By Dipo Olowookere
Former Plateau State Governor, Mr Joshua Dariye, has again lost his bid to scuttle his N1.162 billion fraud trial, preferred against him by the Economic and Financial Crimes Commission (EFCC).
Justice Adebukola Banjoko of the Federal Capital Territory (FCT) High Court, Gudu, Abuja, on March 6, 2017 threw out his motion seeking for his lordship to be disqualified from the trial.
Mr Dariye, who is facing a 23-count charge for allegedly diverting the state’s Ecological Fund to private companies including Ebenezer Retnan Ventures and Pinnacle Communications Limited, had in January lost in a similar bid, having applied to Justice U.I. Bello, the Chief Judge, CJ of the FCT High Court, accusing the trial judge of “manifest and undisguised bias”, and seeking for the case file to be transferred to another judge.
The CJ threw out the application and ordered Mr Dariye to go and continue with his trial before the judge as his allegation of bias was “baseless”.
At the time Mr Dariye sent his letter to the CJ, dated December 13, 2016 his defence counsel, G.S. Pwul, SAN, also brought two motions to the court, one of which was the one asking the trial judge to “disqualify” his lordship from the case.
He had also applied to the court, seeking for the recall of two principal witnesses, Musa Sunday, an EFCC operative who was cross-examined by both the prosecution and defence on January 25, 2016 and Peter Clark, a retired detective constable with the United Kingdom, UK Metropolitan Police, who was cross-examined by both counsels on May 9, 2016.
At the last sitting on March 2, 2017 Pwul, while arguing the applications, contended that it was necessary to recall the witnesses “in relation to new evidence”.
Citing exhibits D6 – D34 as the reasons for the recall, he further argued that there was need to further cross-examine Sunday as regards transactions between the Plateau State government and Pinnacle Communications Limited. He had also urged the court to summon Clark “in relation to his evidence and investigation activities carried out in the United Kingdom and to confront him with new evidence”.
Prosecution counsel, Adeniyi Adebisi, in his argument contended that the defence was provided with the list of all the witnesses in the proof of evidence, which included the names of the witnesses, which it wanted to bring to the court.
He added that “the defence knew in advance the witnesses to be called by the prosecution and so had adequate time and opportunity to review their statements and all evidence referred to were in existence and available long before Musa Sunday and Peter Clark testified before the court”.
Adebisi further argued that: “Dariye was present at all proceedings and well represented by his counsel who thoroughly cross-examined the two witnesses.” He reminded the court that Clark had retired and during the trial “the defence was never stampeded and the court didn’t force the counsel to conclude his cross-examination”.
He surmised that: “The applications are a ploy to delay the case and the Supreme Court has given directive for expeditious hearing”. He urged the court to dismiss the applications “with substantial cost”.
Justice Banjoko in ruling on the motion seeking for his lordship to be disqualified from the case, said: “I have no interest whatsoever in this case and I have so far presided over the case without fear or favour, and in line with my oath of office and so the motion lacks merit and is accordingly dismissed.”
The trial judge ruling on the second motion, noted that “the defence has called 16 witnesses and is now seeking to reopen prosecution’s case when defence is still going on”, and “the prosecution has already closed its case”.
The trial judge citing several authorities noted that while a recall by a party involved in a case is not out of order, “a recall is permitted only by a trial judge” and based on two facts that the party seeking a recall brings to the court “good enough facts as well as questions he intends to ask the witness which in this instance the defence has not done”.
While dismissing the application seeking for recall of Clark, the trial judge ruled that: “I have carefully considered all the authorities and submissions of counsels and found that Peter Clark the prosecution witness nine, PW9, resides in a territorial jurisdiction outside of Nigeria and in his oral testimony he stated that he retired on 9 March 2015, and came to Nigeria on his own freewill to see to the end of an investigation he started and the court can see that the witness was extensively cross-examined by the defence and the defence was not curtailed or prevented and so had maximum advantage to cross-examine him.”
The trial judge noted that Clark was a master of his own time and there was nothing to hold that he still resides in the UK since his retirement and moreover, he was not a “compellable witness”.
“The application is hereby denied and accordingly dismissed,” the trial judge held.
Justice Banjoko while adjourning to March 16, 2017 “for defence to continue”, however acceded to the request of the defence to recall Sunday for “further cross-examination in the interest of justice” and because he still resides in the “territorial jurisdiction of Nigeria”.
