By Onyewuchi Ojinnaka
The former Abia State Governor, Dr. Orji Uzor Kalu could not open his defence on Friday before a Federal High Court sitting in Lagos due to arguements on whether he should enter into the witness box to explain his role on an alleged fraud charge initiated against him and two others by the Economic and Financial Crimes Commission (EFCC).
Kalu’s lawyer, Chief Awa Kalu (SAN) had at the resumed hearing of the matter on Friday indicated the readiness of his client to open his defence from outside the box contrary to the EFCC’s insistence that Kalu would be the witness box and be cross-examined while giving evidence-in-chief.
The Silk lawyer had advocated that the former governor would not be open to cross-examination by the prosecution in line with the provisions of Section 358 (1) (a) of the Administration of Criminal Justice Act (ACJA) 2015.
He submitted that his request was anchored on the fundamental principle of criminal law for all defendants who are presumed innocence until proven otherwise.
“Section 358 (1) (a) is not a donation from the court to the first defendant but a statutory provision. A man who can refuse to talk can also refuse to be cross-examined.
“Once a defendant charged with a criminal offence opt to testify from where he is, he is only exercising his rights that flows from the Constitution. The first defendant carries no burden but it is the prosecution that is carrying the burden of prove beyond reasonable doubt”, the silk lawyer argued.
Other defence counsel, Chief Solo Akuma (SAN) and Mr. K. C. Nwofor (SAN) aligned with the position of Chief Awa Kalu.
In opposing the arguement of Awa Kalu and other defence counsel, EFCC’s counsel, Rotimi Jacobs (SAN) said the ACJA does not regulate evidence in court.
He further argued that since the first defendant (Orji Uzor Kalu) was represented by a legal practitioner in court, he cannot take advantage of the options available for him in Section 358 of ACJA.
“The examination of the witness must be in accordance with the Evidence Act because it regulates how proceedings should go on in court. If a witness is not cross-examined, his evidence cannot be used in court”, he said.
However, in a Bench ruling, the trial judge, Justice Mohammed Idris held that the first defendant is at liberty to chose from any of the options available under Section 358 of ACJA.
Justice Idris further pointed out that the options in the Section are available to the first defendant whether or not he has legal representation.
After citing the provisions of Section 358 of ACJA, the judge said: “In the circumstances of this case, where a defendant chooses the options under Section 358 (a) of ACJA as the first defendant has done in this case, the first defendant is not giving evidence.
“Making a statement is different from giving evidence. A person who gives evidence from the witness box after been sworn-in can also make a statement from wherever he stands. Both options are available to the defendant in any criminal trial.
“If the first defendant has decided to make a statement only, then he will not be cross-examined. He will only be cross-examined where he choses to give evidence”.
After the ruling, Orji Kalu’s counsel sought for an adjournment for him to decide on the best option to be adopted by his client in putting forward his defence.
Though the EFCC’s prosecution counsel initially opposed to the request, but later agreed after some talks with the defence lawyers.
Thereafter Justice Idris adjourned further hearing in the matter to September 26 and 27, 2018
