Justice James Omotosho of the Federal High Court in Abuja on Thursday recused himself from the N10 billion money laundering charge against Ali Bello, a nephew of the immediate past Governor of Kogi State, Yahaya Bello.
The trial judge based his decision on the alleged tampering with a vital proof of evidence in the matter.
Bello is answering to a 10-count charge that the Economic and Financial Crimes Commission (EFCC) preferred against him and his alleged accomplice, Dauda Sulaiman.
The court had on February 5 ordered both the Department of State Services (DSS) and the Nigeria Police Force (NPF) to investigate one of its registrars who allegedly colluded with the defendants to tamper with an exhibit it had already admitted in evidence.
Justice Omotosho had directed the security agencies to investigate the court’s registrar, Nasiru Onimisi Zubairu, as well as the 2nd defendant, Sulaiman, for allegedly tampering with the exhibits marked N and O.
The EFCC had on June 2 closed its case with the evidence of 17 witnesses who testified before the court.
The defendants, for their part, applied to file a no-case submission, insisting that the totality of the evidence the anti-graft agency adduced before the court failed to establish a prima facie case to require them to open their defence to the charge.
The case was fixed for Thursday for the defendants to adopt their no-case submission.
However, at the resumed proceedings, trial Justice Omotosho announced his decision to withdraw from the matter, citing the unresolved issue of the alleged tampering with evidence.
The court noted that the security agencies had yet to tender their investigative report about seven months after the issue came to light.
Describing the tampered evidence as very vital to the case, Justice Omotosho said the court had to rely on it to arrive at a decision on the defendants’ insistence that they had no case to answer.
The judge said his decision, one way or the other, could lead to insinuations of bias against him, especially in view of the tampered evidence.
He therefore held that it was in the best interest of justice for him to recuse himself from the trial and return the case file to the Chief Judge for reassignment.
It will be recalled that the judge had disclosed that the court’s registrar confessed to him that the 2nd defendant, Sulaiman, had approached him to use a code to wipe out incriminating WhatsApp messages contained in the defendant’s mobile handset, which had been tendered in evidence.
The judge went ahead and played the registrar’s recorded confession in open court.
According to Justice Omotosho, his decision to escalate the matter to the parties was in line with a directive from the Chief Judge, who, he said, warned that judges must disclose such a thing as early as possible.
“We have zero tolerance for this kind of attitude. The person involved is here. I will call him so that you will hear it from the horse’s mouth,” he added.
At this juncture, the registrar was summoned to stand before the court and narrate what transpired between him and the defendant.
Zubairu went ahead to tell the court how he was approached by the 2nd defendant. He said that after the defendant met him and asked what he wanted, he told Sulaiman he was facing an accommodation challenge.
“He then asked me to delete some information, some WhatsApp messages in the exhibits, and promised to give me a house,” the registrar added.
The trial judge also allowed the prosecution counsel, Rotimi Oyedepo, SAN, to direct the Investigation Officer, Muhammed Audu Abubakar, an operative of the EFCC, to confirm to the court whether some messages had indeed been deleted from the phone.
Upon close observation, Abubakar, who is a witness in the matter, told the court that information contained in Exhibits N and O, including chats on several dates from 2020 to 2022, had been deleted.
When the registrar was asked to tell the court the specific messages he deleted, he replied that he could not remember, adding that he knew he had opened only two chats.
To establish that the evidence had indeed been tampered with, the prosecution counsel told the witness to go through Exhibit N, particularly the conversation involving the Director General, Kogi State Government House.
Responding, the witness told the court that WhatsApp messages exchanged between December 3, 2020 and December 28, 2020 had been deleted.
“There was no chat on 23 December; it stopped on December 22 and continued on 29 December, 2020,” the witness confirmed.
Asked to check page 196 of the exhibit, which contained messages recorded on January 13, 2021, the witness informed the court that the only chat remaining there was “Abdurasheed will bring it to Abuja now.”
He also confirmed that a message recorded on January 22, 2021, which read “Hudu will bring it now,” had been deleted.
“There is nothing here on the phone; it has been deleted. What we have on 27th January is ‘Hudu is bringing it’, and it has been deleted,” the witness added.
The prosecution witness insisted that he had come across all the deleted messages while investigating the alleged fraud.
He further told the court that one of the WhatsApp text exchanges, which took place on January 26, 2021 and read “Hudu is bringing N100million,” had also been deleted.
Other deleted messages included a text on January 30, 2021, which read: “N60m is on transit from Friday… they are on their way coming,” and another that read: “Hudu is on his way to Abuja… he is also coming with N30m.”
Another message recorded on August 30, 2021, which read: “Mr Ododo has collected N50m and will be coming tomorrow to Abuja,” was also deleted.
Furthermore, the witness confirmed that although page 296 of the extracts from the phone showed a message that read “Hudu is on his way, coming with N93m, N7m for TJ and for 2 Jan 2022,” he could no longer find it on the phone.
Asked by the prosecution counsel to check page 297 of the extracts and confirm a message on February 28, 2022, which made reference to one Rabiu, the witness replied, “It is not here, my Lord. It has also been deleted.”
The EFCC witness went through other chat records and confirmed that vital information contained in the exhibit (the phone) had indeed been deleted.
Reacting to the deleted messages, the prosecution counsel demanded a thorough investigation.
“My Lord, there is a very urgent and irresistible suspicion that Exhibit N, which contains crucial evidence, has been tampered with. We apply that Your Lordship grant an order revoking the bail of the defendant and also order a forensic investigation of Exhibit N,” Oyedepo, SAN, submitted.
The defence lawyers expressed shock at the development and urged the court to await the outcome of a forensic investigation of the matter.
In the charge marked FHC/ABJ/CR/550/2022, the EFCC alleged that Bello and Sulaiman fraudulently withdrew N10,270,556,800 (Ten Billion, Two Hundred and Seventy Million, Five Hundred and Fifty-Six Thousand, Eight Hundred Naira) from the Kogi State treasury and delivered it to a Bureau de Change operator, Rabiu Tafada, in Abuja to keep or change into foreign currencies for personal gain.
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