as decided in the case R.B.B v. TURQUAND (1843) ALL ER 435 in view of the fact that the appellant had no business/contractual relationship with the ONSA warranting the payment/transfer of the sum of 400 Million into the appellant’s account.
8. Whether in the entire circumstances of this case there is credible and sustainable evidence of bias against the appellant and counsel by the trial judge to warrant setting aside the decision of the lower Court.
9. Whether the sentence imposed on the appellant by the learned trial Judge was not justified and reasonable in accordance with the law.

I shall adopt the issues formulated by the appellant in considering this appeal.

This appeal as earlier indicated is a sister appeal to Appeal No: CA/A/CR/306C/2020: Olisah Metuh v. (1) Federal Republic of Nigeria and (2) Destra Investment Ltd. The judgment of the lower Court in respect of the instant appeal is the same judgment from where the earlier sister Appeal No: CA/A/CR/306/2020, emanated from. This appeal and

the other appeal were heard together by this Court. Similar facts and circumstances are prevalent in the two appeals. The issue of bias which was substantially addressed in the case has also been raised as issues No: 14 in the instant appeal. Issue 14 reads:
Whether the learned trial judge is not tainted with bias both against the counsel and the appellant which lead the learned trial judge to deliver a legislative judgment when he consistently made prejudicial and unfounded statements against the accused and also judgmental remarks against the counsel.

This issue is the very key to the determination of this appeal. Fair hearing is provided for in Section 36 of the 1999 Constitution of Nigeria, as amended. Judicially, the right of fair hearing has been well analyzed. Fair hearing requires the observance of the twin pillars of the Rules of Natural Justice namely – (a) Audi alteram partem that is, hear the other side. (b) Nemo in causa sua that is, no one should be a judge in his own cause. This is the Rule against bias. Nnaemeka-Agu, JSC, plainly put it in Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 at 488, as follows:

case before reaching a decision. (b) That having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. The right to fair hearing is a fundamental constitutional right guaranteed by Section 36(1) of the 1999 Constitution; any breach of it particularly in trials, renders same null and void. In the case of Kalu v. State (2017) LPELR – 42101 (SC), the Supreme Court held that:
“…the test for measuring the fairness of the proceedings in a Court of first instance is the impression of any reasonable person who was present at the trial. See Otapo v. Sunmonu and Ors. (1987) NWLR (Pt. 58) 587, Obaro v. Hassan (2013) LPELR – 20089 (SC) 32 – 33; E – B, Tunbi v. Opawole (2000) 2 NWLR (Pt. 644) 275.”
This issue is quite fundamental for it is well settled that any proceedings conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void. In Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419 @ 488 C – D,

The complaint of bias in this case majorly stems from the circumstances of this case and the utterances of the trial judge. In the judgment of the Court, the learned trial judge stated at pages 5935 to 5942 of the Record of Appeal as follows:
The convict had the opportunity to have resolved this matter amicably with the Complainant without coming to Court. I mean the state through EFCC. Even when he was confronted with Exhibit D1 that is the statement of account of the 2nd Defendant in Diamond Bank Plc that he as the sole signatory transferred the sum of 50,000,000.00 on 4/12/2014 from that account to a bank account of his wife jointly controlled by him, the convict ought to have been sober, remorseful and found way of resolving embarrassing situation with EFCC because the money was

transferred to an account jointly controlled by him and his wife. The interest of his immediate family members should have been paramount.
If I may ask, is the 50,000,000.00 naira transferred to an account jointly controlled by his wife and himself part of the special national assignment that the former President purportedly gave him? My Lords, I think not. The mere fact that 50 Million naira was transferred from the account that had inflow of 400 million naira public funds was linked to his wife was sufficient for the 1st convict to do everything within his reach to ensure that this matter was not brought to Court.
Instead the 1st convict became hardened, difficulty, stubborn joined issues with the team of investigators, destroyed confessional statement that he voluntarily made that the inflow of 400 Million naira was used for the campaign activities of PDP, came to Court with assistance of his counsel, transferred his aggression to the Court. The 1st convict and his counsel especially Emeka Etiaba (SAN) and Dr. Ikpeazu OON (SAN) used every opportunity open to them to humiliate the Court in writing hopeless, reckless and frivolous petitions against

the Court. One of their petitions against the Court is in the Court’s file dated 11/3/2016.
The 1st convict and his counsel Emeka Etiaba (SAN), Dr. Ikpeazu (SAN) used a section of the press especially A.I.T and sponsored blackmail against the Court and presented it as inhuman and heartless. They even took this matter to International Press. The day the 1st convict fell down in the Courtroom just to have unmerited sympathy from international community it was aired in CNN portraying the Court in bad light. It was only God that used my immediate family to sustain me throughout the four years of hostility coming from the convict and his team of lawyers.
I saw it all. Except towards the end of the proceedings in this matter precisely few weeks to the end of proceedings that the 1st convict and his team of lawyers began to be friendly with the Court but before then they had thoroughly humiliated the Court just because I discharged my functions without fear or favour, affection or ill will. I had nobody to speak for me except God that sustained me throughout one of the most difficult periods of my judicial career on the bench of the Federal High

Court. During this period, I prayed that my employer should withdraw this file from my Court but it was not forthcoming. I did not assign this case to this Court, I did not in any way direct the 1st convict to dissipate public funds the way it is stated in Exhibit D1, the statement of account of the 2nd convict. Part of the money was transferred to Daniel Ford Foundation to buy a property in Banana Island. The origin of Two Million Dollars that was converted to naira equivalent and deposited in the account of the 2nd convict cannot be ascertained. The investigator said it is suspected to be funds shared to delegates from 2015 PDP national convention. This was not ascertained.
This country cannot go on like this. There must be a change in attitude of the ways things are done in this country. Public funds being dissipated in this manner, is a story of shame.
There is nothing that I did not see in this matter. When EFCC applied to Court to revoke the Bail of the convict because the 1st convict was not in Court and rightly so, I had sympathy for him. I did not revoke his bail. I gave him opportunity to be in Court and adjourned the matter to a later date.

The next Court’s appearance, the 1st convict was in a stretcher, motionless just to portray the Court as being heartless and inhuman because the Court did not release his International Passport for him to travel out of the country. The reason that the passport was not released to him was not the fault of the Court but because his team of lawyers were not able to file a competent application. He came in a stretcher without any medical personnel except his people that accompanied him to Court. He asked for 4 weeks adjournment, I gave him 6 weeks. Thereafter, the 1st convict appealed to the Court of Appeal that the Court is bias. The Court of Appeal dismissed the appeal and held that a Judge that gave him 6 weeks adjournment when he asked for 4 weeks cannot be biased in the matter against him and the appeal dismissed. In fact, except for one decision, all the appeals that the 1st convict appealed against my decisions were affirmed by the Court of Appeal and the Supreme Court.
Recently, the 1st convict and his counsel used channel television a national television to review my decisions and used that medium to attack my person portraying the Court as

being inhuman just to further humiliate the Court. This aspect of the matter is currently on appeal at the Court of Appeal.
On 23/2/2017, in this matter, one of the senior counsel that appeared for the convicts Dr. Ikpeazu OON (SAN) in the open Court accused the Court of bias and applied that the Court to recuse itself from the matter and if one may ask the reason for the application, it was because I delivered a ruling against the 1st convict. The law is settled on this issue that a party or counsel cannot in the Court accuse the Court of bias or that he has no confidence in the Court to do justice in the matter, that is contempt in the face of the Court. I would have summarily dealt with the learned senior counsel but having been trained to have the patience of the biblical Job, I developed thick skin over the contemptuous conduct of Dr. Ikpeazu (SAN). I allowed him to go home without a twist in his body chemistry not out of fear or cowardice but the Court had to show maturity and restraint at that trying period in this matter. We have been trained not to be angry when found fault with or finding fault when angry. I only advised Dr. O. Ikpeazu (SAN) that

a counsel that makes it a habit of scandalizing a judge for no just cause except that the judge only discharged his functions to the best of his ability but in line with the law and the facts of the case the way the judge understood the law that counsel is breaking the bridge that himself will cross. It is like living a glass house throwing stones. I then left him to his conscience.

This utterance of the learned trial judge along with other circumstances have been duly considered in the earlier sister case of the 2nd Respondent in this appeal. The conclusion therein is that there is a failure of justice and that the judgment being a nullity must be and it was set aside. The same decision holds in the instant case. The case is dented and marred by bias. This instant appeal being meritorious succeeds, and it is hereby allowed.

The judgment of the lower Court in Charge No: FHC/ABJ/CR/05/2016, delivered on 25th February, 2020, being a nullity, is hereby set aside. This case is hereby remitted back to the lower Court for a fresh trial by another judge of that Court.

MOHAMMED MUSTAPHA, J.C.A.: I was availed the benefit of reading in draft the

judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.

I agree with the reasoning and I adopt the conclusion and consequential orders made therein as mine.

MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; STEPHEN JONAH ADAH. I agree with the reasoning, conclusion and orders therein.

Appearances:

Tobechukwu Onwugbufor, SAN with him, O. Francis, Esq., and C. Onwugbufor, Esq. For Appellant(s)

Sylvanus Tahir, Esq., with him, Richard Dauda, Esq., and H.M. Mohammed, Esq. for the 1st Respondent

Essien Andrew, SAN with him, Edidiong Usungurau, Esq., Chika Odoemene, Esq., Mary Frances Orji, Esq., and A.O. Akpan, Esq., for the 2nd Respondent For Respondent(s)

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DESTRA INVESTMENT LTD v. FRN & ANOR (2020)

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