The trial of a former governor of Abia State, Orji Kalu, was stalled Tuesday after the prosecution, the Economic and Financial Crimes Commission (EFCC), failed to present one of its major witnesses.
Rotimi Jacobs, counsel to the EFCC, told Mohammed Idris of a Lagos Division of the Federal High Court that the Commission had been having difficulties tracking down its next witness, M.A Udoh.
“Our main witness that we intend to call, we have approached him for more than six months,” said Mr. Jacobs, a Senior Advocate of Nigeria.
“We have noticed that each time the matter is coming up, he would just travel to Umuahia or Calabar or Cameroon.
“He always has the dates of the matter and I was forced to apply for a subpoena. Your Lordship signed one, which we took to the Abia State Government House, Umuahia because we found out that he was a civil servant, but on getting there, we were told that he had since left service.
“He was supposed to come today but he switched off his phone. EFCC operatives went to his house in Umuahia, yesterday (Monday) and this morning, they met his wife who said he had travelled to Calabar. Despite all the efforts we have not been able to bring him to court.”
Mr. Jacobs alleged that some persons were behind Mr. Udoh’s uneasiness and urged the court to give a short adjournment to enable him locate and bring Mr. Udoh, a retired employee of the Abia State Government House, Umuahia, to testify in court.
The defence lawyers, however, objected vehemently to the request for a short adjournment saying it was frivolous.
Awa Kalu, Solo Akoma, and K.C.Nwofor (all Senior Advocates of Nigeria) expressed disappointment at the prosecution’s request for adjournment, noting that they had abandoned other pressing matters in Abuja and flown to Lagos just to ensure that there was no further delay in the case that had lasted for over 10 years.
“We are not going to agree to a request that will force Your Lordship to close for one week,” said Mr. Kalu, a professor of Law.
Mr. Akoma, while aligning himself with Mr. Kalu, recalled that on November 30, last year, while the judge was adjourning the matter, Mr. Jacobs had told the court that he had four more witnesses to call, including Mr. Udoh.
He wondered why any of the other three witnesses was also not produced in court, even if the prosecution were unable to locate Mr. Udoh.
“That shows the frivolity of the steps they have taken to bring their witnesses to court,” Mr. Akoma said.
He urged the court to either foreclose the prosecution’s case or if the request for an adjournment would be granted, the court should order the prosecution to bear the cost of the defence’s transportation and hotel accommodation.
This, he said, was in line with the provisions of Section 396(6) of the Administration of Criminal Justice Act 2015.
Toeing the same line of argument, Mr. Nwofor said it was regrettable that since the trial resumed, all the adjournments had been at the instance of the prosecution.
He said on account of the slow pace of the case, his client, which is a company, had lost huge amount in foreign currency in terms of contracts.
“We had 3,000 workers who have lost their jobs; we had 250 expatriates, they have lost their jobs and my friend is here asking for an adjournment,” he added.
Mr. Nwofor added that he had been unable to get his legal fee as his client was broke and was eagerly waiting for the trial to end.
He urged the court to award a cost of N10 million against the prosecution in favour of his client for the delay.
But Mr. Jacobs argued that the case was delayed for over 10 years at the instance of the defendants who pursued an interlocutory appeal – an appeal against an aspect of a case before trial has concluded – all the way to the Supreme Court.
He said it was due to the time spent by the defendants pursuing the interlocutory appeal that the prosecution was experiencing difficulties in assembling its witnesses some of whom had died, retired or relocated out of the jurisdiction.
“If they had allowed us to go on within two to three years of the case, all our witnesses would have been assembled in one day,” he said, urging the judge to grant his request for an adjournment and to reject the award of cost.
In his ruling, the judge noted that the case had been adjourned on four different occasions at the request of the prosecution.
“Where a witness that ought to attend court fails to attend court and summons has been issued and served on the same witness, then the prosecution would pursue the appropriate provisions of the ACJA to compel the attendance of the witness in court,” the judge said.
“This trial will no longer be adjourned on account of unavailability of witness to attend court… It is unfortunate that a trial, which has been adjourned for hearing from day to day could not proceed due to witness unavailability.”
The judge, however, conceded to an adjournment but warned that it would be the last of its kind.
The matter was subsequently adjourned till January 22 and 23.
Mr. Kalu, Udeh Jones Udeogu, and Slok Nigeria Limited are facing a 34-count charge of alleged N32.2 billion fraud.
They were re-arraigned in October 2016 before Mr. Idris and they pleaded not guilty to all the charges.
