Agba Jalingo (with hands raised), currently undergoing trial for terrorism and treasonable felony.

The trial of Mr. Agba Jalingo, a Nigerian journalist charged with terrorism, treasonable felony and attempt to topple the Cross River State government took a different turn on Wednesday as his lawyers filed an application seeking to modify the order of the Court which granted leave to the prosecution to mask its witnesses.

Justice Simon Amobeda of the Calabar division of the Federal High Court had on October 23rd in a ruling that received widespread condemnation granted the request of the prosecution to hide the identity of the seven witnesses listed to testify against Mr. Jalingo.

And, on Wednesday after the case with suit number FHC/CA/59C/2019 was called up, counsel to Mr. Jalingo, Adeyinka Olumide-Fusika, a Senior Advocate of Nigeria called the attention of the Court to the application filed by the defense.

When he was granted leave to continue, Fusika said that the defense was relying on the ruling of the Court which said the terms can be modified from time to time. 

In his argument, Fusika submitted that, “in making that pronouncement, the proof of evidence which is before your lordship shows that the identity and location of witnesses number 1 to 6 are incapable of being hidden considering that they are materials already on the proof of evidence.” 

He said the allegation that someone threatened should not have been heard as there was no way a witness not known to the defense could have been threatened. The prosecution had claimed that a witness was threatened on August 28, 2019; six days into the detention of Mr. Jalingo. But, the charges were filed on August 30th, a situation which Fusika argued was not possible. 

He further submitted that since the prosecution had included that in their motion, “confirms that whatever mischief is intended to be prevented is already compromised by what the prosecution filed.”

He asked the Court to, “therefore, use that as a basis for the order of the protection of witnesses to be reviewed especially as it is part of the process of fair hearing which is constitutionally guaranteed to the defendant.”

However, the prosecution counsel, Mr. Dennis Tarhemba objected to the application relying on section 232 subsection 2 of the Administration of Criminal Justice Act. He challenged the jurisdiction of the Court to entertain the application.

Tarhemba, a Deputy Superintendent of Police relied on a 13 paragraph affidavit deposed to by one Inspector Igezuo Ibe of the Cross River Police command and a written address as part of his arguments on points of law. He said the provisions were sui generis.

He submitted that the defense cannot say that it knows the witnesses when in its further counter affidavit dated October 22, 2019 in response to a further affidavit by the prosecution on the motion to mask witnesses, it said it had no knowledge of the witnesses. 

He urged the Court to dismiss the application of the defendant as well as award a NGN100,000 (USD276) as cost of transportation for the seven witnesses who had arrived in Court as the prosecution was ready to proceed.

However, Fusika quickly objected pointing out that the counsel to the prosecution had said only two witnesses were in Court when the matter was called and appearances announced. He wondered why the list suddenly increased to seven.

In his ruling, Justice Amobeda adjourned to the 12th and 21st of November 2019 for the ruling on the application and continuation of trial.

This means Mr. Jalingo who was recently listed in the #OneFreePressCoalition “10 Most Urgent Cases Of Injustice Against Journalists,” remains remanded in the custody of the Nigerian Correctional Services where he has spent 41 days so far.

He arrived the Court premises in handcuffs in a green colored van marked “Calabar Prisons.” Decked in blue jeans, black sporting shoes and an oxblood colored shirt with the inscription “Journalism is not a crime,” Jalingo who was accompanied by two armed and two unarmed correctional officers was welcomed by Jonathan Ugbal, another journalist facing trial over #RevolutionNow. 

Jonathan handed him a green colored muffler with the inscriptions; “I love Nigeria” and “Great Nigeria” on either side of the muffler. He was then released from the cuffs before proceeding to the Courtroom.

One of Mr. Jalingo’s solicitors, Attah Ochinke, a former Attorney General and Justice Commissioner in Cross River State told journalists after the Court session that they felt “very uncomfortable” about the masking of witnesses especially as, “the constitution of Nigeria guarantees Agba Jalingo a free and fair trial in an open court.”

Describing the alleged threat of prosecution witnesses as “dramatic,” Ochinke averred that; “the prosecution himself has already disclosed the name and identities of their various witnesses in the various court processes they filed.“

He continued: “The prosecution said they have seven witnesses and they have named six of them in the proof of evidence and have filed their statement where they disclosed the identities of those witnesses. Only one of the prosecution witnesses has his identity hidden and by that one person, we are ready to abide by the court order that his identity should be hidden. “

But, Tarhemba stressed that by virtue of section 232 of the ACJA as well as sections 33 and 34 of the terrorism prevention and amendment act 2013, the Court had done due diligence in granting his application to “protect witnesses.”

"We (prosecution) are saying that, the Court order stands... and the Court cannot revisit any matter as per the provisions of section 232 of the administration of criminal justice Act 2015, which was interpreted by the Court of Appeal in Nigeria that it is not inconsistent with section 36 subsections 4 of the constitution of the Federal Republic of Nigeria.

“The Court acted within the law and that is the simple thing. We are now arguing that the court acted within the law and that decision will stand,” Tarhemba said.

Timeline Of Jalingo’s Arrest, Incarceration And Trial

Mr. Jalingo had in July, published an article where he demanded the Cross River State government comes clean on the whereabouts of the NGN500 million approved and released for the floating of the Cross River Microfinance bank.

In August he was invited by the Cross River State Police command for an interview based on a petition against him bordering on his article.

The interview was first slated for August 19, 2019. It was later rescheduled for August 26th and September 3, 2019. Mr. Jalingo went public with his decision to honor the invitation.

However, he was arrested in a gestapo styled operation by Police officers in his Lagos residence on August 22, 2019. He was then driven by road to Calabar, the Cross River capital where he arrived on August 24, 2019.

He was detained for 32 more days at a police black site facility with limited access to him until his arraignment on September 25, 2019 for the hearing of his bail.

The bail hearing suffered adjournments on September 26th and October 2nd. And, on October 4th, the court in its ruling denied granting him bail. The matter was then adjourned until October 16th and 17th for commencement of trial.

The trial suffered another adjournment on October 22nd before the Court ruled on the application of the prosecution, granting it leave to protect its witnesses on the 23rd of October.

The matter was later adjourned to October 30th when Mr. Jalingo was read his amended charges. He pleaded “not guilty” to all four charges preferred against him. An oral application for bail by his counsel was also denied in the heated Court session which saw Justice Amobeda suspend hearing of the matter twice. In his ruling, Justice Amobeda adjourned to November 5th and 6th.

The Cross River State government has been fingered as the architect of his travails, an allegation the State has continuously denied and accused Time Newspapers of practicing “Gutter Journalism” after it published the list of the #OneFreePressCoalition “10 Most Urgent Cases Of Injustice Against Journalists.”

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