As prosecution continues to press with its case against Senator Mohammed Ndume, the embattled Senator is banking on a discrepancy in the International Mobile Equipment Identity (IMEI) number of a mobile phone, which allegedly belonged to him that was different from the digits a prosecution witness gave in his earlier testimony, writes Tobi Soniyi who has been following the case...
The witness, a forensic examiner with the State Security Services had told the court that the last four digits of the Nokia E7 ended with 3050, but when asked to read out the IMEI, the witness said the last four digits were 3055.
This discrepancy, minor as it appeared, may, however, put the identity of the handset in issue.
The witness had earlier told the court that there were 73 communications between the Nokia E7 with the IMEI 3050, which allegedly belonged to Ndume, and the convicted spokesperson of the Boko Haram sect, Ali Sanda Umar Konduga, who allegedly owned the Nokia 2700, which had 9226 as the last four digits of its IMEI.
The witness had said that in the course of analysing the two mobile phones given to him, it was discovered that the duo had exchanged text messages, multi-media messages and placed voice calls between October 3, 2011 and November 3, 2011.
He said a report of the findings as well as the call data records were burnt in three DVDs. The DVDS were tendered and admitted in court as exhibits as the court rejected the objection to their admissibility by Ndume's lawyer, Rickey Tarfa (SAN).
Admissibility of DVDs
Tarfa had objected to the admissibility of the DVDs on the basis of non-compliance with the Evidence Act, particularly Sections 84 (1) and 102, which provide for the certification of public documents made by public officials. He had also observed that the DVDs were computer generated secondary evidence and not the original copies. Citing Section 84 of the Evidence Act, Tarfa argued that for the materials to be admitted in evidence, that the Act provided that a statement must be prepared to authenticate the veracity of such material and pointed out that there is no such statement accompanying the DVDs, which the prosecution wants the court to admit in evidence.
According to the Senior Advocate of Nigeria, "the absence of any statement showing that these copies are original and authenticated copies makes them inadmissible. There ought to be an explanation about the unavailability of the original copies as what is sought to be tendered are secondary evidence. There is also no foundation as to why secondary evidence is being sought to be tendered."
However, the trial judge, Justice Gabriel Kolawole, while ruling on the admissibility of the DVDs noted that viewing or listening to the contents of the DVDs would serve the court no purpose if they were not admitted in evidence.
He also disagreed with Ndume's lawyer that the materials were public documents as they were not such that could be accessed by any member of the public.
According to the court, "exhibits P5 and P5 (A), which are the handsets confiscated from Senator Ndume and convicted former spokesman of Boko Haram sect, are the real and primary exhibits whose contents were downloaded in the 3 DVDs, they are not public documents and do not require certification, more so when the maker of the material is here before the court giving testimony as prosecution witness 3."
Furthermore, the court noted that there was no dispute that the maker of the 3 DVDs was the PW 3 who generated them using tool kits in the exercise of forensic investigations.
The court held that the testimony of the witness was sufficient proof of the authenticity of the material.
"I see no merit in the opposition of the defence in the admissibility of the DVDs, it serves the interest to admit them in evidence as exhibits in this trial so as to avoid a disconnection with the primary evidence already admitted as exhibits."
The 3 DVDs contain details communication between the senator and the convicted former spokesman of the dreaded Boko Haram sect.
Ndume is charged with receiving information on or about October 4 from convicted Boko Haram spokesman Ali Sanda Umar Konduga regarding planned attacks on judges of the Borno State Election Tribunal and the National Assembly, but failed to disclose the information to a law enforcement officer as soon as reasonably practicable.
The offence is contrary to Section 7(1) (b) of the Terrorism Prevention Act 2011, and attracts a 15-year jail term. Ndume is also accused of providing telephone numbers of certain public officers, including the Attorney-General of the Federation, Mohammed Bello Adoke (SAN) on or about October 4, to Konduga for the purpose of communicating terrorist messages to the said persons. The offence attracts a 20-year jail term under the anti-terrorism law.
He is alleged to have been in possession of Konduga's mobile phone number but failed to disclose it to a law officer as soon as reasonably practicable, knowing that it will be of material assistance in arresting Konduga, contrary to Section 7(1) (b) of the Terrorism Prevention Act 2011, and punishable with 10 years in jail.
He had pleaded not guilty to all the four counts and had been granted bail.
In his defence, Ndume has consistently denied having anything to do with the jailed acclaimed former Boko Haram spokesman. He said that his first contact with the suspect was in the SSS custody where the suspect allegedly confessed in Ndume's presence that his contact with the senator was a threat message he (convict) sent to the senator sometimes ago. He never confirmed receiving a dime from Ndume for terrorist activities.
Ndume's travails began on 22nd November, 2011, when he was hurriedly arraigned before an Abuja Magistrate Court sitting at Wuse Zone 2 for felony and breach of trust for disclosing a classified document.
But, on Tuesday, 13th December, 2011 he was again taken to the Federal High Court in Abuja where he was charged with four counts of concealing information on attacks being planned by the Boko Haram sect, offences which attract up to 20 years imprisonment under the Anti-Terrorism Act.
However, beginning from the first day he was arraigned in court, it had been one adjournment or the other at the instance of the prosecution, a development, which put to question the preparedness of the state to prosecute the alleged offender.
After Ndume pleaded not guilty, the prosecutor, Mrs. Olufumilayo Fatunde, asked for an adjournment to enable prosecution file additional proof of evidence in support of the charges. She said evidence was still being collected. She also asked that Ndume be returned to custody of the State Security Services (SSS). The court obliged her and adjourned the case.
On Thursday February 10, 2012 when the case came up for trial, the prosecutor was absent but her representative again asked for an adjournment. This request irked the trial judge, Justice Gabriel Kolawole, who threatened to throw out the case unless the prosecutor shows seriousness and diligence in prosecuting the case.
He berated the prosecutor for frequently requesting for adjournment. Suffice to point out that at the last hearing in the case on December 19th, 2011 Justice Kolawole had made an order for accelerated hearing and adjourned the matter to February 2 and 7 and 14, 2012 for trial.
Piqued by this frequent request for adjournment, Justice Kolawole had threatened to dismiss the charges and discharge the accused person if the prosecution was not prepared. He said: "Tell the Director of Public Prosecution (DPP) that if she is not ready I will discharge the suspect and that will be the end of the matter.
"If the state is not ready to prosecute the accused person, withdraw the charges and go to another place."
His Lordship observed that the government was always eager to arraign suspects in high profile criminal cases, but becomes reluctant in the trial proper.
Kolawole said: "In view of the background of the last adjourned date, this will be an anti-climax. The national assignment, which she is going to, or has gone for, was not even disclosed to our office.
"I am still wondering which other national assignment can actually prevent her presence in this court today. The case had earlier, with her consent, been adjourned to today and 7th February 2012, for trial. I have always expressed my displeasure with regard to applications for adjournment of criminal cases.
"A trend one has noticed from the bench is that the state is always so anxious, perhaps too nervous, to arraign accused persons in high profile criminal cases such as this with a lot of media blitz, but when it gets to the nitty gritty of the real trial, the excitement and eagerness wanes.
"I have made the point to Mr. Osagie that this court is so flooded with many cases that is has no time, resources or energy, to spare for cases that are not to be prosecuted immediately.
"I must warn that applications for adjournment would be seriously refused, because I cannot, on one hand, grant accelerated hearing of the trial, and on the other be disposed to indulging a party, the prosecution in particular, with needless and avoidable adjournments.
"I hope the remarks I have raised in this issue is well taken by all the parties, and the prosecution in particular."
It appears that the trial judge's admonition had worked. This is because the prosecution had improved on its performance and shown more commitment to concluding the case on time. Justice Kolawale adjourned till January 16, 2013 for continuation of trial.