By Onyewuchi Ojinnaka
The defence on Monday, lost in its bid to stop the evidence of fifth prosecution witness before a Federal High Court sitting in Lagos, Nigeria in the ongoing fraud trial of embattled former governor of Ekiti State Ayodele Fayose.
In his ruling on an interlocutory summons by the defence challenging the suitability of the fifth witness for the prosecution Mr Johnson Abidakun to give evidence, Justice Chukwujekwu Aneke dismissed the objection on the grounds that it lacked merit.
The defence counsel, Mr Olalekan Ojo (SAN) had asked the court whether having regards to facts contained in the exhibits, PW5 ought to be allowed to give evidence in respect of facts contained in his extra judicial statement of May 17, 2019.
Fayose is being prosecuted by the Economic and Financial Crimes Ccommission (EFCC), over N6.9billion fraud and money laundering charges.
He was first arraigned on October 22. 2018, before Justice Mojisola Olatoregun, alongside his company, Spotless Investment Ltd, on 11 counts bordering on fraud and money laundering offences.
He had pleaded not guilty to the charges and was granted bail on October 24, 2018, in the sum of N50 million with sureties in like sum.
The defendant was subsequently, re-arraigned before Justice Chukwujekwu Aneke, on July 2, 2019, after the case was withdrawn from Olatoregun, following EFCC’s petition.
He had also pleaded not guilty to the charges and was allowed to continue on the earlier bail granted, while the case was adjourned for trial.
The commission has since opened its case, and is still leading witnesses in evidence.
At the last adjourned date in November 2019, prosecution had called a witness, one Johnson Abidakun, who was about to be sworn on oath, when defence raised objection.
Defence had accused the EFCC of “prosecutorial misconduct” on the grounds that they (defence) had studied the proof of evidence of the said witness and had made discoveries.
These discoveries they said, were in relation to an earlier testimony by a 13th witness, one Adewale Aladegbola who had testified before the former judge, (Olatoregun).
But the prosecutor, in a swift reaction, revealed to the court that the said witness referred to, had been “tampered” with by the defence.
TheNiche recalls that the prosecution had called the 13th witness, (Aladegbola), who during the aborted trial before Olatoregun, introduced himself as driver of a bullion van.
Midway into his evidence, the witness strayed away from his line of examination, and began to give contradictory evidences which were unexpected by prosecution.
The testimony of this wintess, was abruptly discontinued by the prosecutor RotimI Jacobs (SAN), who had then sought an adjournment, to decide whether to declare the said witmess, as “hostile”.
But before Justice Aneke, the defence counsel Olalekan Ojo (SAN) argued that although the testimony of the witness was halted by prosecution, he was never declared “hostile” as provided by the Evidence Act.
Ojo argued that prosecution has now sought to call the instant witness (Abidakun) to “cure” the lacuna of that previous witness,. adding that the evidence of the instant witness could only amount to a hearsay.
He described the procedure as a ‘prosecutorial misconduct’, and proceeded to file an interlocutory summons, activating the court’s jurisdiction to give directions on the procedure.
In his ruling on Monday, Justice Aneke first addressed the issue of hear-say as raised by defence and held that the oppositions are matters of fact.
The judge consequently, held that since the trial before his court is a fresh one, he does not “buy” the arguments that the testimony of the witness amounted to a hearsay, adding that counsel was at liberty to call its witness in a manner it chooses.
“Trial before this court started on July 2, 2019; it represents a trial denovo which is a new trial,” he said.
Aneke held that calling the fifth prosecution witness to give evidence, cannot therefore, amount to an abuse of process.
” The defendant/applicant’s motion is hereby dismissed,” he said
After the court’s rulling, the prosecutor, Mr Rotimi Jacobs (SAN) sought an adjournment, on grounds of Ill health, and prayed the court to give further dates for continuation of trial.
Jacobs application was not oppsoed by defence counsel.
The court consequently adjourned the case until March 5 and 6 for continuation of trial.
According to the charge, on June 17, 2014, Fayose and one Abiodun Agbele were said to have taken possession of the sum of N1.2 billion, for purposes of funding his gubernatorial election campaign in Ekiti, which sum they reasonably ought to have known formed part of crime proceeds.
Fayose was further alleged to have received a cash payment in 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.
He was also alleged to have retained the sum of N300 million in his account and took control of the aggregate sums of about N622 million which sum he reasonably ought to have known formed part of crime proceeds.
Fayose was alleged to have procured De Privateer Ltd and Still Earth Ltd, to retain the aggregate sums of N851 million which they reasonably ought to have known formed part of crime proceeds.
Besides, the defendant 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.
He 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.
