Yakubu Maikyau, SAN, Counsel to a defendant in a suit filed by EFCC against Murtala Nyako, former Adamawa Governor, and others, has appealed to the Federal High Court, Abuja, to order the EFCC to produce its three witnesses for cross-examination.
Maikyau made the oral application, on Wednesday, before Justice Okon Abang.
Recall that while Nyako is the 1st defendant, his son, Sen. Abdulaziz Nyako, is the 2nd defendant while Zulkifik Abba is the 3rd defendant in the case.
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The EFCC had charged the former governor, along with others, with N40 billion fraud.
They were arraigned on a 37-count charge bordering on money laundering allegedly perpetrated while Nyako was Adamawa governor.
Also arraigned along with them was Abubakar Aliyu and firms allegedly used to perpetrate the fraud which were joined as the 5th to the 9th defendants were Blue Opal Ltd, Pagoda Fortunes Ltd, Tower Assets Management Ltd and Crust Energy Ltd.
At the resumed hearing on Wednesday, Counsel to the EFCC, Rotimi Jacobs, SAN, had indicated his interest to close his case, having taken the evidence of Kobis Arithimni, who was Secretary to Adamawa State Government during Nyako’s administration, via video link in the last sitting.
NAN reports that Justice Abang had, on Oct. 30, granted EFCC’s prayer to take Arithimni via video link.
Arithimni, who presently resides in the UK, gave his testimony on Nov. 5.
However, Maikyau, who opposed to the closure of the case, on Wednesday, told the court that since the prosecution was unable to call all its witnesses on its list, the prosecution is under obligation, upon request by the defendant, to present such witnesses for purpose of cross-examination by the defence.
“I stand to make the application on behalf of the 3rd defendant that the prosecution be directed by this honourable court to make available witnesses number 12, 26 and 27,” he appealed.
He said “the witnesses are Adejo Davis, Engr. Lami and Babangida Inuwa.”
The lawyer, who noted that these witnesses were yet to be called by the EFCC, said the call became necessary in the spirit of fair hearing.
He acknowledged that though the prosecution is not bound to call all the witnesses listed by it, Maikyau said the 3rd defendant wanted to take advantage of the principle of law that has been made available to the defence which is only consistent to the principle of fair hearing.
He cited previous cases in Court of Appeal, West African Court of Appeal, among others, to buttress his argument.
He told the court that he was alerted to make the application.
He stressed that he opposed the closure of the case to enable the prosecution produce these witnesses for cross-examination.
He said doing so would also amount to a discharge by the prosecution to assist the defence in establishing their innocence.
Maikyau added that though it was still within the prosecution’s discretion and right not to call their witnesses, he enjoined Jacobs to make them available.
“If there is a witness whose evidence can exonerate any or all the defendants, it is the duty of the prosecution to either call that witness or make him available so that the defence can take advantage of that prosecution witness favourable to the defence,” he said.
The lawyer argued that granting the request would also assist the court in deciding the case.
Counsel to the 4th defendant, Eteya Ogana, who commended the prosecution for bringing the case to a close, said: “we shall be asking for a date to address the court on no-case submission.”
Counsel to the 5th defendant, Olumide Olujinmi, said he aligned himself with the submission of the 3rd defendant.
Counsel to the 9th defendant, A. O. Dada, who opposed to the EFCC’s plan to close its case, urged Justice Abang to direct that the prosecution to produce the three witnesses as requested by Maikyau.
Citing a section of the law to back his claim, he said the prosecution should not indulge in hide-and-seek game.
The EFCC’s lawyer said he was surprised that his colleagues were making the application at the time he had planned to close his case.
“I had indicated in the last adjourned date that I intend to close my case and will not call any other witness.
“The practice that I know is that if it requires any witness, they suppose to inform me to present the witness in court and it is upon the refusal of the prosecution that they can make it an issue with the court.
“Now to jump the gun and ask the court to make an order when no request has been made seems to me improper,” he said.
The prosecution counsel, therefore, sought for more time to argue the oral application and to also know the position of the witnesses on the issue.
“I don’t even know whether their statement is material to this case and if they are available,” he said.
Responding, Maikyau said Jacobs did not indicate in the last adjourned date that he would be closing his case.
“He said he would go and review his case. He said he needed time to review the evidence,” he said.
Besides, Maikyau argued that there was no way he would have made such request without “appealing to the power of this court to bring the witnesses.
“My Lord, this is an appropriate time to do this.”
On his part, Dada urged Justice Abang to make an order that the application on the request by the 3rd defendant counsel be in written address to save the time of the court.
None of the defendant counsel objected to the request by the prosecution counsel calling for an adjournment.
Justice Abang, therefore, adjourned the matter till Nov. 19 to enable prosecution present his argument on the issue raised by learned counsel to the 3rd defendant.
“The court’s decision on the application of the prosecution to close their case shall abide on the outcome of the court’s decision on the issue raised by learned senior counsel for the 3rd defendant,” he said.