Eric Ikhilae, Abuja
A FEDERAL High Court in Abuja has rejected the request by a defendant in the alleged N40 billion fraud trial of former Adamawa State Governor Murtala Nyako and others to stop the prosecution from closing its case.
The defendant, Zulkifik Abba (listed as the third), had prayed the court to order the Economic and Financial Crimes Commission (EFCC) to call three persons listed among the prosecution’s witnesses at the commencement of the case.
The prosecution had called 21 witnesses and indicated its intention to close its case on the grounds that the remaining three witnesses it had planned to call were no longer available.
Abba’s lawyer Yakubu Maikyau (SAN) objected to the prosecution’s decision to close its case.
He urged the court to compel the EFCC to call the three witnesses on the grounds that they were relevant to his client’s case and for him to cross-examine them.
Ruling Justice Okon Abang held yesterday that the request by the defendant had no foundation in law.
He said the Evidence Act, the Rules of Court and the Administration of Criminal Justice Act (ACJA), which apply to criminal trial, do not allow the court to compel the prosecution to call the witnesses it could not produce.
The judge noted that the prosecution had, while applying to close its case, said it could not reach the three proposed witnesses, one of whom it said was on admission in a London hospital.
Justice Abang faulted the third defendant’s claim that his request was hinged on its right to fair hearing, and held that “fair hearing has been complied with in this case, which means that the trial has been conducted in accordance with the law and rules of court”.
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He added: “The court has adequately complied with the provision of Section 36(6)(b) of the Constitution. The section does not say a defendant should be provided all facility to conduct its case; it says ‘adequate facility’. And that has been done.
“The decision by the prosecution not to call the three witnesses was not deliberate: they were not available.
“The request by the third defendant in his application is not provided for under the ACJA.
“If the defence is desirous to call these three witnesses, it can apply for the statements of the witnesses and apply for the issuance of witness summons on them.”
At the conclusion of his ruling, Justice Abang allowed the prosecution, represented by Oluwaleke Atolagbe, to close its case.
The defendants’ lawyers then indicated their intention to make “no-case” submissions for their clients.
A defendant, who makes a no-case submission, argues that the prosecution, through its witnesses, failed to make out a prima facie case, linking him/her to the commission of the offence alleged.
If the no-case submission succeeds, the trial is terminated and the defendant freed. But if it fails, the defendant is ordered to enter a defence.
Justice Abang adjourned till March 6, 2020, for parties to adopt their written addresses on the no-case submission.
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