A Federal High Court in Lagos on Thursday ordered Musiliu Obanikoro, a former minister of state for defence, to appear in court on March 18 saying he would be compelled if he failed to obey.
Obanikoro’s appearance would be for the continuation of his cross examination in the trial of the immediate past Governor of Ekiti, Ayodele Fayose who is facing charges of N6.9bn fraud.
Judge Mojisola Olatoregun made the order at the resumed trial of Fayose, following the absence of Obanikoro, the former Minister of State for Defence.
Obanikoro has been under cross examination as the fifth prosecution witness.
The court said it was important for the witness (Obanikoro) to be aware of the seriousness of his civic responsibility.
It, therefore, implored him to 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 alongside a company, Spotless Investment Ltd., was arraigned before Justice Olatoregun by The Economic and Financial Crimes Commission (EFCC) on 11 counts on October 22, 2018.
He had pleaded not guilty to the charges, and the court had granted him bail in the sum of N50m with one surety in like sum.
The EFCC opened its case for the prosecution on November 19, 2018 and called four witnesses.
On January 21, 2019, the prosecution called its fifth witness, Obanikoro, a former Minister of State for Defence.
On February 5, which was the last adjourned date, Obanikoro was still under cross examination by the second defence counsel, Olalekan Ojo (SAN).
However, the court had to adjourn 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.
The prosecutor, Rotimi Jacobs (SAN), told the court that he called the witness phone line yesterday (Wednesday) to inform him of today’s proceedings but he could not reach him.
Jacobs said that he was later informed by a Special Assistant to the witness that Obanikoro was on admission in the hospital, and he exhibited a written medical report before the court, evidencing same.
In response, the defence counsel, 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, Judge Olatoregun directed that Obanikoro be present in court at the next adjourned date, failing which the court may have to compel him to appear.
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, Justin Erukaa (now late).
At the last adjourned date, Ojo had sought to tender the statement from the bar, but the prosecutor raised an objection to oppose same.
He argued that the statement could only be tendered through its maker.
On Thursday, Mr 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 said that both in the oral evidence of the witness and even Erukaa’s, the witness admitted to have sent his aide on several errands.
He said that included the order that he should collect the sum of $1.6 million from a Bureau De Change.
He argued that the fact depicted the relevance of Erukaa’s statement sought to be tendered from the bar.
Ojo citing the 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, urged the court to admit the evidence of Erukaa whom he said is “late”.
“Admissibility is not synonymous with weight; the court can admit the statement in evidence and in the cause of judgment, may choose to not to consider same,” he said.
He urged the court to uphold his argument.
In opposing the application, Rotimi 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.
Jacobs also argued that Section 39 of the Evidence Act relied on by the defence counsel was not relevant to the fact in issue, but only deals with “Res Gestae” or a dying declaration.
He added that the 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 could be admitted, it must comply with the requirement set out in Section 40 of the Act.
According to Mr Jacobs, “The maker of the statement must come out to say it”. He urged the court to refuse same.
After listening to submissions of the counsel, the judge adjourned the case until March 18 by 12 noon, March 19 and March 20, for continuation of trial.
According to the charge, on June 17, 2014, Messr Fayose and Agbele were said to have taken possession of the sum of N1.2bn for purposes of funding Fayose’s gubernatorial election campaign in Ekiti State, which sum they reasonably ought to have known formed part of crime proceeds.
Fayose was also alleged to have received a cash payment of the sum of five million dollars, (about N1.8bn) from the then Minister of State for Defence, Mr 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 N851m 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 N1.6bn 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 N200m to acquire a property in Abuja in the name of his elder sister, Moji Oladeji, which sum he ought to have known also formed crime proceeds.
The offences contravene 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.