A Federal High Court, Abuja, on Wednesday, rejected the request by the Economic and Financial Crimes Commission (EFCC) to play video evidence in the ongoing trial of Andrew Yakubu, former Group Managing Director (GMD), and Nigerian National Petroleum Corporation (NNPC).
Justice Ahmed Mohammed, in a ruling, dismissed the application on the grounds that Yakubu was not the maker of the exhibits and as such, he could not be cross-examined based on those documents.
Justice Mohammed had, on June 30, fixed today for ruling on the anti-corruption agency’s application.
The agency’s lawyer, Farouk Abdullah, had sought an order of the court to play video documents which were tendered while taking the evidence of the sixth prosecution witness (PW6) on Oct. 17, 2018, and admitted in evidence by the court in cross-examining Yakubu, who was in the witness box as the first defense witness (DW1).
The court had marked the documents tendered as Exhibits “M,” “N” and “N1.”
While Exhibits “M” and “N” were compact discs, Exhibit “N1” was a memory card.
However, Counsel to the defendant, Ahmed Raji, SAN, opposed the EFCC’s application.
Raji had argued that Yakubu was not a maker of the exhibits which in the eyes of law were documented.
“This ought to have been done through the witness who produced the document (PW6) and who is the maker and who tendered exhibits in them.”
The senior lawyer also argued that allowing such application would be going contrary to “the directives of the Court of Appeal as to what is to be done in the suit.”
The EFCC lawyer also disagreed with Raji. Abdullah had enjoined the court to look at the provisions of the Evidence Act as to whether a counsel in a trial has a right to make use of exhibits already before the court at any stage of proceedings in determining an issue, particularly in cross-examination.
He submitted that an exhibit already before a court could be used to either establish a fact or dispel a fact at any stage of a proceeding.
“It is a right that can be enjoyed by both prosecution and defense.
“We urge my lord to so hold and answer this in affirmative.”
The Judge, however, disagreed with the EFCC in his ruling.
Justice Mohammed also deferred the agency’s fresh application to recall two prosecution witnesses (PWs) for a re-examination pending when Yakubu’s cross-examination is completed.
Abdullah had applied for a recall of two of the agency’s PWs in the trial following the court’s rejection of his request to play the video evidence.
But Raji opposed the prayer, arguing that since the EFCC had called all its witnesses and closed its case, “recalling those witnesses when the defendant had already opened his defense and he is in the witness box will only interrupt the proceeding.”
He also argued that allowing the prayer would not be doing justice to the defendant who had been in the witness box for over a year.
He urged the court to defer the anti-graft commission’s application until his client’s cross-examination is completed.
In the ruling, the judge noted that Yakubu, who had been in the witness box as DW1 (first defense witness) since July 8, 2020, had already given his evidence before the court.
Mohammed held that it would be unfair to keep the defendant in the witness box for over a year and grant such prayer when the cross-examination was yet to be completed.
“Therefore, the application to recall two witnesses is deferred until the DW1 cross-examination is completed.”
Abdullah then applied for a short adjournment to enable him to produce some documents which would be relevant in cross-examining Yakubu.
Raji described the application as “a deliberate attempt to prolong the proceeding for reason known to the prosecution.”
He said in order to delay processing; the EFCC lawyer had been coming up with one application or another.
“My lord, I want it to be on record because if a defense counsel does this, especially senior lawyers, the same song will be ‘oh, they don’t allow criminal trials to move.
“My lord, a diligent prosecution would have come with everything.”
Raji, who said the application for adjournment was lacking in merit, urged the court to refuse it.
“It is against the spirit of justice and Administration of Criminal Justice Act).”
The judge said though the court was not inclined to granting the plea considering the time the exercise had taken, he adjourned the case until July 29 for the continuation of the cross-examination of Yakubu.
The anti-graft agency had, in 2017, raided the residence of the ex-NNPC boss in Kaduna and found 9, 772, 800 dollars and 74, 000 pounds (9.7 million dollars and 74, 000 pounds) in a safe.
Yakubu was, however, arraigned on March 16, 2017, on six counts but the trial court struck out counts five and six.
The Court of Appeal also ordered the former GMD to defend only counts three and four which bordered on failure to make full disclosure of assets, receiving cash without going through a financial institution.
