A Federal High Court in Lagos, on Thursday, fixed February 17, to rule on an interlocutory summons by defence, challenging the evidence of a prosecution witness in the ongoing trial of a former governor of Ekiti State, Ayodele Fayose.
Defence counsel, Olalekan Ojo, SAN, had asked the court whether having regards to facts contained in its exhibits, PW5 ought to be allowed to give evidence in respect of facts contained in his extra judicial statement of May 2019.
Mr Fayose is being prosecuted by the Economic and Financial Crimes Commission (EFCC) over N6.9billion fraud and money laundering charges.
He was first arraigned on October 22. 2018, before Justice Mojisola Olatotegun, 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The defendant was subsequently, re-arraigned before Justice Chukwujekwu Aneke, on July 2, 2019, after the case was withdrawn from Olatoregun, following EFCC’s petition.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 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.
Recall that the prosecution had called the 13th witness, (Aladegbola), who during the aborted trial before Olatoregun, had introduced himself as driver of a bullion van.
The testimony of this witness, was however, abruptly discontinued by the prosecutor, who had sought an adjournment from the court, to decide on whether to declare the said witness as “hostile.”
Defence, consequently, argued that although the testimony of this witness was halted by prosecutor, he never declared him hostile, but has now sought to call the instant witness (Abidakun) to “cure” the lacuna of that previous witness.
Defence counsel had described this procedure as prosecutorial misconduct, and had proceeded to file an interlocutory summons, activating the court’s jurisdiction to give directions on the procedure.
On Thursday, Mr Ojo brought his application pursuant to relevant statutory provisions, and attached an affidavit, further and better affidavit, a reply, written address, and exhibits A1 and A2.
First, Mr Ojo argued that the deponent of the counter affidavit of prosecution was one Akintunde Olasunkanmi, a litigation officer of the EFCC’, and not the prosecutor Rotimi Jacobs.
He argued that the prosecutor, (Jacobs) could not, therefore, make such averments as contained in paragraph four of the affidavit, since he is not an operative of the EFCC.’
Mr Ojo said, to do otherwise, will amount to hearsay, which deprives the document of any probative value.
He, therefore, described the procedure as being an abuse of court process, and urged the court to so hold.
In his responses, Adeniyi Adebisi, who appeared for prosecution, urged the court to dismiss the application with substantial cost against the defence.
He argued mainly that the proceedings before the former judge (Olatoregun) had been discontinued and that trial had begun afresh.
Besides, he argued that prosecution reserves the right to amend its document.
“My Lord, this is a strange application, whatever happened before your learned brother judge is gone and this matter has begun de novo,” he said
He urged the court to dismiss the application in its entirety and award costs against the defence.
Mr Aneke has now reserved ruling until February 17, after which trial will continue.
During trial before Mr Olatoregun. the prosecution had called witnesses from several commercial banks as well as a former Minister of State for Defence, Musiliu Obanikoro.
According to the charge, on June 17, 2014, Mr 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.
Mr Fayose was alleged to have received a cash payment of the sum of five million dollars, (about N1.8 billion) from Mr Obanikoro, who was the Minister of State for Defence 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.
Mr Fayose was alleged to have procured De Privateer Ltd and Still Earth Ltd, to retain the aggregate sum 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 sum 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 offence, the anti-graft agency said, contravened 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.