A Federal High Court in Lagos thursday held that a legal practitioner could testify as a prosecution witness in the ongoing trial of a former Governor of Abia State, Orji Uzor Kalu.
Justice Mohammed Idris gave the ruling while deciding an objection by the law firm of Ekwem and Ekwem, challenging a witness summons on it, to give evidence in the case.
The Economic and Financial Crimes Commission (EFCC) had on October 31, 2016 preferred 34-count charge bordering on N3.2 billion fraud against Kalu and his former Commissioner for Finance, Ude Udeogo.
Also charged is a company said to belong to Kalu, Slok Nigeria Ltd.
The accused had pleaded not guilty to the charges and were granted bail.
At the last adjourned date on January 23, 2017, a lawyer, Mr Kingsley Ekwem, had informed the court that he was issued a witness summons to appear in court and give evidence in relation to a letter before the court (exhibit H), as regards the third accused (Slok Nigeria Ltd), who is client to his firm.
He had argued that by the provisions of section 192 of the Evidence Act, a legal practitioner is not expected 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 had also added that rule 19 (1) of the Rules of Professional Conduct for Legal Practitioners, provides that communication 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 the client.
Other defence counsel had also made similar submissions before the court, arguing that a lawyer cannot be made to give evidence on information obtained in the course of his professional duty.
Meanwhile, the prosecutor, Mr. Rotimi Jacobs (SAN), had argued that the proviso to section 192 (1) of the Evidence Act provides that nothing shall prevent the disclosure of any fact suggestive of a crime.
Delivering a ruling on the arguments on Thursday, Justice Idris held that although a lawyer is generally not expected to disclose privileged information, the document in question is already in the public domain.
“Where the document is already in the public domain, the witness can be called upon to testify and the provisions of section 192 of the evidence act will not apply.
“The objection of the applicant is hereby dismiss, and the witness can be called upon to give evidence,” he said
After the ruling, the witness then mounted the witness box and was led in evidence.
In a brief examination, the prosecutor asked the witness where the document (exhibit H) emanated from, and to whom it was written.
The witness replied that the document emanated from the law firm of Ekwem and Ekwem, and it was written to Slok Nigeria Limited (third accused).
On the relationship between his law firm and the third accused, the witness said that the relationship was a lawyer-client relationship, adding that the letter was also written in that capacity.
During cross examination, the first defence counsel, Mr. Awa Kalu (SAN), asked that the witness be shown exhibit F75 and further asked him to tell the court about the exhibit.
This line of cross-examination was opposed by the prosecutor, who argued that the witness cannot be asked to give evidence on a document which did no emanate from his chambers.
After hearing arguments from counsel on both sides for and against the line of cross examination, the court adjourned until February 2 for ruling and continuation of trial.
In the charge, the accused were alleged to have committed the offence between August 2001 and October 2005.
Kalu was alleged to have utilised his company to retain in the account of a First Inland bank, now FCMB, the sum of N200 million.
The sum is alleged to have formed part of funds illegally derived from the coffers of the Abia State Government.
In one of the counts, the third accused (Slok Nigeria Ltd) and one 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.
In counts one to 10, the accused were alleged to have retained about N2.5 billion in different accounts, which funds were said to belong to the Abia State government.
Cumulatively, in all the counts, the accused were alleged to have diverted over N3.2 billion from the Abia State government’s treasury during Kalu’s tenure as governor.
The offence is said to have contravened the provisions of sections 15(6), 16, and 21 of the Money Laundering (Prohibition) Act, 2005.
It is also said to have 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.