A Federal High Court sitting in Abuja struck out an exparte application filed by former 2nd Vice-President of Nigerian Bar Association, NBA, Monday Ubani seeking to compel the Economic and Financial Crimes Commission, EFCC to prosecute Ex Abia State Governor, Theodore Orji and his son Chinedum for allegedly embezzling Abia State funds.
Ubani had filed the application in January through his Counsel Mr Nkem Okoro, an Abuja based Human Rights Lawyer, seeking leave of court for an order of mandamus compelling the EFCC to commence the prosecution of Orji and his son having concluded investigations into the fraud heist allegedly perpetrated by them.
In an affidavit attached to the application, Ubani compiled series of newspaper publications of statements made by EFCC revealing the alleged massive fraud and properties seized from the ex governor and his son in relation to the fraud.
Ubani argued that the refusal of the EFCC to prosecute Orji and his son despite mounting evidence of massive looting of Abia State monies, is a serious defect in justice which can only be remedied if the leave for order of mandamus sought is granted expeditiously.
Ubani also restated his legal right to seek the order on the grounds that he is human rights activist, anti-corruption crusader, with a mandate of promoting transparency, accountability and expose corrupt and fraudulent practices in government and more importantly that he is an indigene of Abia State who has been adversely affected by the action of the ex-governor.
But in a ruling delivered on February 22, Justice I.E Ekwo struck out the application on the grounds that the newspaper exhibits placed before the court by the applicant were of no probative value.
He said: “The applicant has sufficient and requisite locus standi to apply for leave for an Order of Mandamus. There has been a demand for the performance of the public duty on the respondent in line with its mandate by way of petition but the demand contained in the said petition was not carried out and there was no such correspondence from the respondent stating reasons for not carrying out the provisions of the Act. This case is worthy of the intervention of this court by granting of this application as prayed.
“The point to be noted however, is that in exercising discretion, the court would only act on the materials before it. Exhibit 1, upon which this application is predicated is a copy an on-line report of the Sun Newspaper February 9, 2020.”
“The applicant is a lawyer and knows that in our evidence law, it is true that newspaper reports are not generally admissible as evidence of the fact recorded therein. This simply means that the evidence of the applicant is not credible and therefore of no probative value in this case.”
The judge is same ruling also reversed himself saying that the applicant lacked sufficient interest to file the application.
He said: “I need also to consider whether or not the applicant has locus standi to bring this application. It is noteworthy that there is no other place to find the locus standi of a litigant than the pleading he has filed, and, in this case the averments in the affidavit in support of the originating process. In so doing, I have noted the averments in paragraphs 4, 5, 6, 7, 8, 9, and, 10 of the Affidavit in support of this application and found no evidence of ‘sufficient interest’ which would ground the locus standi of the applicant except for media sensation that such action carries.”
Meanwhile Ubani has aexpressed shock at the ruling saying that he has prepared Notice of Appeal against the decision of the court.
He said: “I have already prepared a notice of appeal against the ruling. As an Abia indigene and a human rights activist, I am only asking that EFCC be compelled to do their statutory duty in a case that several revelations have already been made. On daily basis the Commission keeps making damning revelation of the fraud but no charge has been filed. All I am asking is that the Commission should do its job and I am optimistic that justice will be done at the Appeal Court.
“It is obvious that His Lordship erred in law by refusing to place probative value on Newspaper publication that has a certificate of Identification in accordance with the Evidence Act and more erroneous is His Lordship in denying that I have no locus standi when the Supreme Court in the recent case of Centre of Oil Pollution v NNPC has expanded almost without any inhibition the frontiers of the concept of Locus Standi in Nigeria. “I will never be discouraged by this ruling, it is an elixir for me to go ahead and expand our jurisprudence further, he concluded.
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