The scheduled trial of a former governor of Abia State, Orji Kalu, for an alleged fraud of N2.9bn was stalled on Monday as the defence team challenged the competence of the first prosecution witness to testify in the case.
Kalu was re-arraigned on October 31, 2016 by the EFCC on 34 counts of money laundering before Justice Mohammed Idris of the Federal High Court in Lagos.
He was re-arraigned alongside Udeh Udeogu and Slok Nigeria Limited.
They had pleaded not guilty to the charges and Justice Idris allowed them to continue on the bail earlier granted them by Justice Adamu Bello before whom they were first arraigned on April 20, 2008.
Though Justice had fixed Monday for commencement of trial, the proceedings could not make much progress as the defence counsel, Chief Mike Ozekhome (SAN) and Chief Solo Akuma (SAN), raised objection to the competence of the first prosecution witness, Mr. Onovoe Oghenovo, to testify.
Soon as Oghenovo was called into the witness box at the request of the EFCC prosecutor, Mr. Rotimi Jacobs (SAN), Akuma rose and told the judge that though Oghenovo’s name was listed as number 12 among the witnesses that the EFCC intended to call, his statement was not frontloaded.
He contended that allowing Oghenovo to testify while the defence had no idea of what he came to court to say would violate the defendant’s right to fair hearing.
“The witness is listed; we have gone through the proof of evidence served on us. We do not see the witness’ statement. We want to address Your Lordship on why he (witness) should not be allowed to give evidence.
“By virtue of Section 36 (c) Paragraph B of the 1999 Constitution, service of witness’ statement is a mandatory requirement, a constitutional right and a facility that should be provided to the accused person,” Akuma argued.
He also pointed the judge’s attention to Section 379(1)(a) of the Administration of Criminal Justice Act 2015, which, he argued, made it mandatory for the prosecution to frontload the statement of any witness it intends to call.
“To do otherwise will amount to a great infraction of the fundamental rights of the defendants under Section 36(c) of the Constitution,” Akuma added.
Ozekhome, who is representing Kalu, pursued the same line of argument.
He said, “Going by the doctrine of fair hearing, we ought to know and not be taken by surprise through a booby trap what he (Oghenovo) is going to say. In this regard, I want to adopt the submission by my learned friend, Solo Akuma.”
Responding, however, the prosecutor, Jacobs, insisted that there was no need to frontload the witness’ statement because the witness was subpoenaed by the court.
He added that what the witness came to say in court was already part of the proof of evidence served on the defendants since 2007 when the charges were filed.
“The witness is in court by virtue of an order of Your Lordship summoning him to come and give evidence. It is in compliance with that order that the witness is in court. I submit that when a witness is on subpoena it is not required by law that his statement should be frontloaded.
“But even then, the role played by the witness is at page 121 of the proof of evidence. Your Lordship will see the correspondence by this witness. That qualifies as a statement,” Jacobs said.
He added that having served the proof of evidence on the defence team since 2007, “the issue of catching them by surprise will never arise.”
He urged Justice Idris to allow Oghenovo to testify.
After listening to the parties, Justice Idris adjourned till Tuesday for ruling.
The EFCC, in the charges, alleged that while he was governor of Abia State, Kalu siphoned funds running into over N2.9bn from the state’s treasury.
The ex-governor was accused of diverting state funds into the account of Slok Nigeria Limited, a company, the EFCC claimed was owned by Kalu and his family members.
Kalu was said to have allegedly diverted the funds in tranches of N200m, N50m, N200m, N300.8m, N545m, N429m, N288.4m, N190m, N157m, N152.8m, N100m, N84m and N50m between August 13, 2003 and January 12, 2005.
The offence is said to be contrary to Section 17 (c) of the Money Laundering (Prohibition) Act 2003 and punishable under Section 16 of the same Act.
The EFCC accused Slok Nigeria Limited of conniving with one Emeka Abone, said to be at large, to help Kalu retain the allegedly stolen funds in its accounts, when Slok Nigeria Limited “knew or at least suspected the said Orji Uzor Kalu to have engaged in a criminal conduct.”
The EFCC said the company is liable to punishment under Section 16 of the Money Laundering (Prohibition) Act 2004.
The 2nd defendant, Udeogu, was accused of helping Kalu to pay part of the allegedly stolen funds into the account of Slok Nigeria Limited with the defunct FinBank Plc.
The offence is said to be contrary to Section 427 of the Criminal Code Cap 77, Laws of the Federation of Nigeria, 1990.