Former Group Managing Director (GMD), Nigerian National Petroleum Corporation (NNPC), Andrew Yakubu, on Wednesday, told the Economic and Financial Crimes Commission (EFCC) that it could not cross-examine him based on a previous case in another court.
Yakubu, who stated this through his lawyer, Ahmed Raji, SAN, before Justice Ahmed Mohammed of the Federal High Court, Abuja, said Exhibit J, which the EFCC’s lawyer, Mohammed Abubakar, planned to take him on was irrelevant to the case at hand.
Exhibit J borders on a case which was instituted by the anti-graft agency in 2016 before Justice Nnamdi Dimgba when Yakubu was GMD of NNPC.
The case, which is still ongoing involves an oil company, Atlantic Energy Brass Development Ltd., in which Yakubu was initially the 7th defendant in the suit and was later dropped to become the first prosecution witness in the matter bordering on illegal lifting of crude oil.
The EFCC had, in 2017, raided the residence of the ex-NNPC boss in Kaduna State and found 9,772, 800 dollars and 74,000 pounds (9.7 million dollars and 74,000 pounds) in a safe.
Yakubu was, however, arraigned on March 16, 2017 on six counts but was ordered by the Court of Appeal to defend counts 3 and 4 which bordered on failure to make full disclosure of assets, receiving cash without going through a financial institution and intent to avoid a lawful transaction in alleged violation of Section 1(1) of the Money Laundering Act, 2011 and punishable under Section 16(2)(b) of the Act.
At the resumed trial on Wednesday, Abubakar told the court that the matter was for the continuation of the motion raised in respect of the cross-examination of the first defence witness (DW1 who is Yakubu)) relating to Exhibit J.
“It is very clear that the exhibit is relevant to counts 3 and 4. We further submit that the same Exhibit J is also relevant to some matters which DW1 has testified about both in evidence-in-chief and under cross-examination.
“We, therefore, rely on the provision of Section 7 Paragraph a, b, c, d and e in submitting that Exhibit J is relevant.
“It is our further humble submission that Exhibit J is relevant in proving whether or not there has been a predicate offence to counts 3 and 4,” he said.
According to the EFCC’s lawyer, it is instructive to note that the defendant had argued before this court and Court of Appeal and he is present arguing before the Supreme Court in his own appeal against the judgment of the Court of Appeal ordering him to enter a defence in respect of counts 3 and 4 to the effect that the prosecution must prove predicate offence in order to establish offences in counts 3 and 4.
He, therefore, submitted that Exhibit J would assist the commission in proving the predicate offences.
“However, since the Supreme Court is yet to decide this issue, one way or the other, we submit that they cannot forgo our right in disproving that fact,” he said.
Abubakar further argued that the exhibit would help in proving that the defendant had obtained an increase in his pecuniary resources for which he cannot satisfactorily account for.
“This is because we are allowed under Section 19(5) of the EFCC Act 2004 in conjunction with Section 6(a), 7(2a) and 42(e) of the same EFCC Act 2004 to adduce such evidence in prove of counts 3 and 4,” he said.
He said in the whole 56 pages of the lead judgment, and the respective two more pages of the contributory judgments, the Court of Appeal did not say Exhibit J was not relevant to counts 3 and 4.
“We, therefore, urge your lordship to discountenance that argument from the learned senior counsel of the defendant.
“Finally, we submit that the judicial authority of Ishelo Vs. Julius Berger reported in 2008, Volume 6, Nigeria Weekly Law Report, relied upon by the senior counsel is inapplicable here for two reasons.
“Firstly, that authority is a civil case and talks about biddings.
“Secondly, Exhibit J was tendered by the defendant who has not filed any defence.
“Not only because the authority is a civil case but also because it is a different subject matter.
“We urge you to discountenance the objection raised by the defendant and allow us to continue our cross-examination of DW1 on the context of Exhibit J,” Abubakar told the court.
Responding, Raji disagreed with Abubakar on the authority cited, saying “Section 6, 7 and 8 of the Evidence Act do not draw any distinction between civil and criminal matters.”
He said though “there are sections in Evidence Act that are peculiar to either civil or criminal matters like Section 206,” Raji argued that Section 6, 7 and 8 had no distinction as to whether a case is civil or criminal.
The lawyer said since the Court of Appeal struck out counts 1 and 2 in the suit in respect of which Exhibit J was tendered implied that the exhibit was irrelevant in the present circumstance.
Raji questioned that of what relevance was the allegation by Abubakar that the former GMD received an increased pecuniary resources he could not satisfactorily account for to counts 3 and 4.
“This will be contrary to the Court of Appeal judgment,” he said.
The lawyer, who argued that it was wrong for Abubakar to want to prove whether there had been predicate offences or not through Exhibit J, said: “there is a distinction between a predicate offence and offence charged.
“The evidence they want to establish under cross-examination through the Exhibit J is to prove the alleged predicate offence by his own admission. With this point alone, I want my lord to sustain our argument.”
He told the court that since the Appeal Court judgment did not say that counts 3 and 4 had anything to do with Yakubu’s source of money showed that the exhibit was “totally irrelevant and anti-Court of Appeal judgment.”
“I urgent my lord to sustain our objection,” he said.
Justice Mohammed, after listening to parties adjourned the matter until October 15 for ruling on the motion and for trial continuation.