A Federal High Court, Lagos, has fixed March 23 and April 9 for ruling in an objection on the admissibility of prosecution witness’ evidence in the ongoing trial of former Minister of Federal Capital Territory, Jumoke Akinjide, charged with N650 million fraud.
Akinjide is being prosecuted by the Economic and Financial Crimes Commission along with a former Minister of Petroleum Resources, Diezani Alison-Madueke, who is said to be “at large”.
Also charged with them are a former Senator, Ayo Adeseun, and a Peoples Democratic Party chieftain, Olarenwaju Otiti.
The accused are charged with conspiring to directly take possession of N650 million which they reasonably ought to have known formed part of proceeds of an unlawful act and without going through a financial institution.
At the resumed hearing of the case on Friday, the EFCC prosecutor, Rotimi Oyedepo, told the court that he received letters from all defence counsel requesting some documents.
The document are investigation report of the investigating officers, documents relating to the investigation, records of proceedings at the magistrates’ court, Ogba, magistrates’ court remand proceedings at Ogba and other relevant materials.
Oyedepo said he had supplied the documents in his custody and additional proof of evidence to counsel to the defendants.
Bolaji Ayorinde (SAN), in response to the prosecution, told the court that the documents demanded were certified true copies but the prosecution did not avail them the certified copies.
He said the certification was important as the defence would be relying on the documents to cross-examine witnesses and to lead other evidence.
Ayorinde said: “My Lord, we also rely on Section 379 (1) of the Administration of Criminal Justice Act which relates to particulars of any previous interlocutory proceedings.
“The prosecution cannot deflect the responsibility to provide the defence with those documents.
“They should produce the certified copies of the record of proceedings at the magistrates’ court in suit no: M/189/17 and remand proceedings in M/158/16.”
Michael Lana, counsel to the second accused, agreed with the submission of Ayorinde and further informed the court of efforts since 2016 to get the records.
He noted that the name, designation and statement of the representative of a new generation bank that the prosecution intends to call as a witness were not included in the proof of evidence.
According to him, the additional proof of evidence served on the defence this morning did not have the Nigerian Bar Association stamp and seal.
Akinola Olajide, the counsel to the third accused, also agreed with defence counsel and urged the court to order the prosecution to certify the documents.
Oyedepo, before his reply to the objection, applied to the court to affix receipt of payment for NBA stamp and seal to the additional proof of evidence.
The court granted the application and the receipt was attached.
Oyedepo submitted that certification of documents was a requirement for admissibility and that the referred documents were already admitted and front-loaded.
He said the identification of the bank witness was provided in the statement of account and certificate of identification already front-loaded.
He said: “We have given the defence, the parties, suit number and court of the remand notice that suffice as particulars.
“I urge Your Lordship to allow this matter to continue having complied with the order of my lord in line with the Act.”
In a short ruling, Justice Hassan said the proof of evidence was not an evidence but a summary of evidence the prosecution intended to rely on.
He also stated that the defendants were also parties of the Ogba Magistrates’ Court trial and that the obligation to get the record of proceedings should be theirs.
He ordered the examination-in-chief of the PW2 to proceed and that the prosecution had complied with the order of the court and certification was not a necessity.
The PW2 mounted the witness box and began giving his oral evidence.
Usman Zakari told the court that in December 2014 he conducted an investigation where he got intelligence of a meeting at the residence of the former Petroleum Minister, Deziani Allison-Madueke.
According to him, in attendance were the former petroleum minister, the Managing Director of a bank and three oil marketers.
The witness listed four payments totaling 89 million dollars paid by Austus Integrated Ltd, Northern Belt Oil & Gas, Midwestern Oil Services and Lelo Adesanya.
He told the court that another 25 million dollars was paid by the aides of the then petroleum minister.
Zakari said a total of 115 million dollars was collected by Fidelity Bank and housed in its cash vault and that the money was converted to Naira, amounting to N23 billion.
He said: “Allison-Madueke then instructed the Bank to pay the first, second defendants and one Yinka Taiwo N650 million.”
Findings further revealed that the defendants confessed collecting the money and admitted to making cash payments above the legally permitted ceiling of N5 million.
Ayorinde raised an objection to the admissibility of PW2’s oral evidence, saying all the witness recounted was simply “hearsay”.
He cited an unreported 2017 Supreme Court case between Federal Republic of Nigeria and Olubukola Saraki and submitted that the witness could not give evidence outside his process of investigation.
He said the witness only heard of all the previously mentioned transactions and that his evidence should not form part of the court’s records.
Lana told the court that the witness did not personally receive the oral intelligence from the unknown source and could not give evidence on it.
Oyedepo said: “The evidence given by PW2 is of his investigative findings in the course of his investigation.
“The law is settled that such evidence cannot amount to hearsay; evidence given by this witness is relevant to the facts in issue in the charge.
“And because the charge does not contain the particulars of the offence does not make it bad.”
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