Kalu: Court rules February 1 on summons compelling lawyer as witness to give evidence
A Federal High Court Lagos will on Feb. 1 rule on whether a lawyer can be compelled to give evidence as prosecution witness through a summons in the ongoing trial of a former Governor of Abia, Orji Uzor Kalu.
Justice Mohammed Idris had reserved ruling and continuation of trial until Feb.1 and Feb. 2, after hearing arguments on the issue by counsel from both parties in the suit.
The News Agency of Nigeria (NAN) reports that the Economic and Financial Crimes Commission (EFCC) had on Oct. 31, 2016, slammed a 34-count charge bordering on fraud on Kalu and his former Commissioner for Finance, Ude Udeogo.
The accused were alleged to have committed the offences of fraud amounting to N3.2 billion between August 2001 and October 2005.
Also charged along with the accused is a company believed to be owned by Kalu — Slok Nigeria Ltd.
The accused had pleaded not guilty to the charges and were granted bails.
When trial resumed on Tuesday, a lawyer, Mr Kingsley Ekwem, informed the court that he was issued a witness summons to appear in court and give evidence in relation to a letter before it.
He said he had filed a motion in relation to the issue, challenging it, adding “I am only bound by the decision of the court.”
The lawyer said he received a summons to testify in relation to a letter before the court as regards the third accused — Slok Nigeria Ltd.
According to Ekwem, by the provisions of Section 192 of the Evidence Act 2011, no legal practitioner shall at anytime without the consent of his client be permitted to disclose any communication made to him or to state the content of any document which he has become acquainted with in the course of his employment.
He added that rule 19 (1) of the Rules of Professional Conduct for Legal Practitioners provides that except as provided under (3), all communications made by a client to his lawyer are privileged and such lawyer shall not use the secret of a client to his own privilege without the express consent of his client.
He argued that the application of the prosecution had sought his appearance in court to give evidence in respect of a letter which borders on professional communication between the third accused (Slok Nigeria Ltd) and his law firm.
The lawyer insisted that he must act in accordance with the provisions of the Evidence Act which is also applicable in Criminal Jurisprudence and submitted that he was not a “compellable” witness to come and tender a document, or give evidence in respect of a letter or issue which borders on professional communication between a lawyer and his client.
Ekwem, therefore, urged the court to uphold his argument and disregard the witness summons.
In his response, the prosecution counsel, Mr Rotimi Jacobs (SAN), told the court that they had only written to the lawyer as the author of Exhibit H to come and testify if the said letter emanated from his chambers.
Jacobs argued that although a lawyer is precluded from disclosing a communication made to him by his client, the proviso to Section 192 (1) states that nothing shall prevent the disclosure of any fact suggestive of a crime.
He said the lawyer could not come under the provisions of Section 192 of the Act in advancing his argument, insisting that the lawyer is a “compellable witness” by the provisions of the law and urged the court to reject the argument of the lawyer.
On his part, counsel to the 1st accused, Mr Awa Kalu (SAN), noted that the provisions of Section 105 of the Evidence Act should be read together with Section 192 (1).
He argued that the document in question was obtained by a warrant and not an order of the court, adding that the prosecution cannot compel the witness to testify on things he ordinarily cannot do by his profession.
According to him, Section 192(1), (b) protect the disclosure of any fact obtained by a legal practitioner in the cause of his duty.
He urged the court to refuse the witness from being used to incriminate the first accused.
Other defence counsel also aligned themselves with his submissions.
After listening to all the counsel, Justice Idris adjourned the case until Feb. 1 and Feb. 2 for ruling and continuation of trial by noon.
NAN also reports that Kalu was alleged to have used his company to retain in the account of First Inland Bank, now FCMB, the sum of N200 million and that the money was part of funds illegally derived from the coffers of Abia Government.
The third accused (Slok Nigeria Ltd) and Emeka Abone, who is said to be at large, were also alleged to have retained in the company’s account the sum of N200 million on behalf of the first accused (Kalu).
In addition, the accused were alleged to have retained about N2.5 billion in different accounts, property of Abia Government.
Cumulatively, in all the counts, the accused were alleged to have diverted over N3.2 billion from the state’s treasury during Kalu’s tenure as governor.The offences contravened the provisions of Sections 15(6), 16, and 21 of the Money Laundering (Prohibition) Act, 2005.
It also contravened the provisions of the Money Laundering Act of 1995 as amended by the amendment Act No.9 of 2002 and Section 477 of the Criminal Code Act, Laws of the Federation, 1990.
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