Wednesday, January 27, 2016 3:47 pm
By Henry Ojelu
Justice Lateef Lawal-Akapo of the Lagos High Court has fixed February 8, 2016 for ruling on two applications seeking to stop the prosecution of the two engineers who built the collapsed Synagogue Church Of All Nation’s six-storey building.
The collapsed building killed 116 persons on September 12, 2014.
The engineers, Messrs Oladele Ogundeji and Akinbela Fatiregun, and their companies, Hardrock Construction and Engineering Company; and Jandy Trust Limited, have been charged with 110 counts of involuntary manslaughter.
Also joined in the charge, filed before a Lagos State High Court in Ikeja, are the Registered Trustees of SCOAN, who were accused of building without securing the state approval.
The two engineers and their companies have however filed separate applications challenging the competence of the manner with which the charge sheet was served on them.
Justice Lawal-Akapo, had on December 11, 2015 granted an application by the prosecution to serve the engineers through substituted means by pasting the court processes on the front doors of their residential houses in the Alagbado and Ikeja areas of Lagos.
But the defendants through their lawyers, Chief E.L. Akpofure (SAN) and Mrs. Titi Akinlawon (SAN), are contending that the order to serve them by substituted means was wrongfully granted by Justice Lawal-Akapo.
Akpofure, who appeared for Ogundeji and Hardrock Construction and Engineering Company on Wednesday, described the judge as functus officio and urged him to set aside the order for substituted service because it was obtained in breach of the relevant laws.
He argued that in the absence of a valid service everything done by the court would be a nullity.
“What we are saying is that the ruling of Your Lordship was predicated on an ex parte application, wherein they (prosecution) were asking for an order to paste the court processes…
“And so, if it is a nullity, the law enjoins Your Lordship to exercise your power to set it aside,” Akpofure said.
Besides, he argued that the Lagos State Attorney General, Mr. Adeniji Kazeem, ought not to have filed the charge in the first place as he had on December 2, 2015 been restrained by Justice Ibrahim Buba of a Federal High Court in Lagos not to prosecute the engineers pending the outcome of an appeal they filed against Buba’s judgment in their fundamental rights enforcement suits.
“Can the complainant wriggle out of the order of Buba J. made when all the parties were present?
“That order has not been set aside, where the Attorney General was asked not to continue with prosecution and at best, what is happening now is defying the order of your learned brother.
“They ought not to have come to court until they vacate that order either before the same court or at the Court of Appeal,” Akpofure argued.
He also pointed out that the engineers were charged based on the July 8, 2015 verdict of a Lagos Coroner Court presided over by Mr. Oyetade Komolafe, which he said was against the provisions of relevant laws.
“Any attempt by the Attorney General to go on amounts to an abuse,” Akpofure added.
Akinlawon, who represented Fatiregun and Jandy Trust Limited, toed Akpofure’s line of argument and urged Justice Lawal-Akapo to “stop the Attorney General of violating a subsisting court order.”
She added, “It is on the strength of this that the 5th defendant (Fatiregun) contends that the order of this honourable court granted to the complainant, which ought not to have been filed at all, is an abuse of court processes. It is a clear and flagrant disobedience of the court order.”
But the state, through its Director of Public Prosecutions, Mrs. Idowu Alakija, described the defendants’ application as frivolous and urged the court to dismiss them.
Alakija argued that once Justice Lawal-Akapo had made the order, he could not overrule himself, stressing that only an appellate court could set aside the order of substituted service already granted.
The DPP also pointed out that what the defendants were asking Justice Lawal-Akapo to do was to grant a stay of proceedings, which, according to her, had been outlawed by the provisions of the Administration of Criminal Justice Act 2015.
She maintained that the law was clear on the authority of the Attorney General to prosecute.
As opposed to the engineers’ argument that they were charged based on the coroner’s recommendation, Alakija said the state was not unaware of the provisions of Section 350 of the ACJA and had avoided charging the engineers based on the coroner’s verdict.
She pointed out that while the coroner recommended the prosecution of the engineers for criminal negligence, the charge filed against them by the state bordered on involuntary manslaughter.
“Our information filed before this court and the proof of evidence are not based on the verdict of the coroner,” she said.
She maintained that the order for substituted service was duly applied for and lawfully granted by the court, adding that the defendants had no lawyers representing them as of when the order was obtained.