Senior Advocate of Nigeria, Chief J.S. Okutepa, has questioned the decision of Justice James Omotosho of the Federal High Court, Abuja, to withdraw from the trial of Ali Bello and Dauda Sulaiman, arguing that the timing of the recusal raises significant legal and procedural questions.
Okutepa, in a legal opinion on the development, said the alleged interference with exhibits in the case did not, by itself, establish that Justice Omotosho was incapable of continuing with the trial impartially.
The controversy followed allegations that some messages contained in mobile-phone evidence, particularly Exhibits N and O, had been deleted or tampered with.
Justice Omotosho had ordered investigations into the alleged interference, including the conduct of the court’s registrar and the alleged involvement of the second defendant.
He subsequently returned the case file to the Chief Judge for reassignment, citing concerns that continuing with the trial could create a perception of bias, especially because Exhibit N was considered material to the prosecution’s case.
But Okutepa argued that the integrity of disputed evidence and the impartiality of the judge were separate legal questions.
He noted that the Economic and Financial Crimes Commission had already called 17 witnesses and closed its case on June 2, 2026, after which the defendants filed their no-case submissions.
The SAN therefore questioned why the alleged tampering, which reportedly became known in February, did not result in an earlier recusal.
“If the alleged tampering had already raised a reasonable apprehension that the Judge could not fairly determine the case, why was that apprehension not considered sufficiently serious to require recusal before the prosecution closed its case?” he asked.
According to Okutepa, the court had already received evidence, dealt with evidential disputes and supervised the prosecution through its final witness.
He maintained that the no-case submission now before the court was a limited judicial exercise that did not require Justice Omotosho to determine the defendants’ ultimate guilt or innocence.
Rather, he said, the court could have assessed whether the prosecution had presented sufficient evidence to warrant the defendants being called upon to enter a defence, while discounting any portion of Exhibit N found to have been compromised.
Okutepa further cautioned against allowing public perception or speculation to substitute for the established legal test governing judicial recusal.
He argued that recusal should be based on an objective and reasonable apprehension, or real likelihood, of bias, rather than suspicion or conjecture.
The SAN also warned that withdrawing a judge at an advanced stage of a criminal trial could unintentionally allow alleged interference with evidence to derail proceedings that had already progressed substantially.
He said the appropriate response to alleged evidence tampering should include identifying those responsible, preserving the original evidence where possible, determining its impact on the prosecution’s case and allowing the trial to proceed according to law.
On an earlier forfeiture proceeding involving property in Gwarimpa, Okutepa said a judge’s previous involvement in a related matter did not automatically establish bias.
He said the critical question was whether the earlier proceeding created an objective and reasonable basis for concluding that the judge could no longer approach the criminal trial with an open and impartial mind.
While acknowledging Justice Omotosho’s concern about protecting the integrity of the judicial process, Okutepa said public confidence in the judiciary could also be strengthened when judges resolve difficult procedural issues according to established legal principles.
He added that, subject to the full contents of the ruling and the applicable appellate procedure, the prosecution might need to challenge the recusal on appeal.
According to him, an appellate determination would help clarify the legal and procedural issues arising from the decision and provide guidance on how similar circumstances should be handled in future trials.
