By Onyewuchi Ojinnaka
The absence of the fifth prosecution witness for the Economic and Financial Crimes Commission (EFCC), Senator Musiliu Obanikoro on Thursday stalled the continuation of cross- examination in the trial of the immediate past governor of Ekiti State Ayodele Fayose in the alleged N6.9 billion fraud.
Consequently Justice Mojisola Olatoregun who was not amused with the absence of Obanikoro, ordered his attendance in court on March 18, for continuation of his cross examination, failing which the court will make a decision.
Justice Olatoregun made the order at the resumed trial of Fayose, following the absence of Obanikoro, a former Minister of State for Defence, who is under cross examination as fifth prosecution witness.
While stating the position of the court on Obanikoro’s absence, the judge said it was important for the witness to be aware of the seriousness of his civic responsibility and therefore, should endeavour to show up on the next adjourned date.
The judge held that where the witness fails to appear on the next date, the court will have no option but to compel him.
Fayose was arraigned by the Economic and Financial Crimes Commission (EFCC) in October 22, alongside a company Spotless Investment Ltd, on 11 counts charge before a Federal High Court, Lagos Nigeria.
He had pleaded not guilty to the charges, and the court granted him bail in the sum of N50million with one surety in like sum.
On January 21, 2018 prosecution called its fifth witness, Senator Obanikoro, a former Minister of State for Defence.
At the last adjourned date on February 5, Obanikoro was still under cross examination by second defence counsel Mr Olalekan Ojo (SAN), but the court adjourned the case until February 7, for counsel to address it on the admissibility of an extra judicial statement made by a party who is not standing trial.
At the resumed hearing of the case on Thursday, Obanikoro was not available in court and the prosecutor Mr Rotimi Jacobs (SAN) told the court that he had called the witness yesterday to inform him of today’s proceedings but could not reach him.
Jacobs said that he was later informed by a Special Assistant (SA) to the witness, that Obanikoro was on admission in a hospital, and he exhibited a written medical report before the court, evidencing same.
Responding to Jacob’s information,defence counsel Mr Ola Olanipekun (SAN) frowned at the absence of the witness, arguing that if learned counsel had made themselves available in court, then the witness had no right to be absent.
Consequently, Justice Olatoregun directed that Obanikoro be present in court at the next adjourned date, failing which the court may have to compel his attendance.
Meanwhile, in addressing the court on the admissibility of an extra judicial statement made by a party who is not standing trial, Ojo urged the court to admit in evidence, a Certified True Copy (CTC) of a statement made by a former aide to Obanikoro, Mr Justin Erukaa (now late)At the last adjourned date, Ojo had sought to tender the statement from the bar, but the prosecutor raised objection to same, arguing that the statement can only be tendered through its maker.
On Thurday, Ojo argued that the first “litmus test” of admissibility is relevance, urging the court to look at the content of the statement to determine its relevance to the trial or to the fact in issue.
He further argued that both in the oral evidence of the witness and even Erukaa’s, the witness admitted to have sent his aide on several errands, including to collect the sum of $1.601million from a Bureau De Change.
He submitted that this fact depicts the relevance of Erukaa’s statement sought to be tendered from the bar.Citing provisions of Sections 39, 40-50 and 83, of the Evidence Act as well as pages 396 to 397 of the book ” Contemporary Law On Evidence” authored by Jerry Amadi, he urged the court to admit the evidence of Erukaa who he described as “Late””Admissibility is not synonymous with weight; the court can admit the statement in evidence and in the cause of judgement, may choose not to consider same, ” he submitted.
He then urged the court to uphold his argument.Opposing the application, Jacobs reiterated the question for determination “whether the statement of a person not called as a witness can be admissible in evidence,”he submitted that such evidence was not admissible in law as it is a hear-say piece of evidence.
Besides, Jacobs argued that Section 39 of the Evidence Act relied on by defence counsel was not relevant to the fact in issue, but only deals with “Res Gestae” or a dying declaration, adding that defence counsel had not drawn the court’s attention to any provision which makes Section 39 of the Evidence Act applicable.
He said that before such a statement made to a Law Enforcement Agency can be admitted, it must comply with the requirement set out in Section 40 of the Act.
According to Jacobs “the maker of the statement must come out to say it.”
He urged the court to refuse same.After listening to submissions of counsel, Justice Olatoregun adjourned the case until March18 by 12 noon, March 19 and March 20, for continuation of trial.
According to the charge, on June 17, 2014, Fayose and Agbele were said to have taken possession of the sum of N1.2 billion, for purposes of funding his gubernatorial election campaign in Ekiti State, which sum they reasonably ought to have known formed part of crime proceeds.
Fayose was alleged to have received a cash payment of the sum of five million dollars, (about N1.8 billion) from the then Minister of State for Defence, Sen. Musiliu Obanikoro, without going through any financial institution and which sum exceeded the amount allowed by law.
He was also alleged to have retained the sum of N300 million in his Zenith Bank account and took control of the aggregate sums of about N622 million which sum he ought to have known formed part of crime proceeds.
Fayose was alleged to have procured De Privateer Ltd and Still Earth Ltd, to retain in their Zenith and FCMB accounts, the aggregate sums of N851 million which they reasonably ought to have known formed part of crime proceeds.
Besides, the accused was alleged to have used the aggregate sums of about N1.6 billion to acquire properties in Lagos and Abuja, which sums he reasonably ought to have known formed part of crime proceeds.
The accused was also alleged to have used the sum of N200 million, to acquire a property in Abuja, in the name of his elder sister Moji Oladeji, which sum he ought to know also forms crime proceeds.
The offences contravenes the provisions of Sections 15(1), 15 (2), 15 (3), 16(2)(b), 16 (d), and 18 (c) of the Money Laundering Prohibition Act 2011.
