Again, Dariye Loses Bid to Scuttle N1.162bn Fraud Trial
Joshua
Dariye, a former Plateau State governor 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.
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 Dariye to go and continue with
his trial before the judge as his allegation of bias was "baseless".
At
the time 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 wa"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".
Wilson Uwujaren
Head Media & Publicity
6 March, 2017
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