The Economic and Financial Crimes Commission (EFCC) might have its case against the former Abia State governor, Mr. Orji Uzo Kalu, damaged if it fails, again, to produce its witness.
Counsel of the commission, Mr. Rotimi Jacob, told the Federal High Court in Ikoyi, Lagos that its star witness in the trial is evading appearance.
At the commencement of proceedings today, January 16, 2018, Mr. Jacob informed the court that the matter was due for continuation of trial but that he could not proceed because he could not find his star witness.
Mr. Jacob told Justice Mohammed Idris that the witness, Mr. Mike Udoh, had repeatedly made himself unavailable whenever he was due to appear in court.
He accused some unknown persons of being behind Mr. Udoh's absence and vowed that they would be prosecuted.
He said: "Our main witness that we intended to call, we have approached him for more than six months. We have noticed that each time the matter is coming up, he will just travel to Umuahia or Calabar or Cameroun.
"He always has the dates of the matter and I was forced to apply for a subpoena. Your Lordship signed one, which we took to the Abia State Government because we found out that he was a civil servant. But he has since left the service.
"He was supposed to come today but switched off his phone. EFCC went to his house in Umuahia yesterday and this morning but met his wife who said he travelled to Calabar. Despite all our efforts, we have not been able to bring him."
He prayed for a short adjournment of about a week to enable the agency round up its case.
Mr. Jacob added: "We have information that some people are behind his not showing up. We are investigating and will charge the persons. As we speak, our operatives are in Abia, but they can't pick up the wife in place of the husband."
Mr. Kalu's counsel, Mr Awa Kalu (SAN), accused the EFCC of a ploy to foist an adjournment on the court.
The former Abia State Attorney-General and Commissioner for Justice who is now representing Mr. Kalu said: "The defendants have been diligent in presenting themselves for trial, but the prosecution has been engaging in push and starts. The second defendant is a retired civil servant.
The first defendant (Kalu) is a politically exposed person. There are four senior counsel with at least one junior all at the defendants' cost. Yet we are here only to be told of circumstances beyond the prosecution's control. There are many witnesses listed by the prosecution. The non-appearance of one of them cannot foist an appearance on this case."
Second defendant (Udeogu)'s counsel, Solo Akuma (SAN), adopted his colleague’s submissions, describing EFCC's application as "a frivolous one."
He said: "We abandoned everything else to come to court. My client is complaining he cannot afford my bill. The defense has never made any application for adjournment. All adjournments have been at the prosecution's instance. They must be compelled to close their case, otherwise Your Lordship should award costs to cover our transport and hotel bills."
Akuma condemned the approach taken by Jacobs to bring his witnesses to court.
He recalled that on November 30 of last year (2017) while the judge was adjourning the matter, Jacobs had told the court that he had four more witnesses to call, including Udoh.
He wondered why none of the other three witnesses was also not produced in court, even if the prosecution had a difficulty bringing Udoh.
"That shows the frivolity of the steps they have taken to bring their witnesses to court," Akuma said.
He urged the court to either foreclose the prosecution's case or if the request for an adjournment would be granted, the court should order the prosecution to bear the cost of the defenses’ transportation and hotel accommodation.
This, he said, is in line with the provisions of Section 396(6) of the Administration of Criminal Justice Act 2015.
Counsel to the third defendant, Slok Nigeria Ltd, Mr., C. C. Nwofo, lamented the economic damages the firm has suffered because of the trial and adjournments.
He said: "The third defendant is a company which has suffered and lost contracts of about $500million from China Exim Bank for ship acquisition. About $350million has been lost from African Bank in Egypt. 3,000 workers have lost their jobs because of this case. 250 expatriate workers have lost their jobs because of this case.
"We have not been paid our fees in this case, but I'm doing it because I believe this case will end one day and I'll be paid. If they are not able to proceed, I propose a cost of N10million."
But Mr. Jacob, who urged the court to uphold his prayer, said it was not frivolous.
"If I have that man (Udoh) today, I am comfortable to close my case. I am entitled to five adjournments. We want to use this week to get this witness. We now know his house. We must get him. I believe we will. No amount of shielding will protect him."
He argued that the case was delayed for over 10 years at the instance of the defendants who pursued an interlocutory appeal all the way to the Supreme Court.
He said it was due to the time spent by the defendants pursuing interlocutory appeal that the prosecution was experiencing difficult in assembling its witnesses, some of whom had died, retired or relocated out of jurisdiction.
"If they had allowed us to go on within two to three years of the case, all our witnesses would have been assembled in one day," he said, urging the judge to grant his request for an adjournment and to reject the award of cost."
In a bench ruling, Justice Idris upheld Mr. Jacob's application for adjournment and declined the defendants' application for cost. He noted that this was the final adjournment he would allow.
Justice Idris said: "Where a witness that ought to attend court, fails to attend court and summons has been issued and served on the same witness, then the prosecution would pursue the appropriate provisions of the ACJA to compel the attendance of the witness in court...This trial will no longer be adjourned on account of unavailability of witness to attend court... It is unfortunate that a trial, which has been adjourned for hearing from day to day could not proceed due to witness unavailability," the judge said.
The case continues on January 22 and 23.
The three defendants were arraigned on October 31, 2016 by the EFCC before Justice Mohammed Idris on a 34-count charge of N3.2billion fraud.
They were accused of conspiring among themselves to divert a total of N2.9bn from the coffers of the Abia State Government.
But the defendants pleaded not guilty.