Justice Rita Ofili-Ajumogobia of the Federal High Court in Lagos directed yesterday a former Aviation Minister, Chief Femi Fani-Kayode, to defend two of the 40-count money laundering charges brought against him by the Economic and Financial Crimes Commission (EFCC).
The judge held that the commission did not prove the other counts sufficiently and partially upheld Fani-Kayode’s no-case submission.
She discharged and acquitted him of the rest of the 38 counts on the grounds that the prosecution failed to prove “elements” of the allegations.
Fani-Kayode will open his defence on counts 25 and 26.
Count 25 reads: “That you, Chief Femi Fani-Kayode, on or before September 20, 2006, while serving as the Minister of Culture and Tourism, in Lagos within the jurisdiction of this court, made a transaction exceeding N500,000, which was not done through financial institution, by accepting cash payment of N1 million, which sum was further paid into your personal account number 103450252601 with First Inland Bank Plc, Apapa branch, now First City Monument Bank (FCMB), through Supo Agbaje, your administrative worker, now at large.”
Count 26 reads: “That you, Chief Femi Fani-Kayode, on or before September 20, 2006, while serving as the Minister of Culture and Tourism in Lagos within the jurisdiction of this court, made a transaction exceeding N500,000, which was not done through financial institution, by accepting cash payment of N1.1 million, which sum was further paid into your personal account number 103450252601 with First Inland Bank Plc Apapa branch, now FCMB, through Supo Agbaje, your administrative worker, now at large.”
The alleged offences contravene the provisions of the Money Laundering (prohibition) Act, 2004.
Justice Ofili-Ajumogobia held that from the wordings of the 40-count charge, they were set out in two formats, with the essential elements being that Fani-Kayode received cash exceeding N500,000 without going through a financial institution.
“For ease of reference, I shall set out counts one and 33 only, being prototype of the two species of the counts; the distinction however, is for the basis of convenience. In one format, the accused was alleged to have paid the amount into his account, while in the other, he was alleged to have paid it into the account of a third party.
“I find that there was an acceptance of cash payment of an amount exceeding N500,000 by the applicant, which was not done through a financial institution, and also, a payment at the behest of the applicant.
“This distinction pales into insignificance when one considers the elements of each count. The first element would have been satisfied if the prosecution led evidence to show that cash sums exceeding the statutory threshold were handed to a specified third party, which was further transmitted to a financial system.
“The second element is discharged where the prosecution leads evidence to show that the said transmission was at the behest of the applicant. It will be immaterial in my view whether the monies were paid into the account of the accused or a third party.
“Only PW4 and PW5 gave evidence about payment; the testimony of PW5 in particular was in respect of counts 21, 23 and 31, and on the application of prosecution, PW5 was declared a hostile witness.
“It is not in doubt that the oral and written submissions of PW5 are contradictory and inconsistent and no reasonable tribunal is expected to convict on such testimony. The natural implication, therefore, is that no evidence exists before this court to establish counts 21, 23 and 25.
EFCC opened its case on March 10 and closed it on July 10 after calling six witnesses.
Fani-Kayode filed a no-case submission on August 5. A no case answer is a term whereby a defendant seeks acquittal without having to present a defence.
“The prosecution called six witnesses, and of all these witnesses, none of them came forward to give any evidence that they had any financial transaction with the accused,” the lawyer said.
EFCC’s lawyer, Festus Keyamo, said the prosecution made out a case for Fani-Kayode to open his defence.
“Without wasting the time of this court, I will only correct one notion, and that is that the prosecution’s case does not concern bank lodgment, but transactions which took place before the lodgment.
“It’s about transactions, which are done without going through financial institutions, which come under the definition of money laundering,” Keyamo said.
Fani-Kayode was tried on amended 40-count charges of money laundering.
The former minister was said to have laundered about N100,219,500 by paying them into his account through an associate.
For instance, EFCC said on or about November 22, 2006, Fani-Kayode made a financial transaction exceeding N500,000, which was not done through a financial institution.
It said he accepted cash payment of N10 million, which was carried in cash to First Inland Bank, Plc, Apapa branch (now First City Monument Bank Plc) through his close associate, Mark Saviour Ndifreke, said to be at large.
The money, EFCC alleged, was put into Fani-Kayode’s investment account for 90 days, an offence contrary to Section 15(1)(d) and punishable under Section 15(2)(b) of the Money Laundering (Prohibition) Act, 2004.”
Other counts stated that he carried out some of the transactions exceeding N500,000 while also serving as the Minister of Culture and Tourism. Ndifreke was also said to have helped him pay the money into his account.
He allegedly committed the offences between August 2006 and May 2007.
One of the counts stated that on December 5, 2006, while as the Aviation Minister, he accepted cash payment of N2.1million, which was paid into his personal account numbered 103450252601 with First Inland Bank Plc (now First City Monument Bank).
Fani-Kayode pleaded not guilty to the counts.
One of the counts reads: “That you Chief Femi Fani-Kayode, on or about November 22, 2006, while serving as the Minister of Aviation in Lagos, within the jurisdiction of this court, made a financial transaction exceeding N500, 000, which was not done through financial institution by accepting cash payment of N10 million, which sum further carried in cash to First Inland Bank Plc, Apapa branch (now First City Monument Bank PLC.), through Saviour Ndifreke, (your close associate now at large), and put in an investment account in your favour for 90 days, contrary to Section 15 (1) (d) and punishable under Section 15 (2) (b) of the Money Laundry Prohibition Act, 2004.”
Fani-Kayode was first arraigned in December 2008 before Justice Ramat Mohammed on a 47-count charge.
He was re-arraigned before Justice Binta Murtala-Nyako following the transfer of Mohammed from the Lagos Division.
The accused was again re-arraigned before Justice Ofili-Ajumogobia on February 11 last year after Murtala-Nyako was transferred.
Following an amendment of the charges from 47 to 40, Fani-Kayode took a fresh plea before Justice Ofili-Ajumogobia on March 6.
Justice Ofili-Ajumogobia adjourned till December 8 for continuation of trial.