A Federal High Court in Lagos on Thursday granted the Chairman of the Bi-Courtney Ltd., Wale Babalakin, leave to apply for an order of certiorari and prohibition against his arraignment.
An order of cetorarai is an order to quash any action or order of a lower court or judicial authority.
The Economic and Financial Crimes Commission (EFCC) charged Babalakin before a Lagos high court sitting in Ikeja on Nov. 21
However, the commission could not arraign Babalakin on Thursday as planned because he was absent in court as a result of ill health.
Thus, Justice Adeniji Onigbanjo of the Lagos high court sitting in Ikeja adjourned the arraignment till Dec. 12.
The EFCC charged Babalakin with fraudulent transfer of N4.7 billion on behalf of former Gov. James Ibori of Delta, who has been convicted of money laundering by a London Court.
The News Agency of Nigeria (NAN) reports that Justice Mohammed Idris made the order for leave following a motion ex-parte filed by Babalakin's counsel, Mr Wale Akoni (SAN).
The EFCC and the attorney-general of the federation are the respondents in the suit.
An order of prohibition is a writ normally issued by a superior to a lower court asking it not to proceed with a case which does not fall under its jurisdiction.
Babalakin sought to apply for the orders to prohibit the respondents from taking further steps in his planned arraignment.
Idris held: "I have gone through the application before this honourable court, and I will confine myself to the affidavit and statement.
"At this stage, the court should be satisfied that the applicant has a locus standi, and that a prima facie case exists before the court.
"But I will not dabble into the merit of the substantive suit.
"A serious issue on the constitutionality of acts by the public officers has been raised, and going by the various documents and statements tendered before this court, I do not think this application is frivolous.
"Relief for one of the applicant is hereby granted as prayed, and leave is hereby granted for the applicant to make an application for cetorarai and prohibition before this honourable court.
"However, reliefs for two and three of the applicant are unnecessary, and are hereby refused," Idris ruled.
NAN reports that relief two is if granted, the leave should operate as a stay of further proceedings before the Lagos high court while relief three is an order stopping the EFCC from taking further steps in Babalakin's arraignment.
The court adjourned the case till Dec. 12 for hearing of the applicant's motion on notice.
Akoni had argued that the applicant was not asking the court to carryout a review of the respondents' act, nor challenge the jurisdiction of the Lagos high court in Ikeja but to determine the legality of the charge preferred against Babalakin.
He argued that the charge was not in accordance with the provisions of the law, claiming that the respondents lacked the power to prefer a charge against the applicant without the fiat of the attorney-general of Lagos State.
He said that the decision of the respondents to prefer the charge was not done in accordance with the provisions of the Constitution, the EFCC Act and the Criminal Code Laws of Lagos State.
"There is nothing on the face of the charge to show that the attorney-general of Lagos State is part of, or has authorised by fiat, the preferring of this charge. (NAN)