James Omotosho, judge of the Federal High Court in Abuja, has recused himself from the N10 billion money laundering trial of Ali Bello, chief of staff to Usman Ododo, governor of Kogi, following the alleged tampering with an exhibit by the court registrar.
Omotosho announced his decision on Thursday while the case
was scheduled for the adoption of written addresses in Bello and his
co-defendant, Dauda Sulaiman’s no-case submission.
The judge said his decision was based on concerns that
continuing with the case could create perceptions that might undermine
confidence in the judiciary and the administration of justice.
The case, marked FHC/ABJ/CR/550/2022, was filed by the
Economic and Financial Crimes Commission (EFCC) in 2022. Bello and Sulaiman are
facing a 10-count charge over alleged diversion of funds from the Kogi state
government.
On February 5, Nasir Zubairu Onimisi, the court registrar,
admitted in open court that he had tampered with an exhibit which a phone
containing WhatsApp messages relating to transactions connected with the case.
Omotosho said Onimisi had earlier visited his residence and
confessed to tampering with the phone, claiming that he had been promised a
house in Abuja by the defendants.
“When the matter was called at about 10:00am, I played in
open court the recording of the conversation that had taken place in my sitting
room when Nasir came to disclose these facts to me,” the judge said.
He said Onimisi subsequently confirmed the contents of the
recording in open court.
The court then examined the phone and found that its
contents had been tampered with, prompting Omotosho to order the arrest of the
registrar and the defendants for investigation.
The judge also directed the police and the Department of
State Services (DSS) to investigate the matter, including conducting forensic
analysis of the parties’ phones and calls.
On Thursday, Omotosho asked the EFCC about the outcome of
the investigation, seven months after the order was made.
Abbas Muhammed, counsel to the EFCC, said he understood that
the DSS had completed its investigation and submitted its report to the office
of the director of public prosecutions of the federation in the federal
ministry of justice.
He, however, told the court that he was yet to know the
details of the report and promised to obtain further information.
The EFCC had closed its case after calling 17 witnesses,
including Muhammed Abubakar, an investigating officer.
Bello and Sulaiman subsequently filed no-case submissions,
arguing that the prosecution had failed to present sufficient evidence to
warrant their being called upon to enter a defence.
In his ruling on Thursday, Omotosho said “Exhibit N” was
“one of the material pieces of evidence” and a backbone of the prosecution’s
case.
The judge said continuing to preside over the case could put
him in a difficult position when assessing the probative value of Exhibit N in
determining whether the prosecution had established a prima facie case.
“…if I were to continue with the matter to its conclusion,
it might become necessary for the court to ascribe probative value to the said
exhibit,” he said.
“In my ruling in no-case submission to enable the court to
determine if a prima facie case has been established or not, I have considered
what an average person on the street might reasonably think, in the
circumstances of this case, if I were to ascribe no probative value, or only
very low probative value, to the exhibit.
“Such a person may conclude that I was attempting to
minimise or conceal the significance of the alleged tampering of the exhibit.
“On the other hand, if I were to attach substantial
probative value to the exhibit, the same perception of the circumstances may
lead a layman to conclude that I was reacting in annoyance to the events
surrounding the alleged tampering.”
Omotosho also referred to the forfeiture of a property in
Gwarimpa, Abuja, which he said was connected to a related case involving the
defendants.
He said the circumstances could affect how his continued
participation in the trial was perceived by the parties and the public.
“The overriding consideration, in my view, is that justice
must not only be done but must also be seen to be done by a reasonable person
on the street,” the judge said.
He added that any further incident involving the case file
or exhibits could fuel perceptions that could adversely affect public
confidence in the judiciary.
“I, therefore, consider it reasonable, fair and in the
interest of the parties, the administration of justice and society at large
that I recuse myself from further proceedings in this matter,” Omotosho ruled.
He directed that the case file be returned to the chief
judge for reassignment to another judge.
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