Olisa Metuh v. Federal Republic of Nigeria [2021] 6 NWLR (Pt. 1771) 82

One of the high points of the fight against corruption by the President Muhammadu Buhari’s administration upon assuming office in 2015 was the raid on politicians on the opposition divide – The Peoples Democratic Party (PDP). The raid was based on allegations of corruption relating to the alleged diversion of funds meant for battling insecurity, to the financing of political campaigns and party activities of the PDP.

In 2016, the Economic and Financial Crimes Commission (EFCC) filed a seven-count charge against Olisa Metuh and his company, Destra Investment Ltd., one of the “scapegoats.” The charges bordered on alleged money laundering activities. In particular, Metuh and his company were accused of taking direct possession of, concealing and retaining the sum of N400 Million paid to them from the account of the office of the National Security Adviser with the Central Bank of Nigeria. The money was said to have been used for the political activities of the PDP. It was alleged that the money was paid to Metuh’s company without any contract award and that Metuh and his company ought to have reasonably known that the funds formed part of the proceeds of an unlawful activity of Col. Mohammed Sambo Dasuki (Rtd.), the then National Security Adviser relating to criminal breach of trust and corruption.

Metuh and his company were also alleged to have laundered the sum of about $2 Million.

Hon. Justice Abang was the presiding Judge. Metuh rode on the legal wings of Emeka Etiaba (SAN) and Dr. Onyechi Ikpeazu (SAN) for his defence.

The trial of Olisa Metuh and his company was filled with cascade of events and dramatic episodes that would be remembered for a long time.

Trial and Judgment

After the prosecution opened its case and called several witnesses, the defence filed a no case submission which was dismissed. The defence appealed the decision up to Supreme Court and failed. Having no other option, Metuh and his company opened their defence. Along the line during the trial, Metuh made efforts to have the learned Judge recuse himself from the case. Petitions were tabled against the Judge for bias and application was filed for the Judge to recuse himself but the efforts were completely futile, as the Judge remained firmly in charge but also appeared incircumspect (as we shall soon see).

At the conclusion of hearing, the trial Court convicted Metuh and his company on all the counts and sentenced them accordingly.

The twist and web of bias

However, in an inexplicable twist of events, the learned trial Judge while delivering the Judgment in the case, recited a litany of agony and lamentation against Metuh, his company, and their legal team led by Etiaba, SAN and Dr. Ikpeazu, SAN. Considering the length of the narrative by the Judge, it will not be quoted here in full. But a part of it that essentially captures his Lordship’s alleged ordeals are presented below (at pages 115-119 of the report):

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… 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…

The learned trial Judge also narrated how Dr. Ikpeazu, SAN allegedly accused the Judge of bias in open Court and applied that the Judge should recuse himself. The Judge stated that he would have summarily dealt with the learned Senior Counsel but he chose to develop a thick skin over the alleged contemptuous conduct of Dr. Ikpeazu, SAN “having been trained to have the patience of the Biblical Job.” His Lordship stated that he had advised Dr. Ikpeazu, SAN that “A Counsel that makes it a habit of scandalizing a Judge for no just cause… is breaking the bridge that himself will cross. It is like living in a glass house throwing stones.”

The Appeal

Terribly aggrieved, Metuh and his company filed separate appeals against the Judgment of the Court on the grounds of bias and lack of fair trial. (See Destra Investment Ltd v. Federal Republic of Nigeria [2021] 6 NWLR (Pt. 1771) 57). The Court of Appeal allowed the appeal and held that the learned trial Judge was biased. This was on 16 December 2020. Consequently, the Judgment was set aside. The Court of Appeal directed that the matter be remitted to the Chief Judge of the Federal High Court for reassignment to another Judge who will conduct a fresh trial.

Adah, JCA, in delivering the opinion of the Court of Appeal, emphatically reasoned (at page 119 of the report):

In the instant case, the learned trial Judge on record documented how he was worried by the act of the Appellant and his Counsel and the narrative suggests someone who has an axe to grind against the Appellant and his legal team. At a point he clearly desired to be recused from conducting the trial. The learned trial Judge catalogued the series of what he nursed or had against the Appellant and his legal team. The inference from this narrative is swiftly, to say the least, that the trial Judge was angered or wounded in his mind towards the Appellant and his lawyers. That is the inference that the Judge was likely to be biased and indeed he was biased against the Appellant in this case… Let me say a word here. Justice is universally rooted in confidence. When in a criminal trial, a person accused sniffs the polluted air of bias in a tangible form, the responsibility of the Court is to be circumspect of what gives the accused person reason to complain. This, unfortunately, is not what happened in the instant case. The learned trial Judge took the complaint, it appears, to be a personal assault to his person and his Court. He then began to labour to cope with the burden of hearing the case before him and ended up railing out what shows the colour of his bias against the Appellant in his Judgment. In all this, the Court was being watched by the ordinary people in the Court. A straight assessment of the utterances of the learned trial Judge in this case shows an exhibition of bias.

Although the Court of Appeal heaped the bulk of bias on the lamentations by the Judge, Adah, JCA, however identified a few facts supporting the allegation of bias against the Judge at page 120 of the report. The learned trial Judge was said to have refused to subpoena a witness for the Appellant until directed by the Court of Appeal; and that when the same witness (Col. Sambo Dasuki) applied to be allowed to refresh his memory, the trial Court refused. The Court of Appeal rightly concluded that from the circumstances of the case and the utterances of the Judge, bias was established.

Hon. Justice Abang’s allegations calls for worry

While the Court of Appeal was right in its conclusions, perhaps it is important to state that the allegations by the learned trial Judge against Metuh and his company, and especially against the defence Counsel, Etiaba SAN and Dr. Ikpeazu, SAN, calls for worry. The Judge appeared too overwhelmed by the “sorrowful passion” he claimed to have suffered while presiding over the case. His Lordship made remarks that ordinarily should be the concern of the regulators in the legal industry, such as the Nigerian Bar Association and even the National Judicial Council. They are too grave to be swept aside like the rantings of a man with disordered mind.

Oftentimes, we have witnessed attempts by some Senior Counsel to bully the courts even in the open. We have also seen Senior Counsel who struggle to put in check, high-handed Judges. The Bar and the Bench must not sit on the fence in matters that seem to lower the prestige of the noble profession.

Unfortunately, at the expense of public funds, a fresh trial would have to be conducted.


Stephen Azubuike
Author: Stephen Azubuike
Stephen is a lawyer with expertise in Commercial Dispute Resolution and Technology Law practice. He is a Partner at Infusion Lawyers. He has successfully argued cases from the High Courts of various jurisdictions to the Appellate Courts on behalf of financial institutions, other corporate bodies and multinationals. He has advised a number of both established and startup tech companies. He tweets @siazubuike.

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