Counsel to the EFCC, Mohammed Abubakar, told Justice Okon Abang to reject Maina’s request on the ground that it was made to delay justice in his trial.
The ex-pension reformed boss had, in an interlocutory injunction motion dated Feb. 9 and filed Feb. 10, urged the court to set aside its Nov. 18 order that his trial should proceed in absentia.
Recall that after Maina jumped bail, the court, on Nov. 18, 2020, revoked his bail and ordered his arrest anywhere he was found.
The court also granted the EFCC’s request that his trial in the fraud charges be conducted in his absence.
After his arrest and subsequent production in court on Dec. 4, 2020, Justice Abang again made an order that Maina be remanded in prison until the hearing and final determination of his matter.
However, Maina, in separate applications, applied for a bail on medical ground and for the setting aside of the order for his trial to continue in his absence.
At the resumed hearing of Maina’s interlocutory injunction, his counsel, Anayo Adibe, said though his client was not in court, the motion could be heard in his (Maina’s) absence in line with Section 266(b) of Administration of Criminal Justice Act (ACJA), 2015.
The EFCC’s lawyer, Abubakar, did not disagree with Adibe.
Moving the motion, Adibe said he sought the order of the court setting aside the earlier order that the trial should continue in Maina’s absence.
He said the request was a very harmless application because the order sought to be set aside was one that ordinarily should lapse.
”The reason for our bringing this application is that the 1st defendant (Maina) having been rearrested, the order that the trial continues in his absence should lapse.
“This is so because it has been overtaken by event and as such, the legal essence of this application is to bring the proceedings of the court going forward within the parameters of the Provision of Section 36 of the constitution,” he said.
The lawyer said that was why he did not asked that the court should set aside previous proceedings in Maina’s trial.
Adibe said the application brought asking the court to recall the EFCC’s witnesses, who had testified before he took over the case, was withdrawn.
“That is why we submit that setting aside of the order sought to be set aside should take effect from the day it was set aside; the day the application was made,” he said.
The lawyer, who said Abubakar misconstrued the purpose of the application, urged the court to grant his request in the interest of justice.
But Abubakar, who informed the court that an 8-paragraph counter affidavit dated Feb. 22 was filed alongside other processes, urged the court not to grant the plea.
He argued that the further affidavit filed by Maina and his reply on point of law had all confirmed the anti-corruption agency’s depositions in the counter affidavit.
But this is not what this motion is praying for and not what the ground no 1 upon which the relief is made.
He said Maina’s prayer in the motion paper asking the court to set aside the order made was at variance with his lawyer’s argument.
“I submit that on the face of the motion paper, the 1st defendant applicant (Maina) is praying the court to set aside the order made to hear the case of Maina in absentia.
“Granting the prayer is tantamount to setting aside all the proceedings conducted by this court in the absence of 1st defendant applicant,” he said.
Abubakar, who reminded that on Dec. 10, 2020, Maina feigned illness before the court, said if the Nov. 18 order subsisted, it would ensure that his trial was not stalled in such circumstance.
“On Dec. 10 in the course of proceeding, Maina feigned illness and stage a drama before the court.
“In such circumstances similar to what happened, the order of the court made on Nov 18 will still be useful so that the matter can proceed in his absence by virtue of the subsisting order of Nov. 18,” he said.
The EFCC lawyer further said that Maina’s first relief that the court should vacate its order that he be kept in prison pending the hearing and final determination of the matter was an abuse of court process.
“Such relief is incompetent; the 1st defendant having filed a motion for bail and argued before this court which application has been adjourned for ruling,” he said.
But Adibe urged the court to discountenance all arguments by Abubakar.
“I want to draw the attention of the court to Section 352 of ACJA Subsection 4. It is the foundation upon which the order sought to be set aside was made.
“The principal word in that provision is the absence of the defendant. But the defendant is no longer absent and as such, the order should lapse.
“We also submit that the submission of Abubakar as to setting aside, varying or discharging an order are all semantics.
“The court is a court of justice, not a court of technicalities,” he said.
Adibe, who said what happened on Dec. 10, 2020 when Maina slumped in the court was factual, prayed the court to disregard Abubakar’s submission.
“We urge your lordship to strike out his submission as it relates with the quote of the drama that played out in 2020.
“Whatever happened in 2020 was factual. if he wants to make claim on that he should depose to affidavit.
“His failure to do that render that submission as untenable and should be discountenance by the court
“Finally, prayer four on our motion paper is an omnibus prayer which gives the court the power to make appropriate order based on every case present before the court,” he said.
Justice Abang, who adjourned until Feb. 25, said a ruling would be delivered on all the three applications, including the bail plea, filed by Maina.
NAN reports that Maina had, on Jan. 20, approached Justice Abang for another bail after his arrest for jumping the first bail.
Maina, in a motion on notice dated and filed on Dec. 24, 2020 brought by one of his lawyer, Anayo Adibe, said the application became necessary over his worsening health condition.
In the motion, the ex-pension boss told the court that he had reasonable and responsible sureties who were willing to act as sureties if granted bail.