TRIAL BEGINS IN MONEY LAUNDERING CHARGES AGAINST FEMI FANI -KAYODE, NENADI USMAN AND OTHERS

Trial began yesterday, the 21st of October 2016, at the Federal High Court in Lagos in respect of the 17-count money laundering charge brought by the Economic and Financial Crimes Commission (EFCC) against the former director of Media and Publicity of the PDP Presidential Campaign Organization, Mr. Femi Fani-Kayode, Former Minister Nenadi Usman, Danjuma Yusuf and Jointrust Dimensions Nigeria Limited. The four Defendants are charged with offences bordering on conspiracy to retain funds which they ought to have reasonably known were proceeds of crime and retaining and using funds which they ought to have reasonably known were proceeds of crime. Mr. Fani-Kayode is further charged with making cash payments exceeding the amount authorized by law.

Before the trial began, the lawyers representing the different defendants raised observations regarding the incomplete proof of evidence afforded them by the prosecution. Mr. Saad who was holding the brief of Chief Ferdinard Orbih for Nenadi Usman who is the first defendant in the charge was the first to make the objection. He stated that the prosecution had not complied with the Federal High Court (Criminal) Practice Directions 2013 as they have listed 17 witnesses to be called at the trial and have forwarded the witness statements of only 5 of them in the proof of evidence. He argued that if the trial was allowed to commence without the complete witness statements forwarded to the defence, it would prejudice his client. He argued that the defendants deserved to have an overview of the case to be presented by the prosecution before trial commences so that the trial would not amount to a trial by ambush. Mr. Wale Balogun representing Mr. Fani-Kayode agreed and stated that the issue is one deeply rooted in the essence of our criminal jurisprudence and one premised on the constitutional provisions relating to fair hearing and fair trial. He argued that it is an elementary principle of law that a defendant ought to know the case he is going to meet at trial which includes what each and every witness is coming to say about him. He argued that the reason for this is so that he would be able to prepare his defence. He urged the court to direct the prosecution to supply the witness statements of all the witnesses they propose to call before proceeding with trial or discountenance the other witnesses whose statements are not contained in the proof of evidence. Mr. Clement Onwuenwunor who was holding the brief of S.I. Ameh SAN representing Danjuma Yusuf and Jointrust Dimensions Nigeria Limited also agreed. He added that Rule 4 of the Federal High Court (Criminal) Practice Directions 2013 also enjoined the prosecution to supply to the Defendants and specify in clear terms what further evidence they intend to lead apart from the ones already contained in the proof of evidence and how long it would take them to afford the defence service of such further evidence. He argued that since the prosecution has failed to do this, trial should not be allowed to commence. He also added that S.I. Ameh SAN who was personally handling the defence of the 3rd and 4th Defendants could not catch a flight from Abuja to Lagos and it would therefore serve the course of justice if the trial is adjourned.

The prosecutor from the EFCC, Mr. Rotimi Oyedepo in his response argued that the objections to the commencement of trial were brought in bad faith. He stated that the prosecution had substantially complied with the provisions of the Federal High Court (Criminal) Practice Directions 2013 to the extent that 7 days before the arraignment of the defendants, the prosecution served them with the charge and the proof of evidence, which included the statements of the witnesses the Commission intends to call. He argued that the legal implication of the plea of the Defendants when arraigned is that they are deemed to have put themselves up for trial and that since they failed to raise the objections at the point of arraignment, they were estopped for doing so. He added that no notice to produce any particular statement was served on him by any of the defendants. He therefore concluded by stating that the spirit behind the objections raised was to cause delay in the prosecution of the charge. He said that the witness statement of the witness he intended to call was in the proof of evidence and he urged the court to refuse any application seeking adjournment of the charge based on Rule 6 of the Federal High Court (Criminal) Practice Directions 2013 which empowers the court to prevent delay by refusing to grant an application for adjournment on the day the matter is fixed for hearing. He also urged the court to give effect to the provisions of Section 19(2)(c) of the EFCC Establishment Act 2004 by preventing delay in the suit.

Mr. Saad in his reply on points of law argued that non-compliance with the Criminal Practice Directions of the court has the effect of vitiating the proceedings and is prejudicial to the Defendants. He added that the Defendants were not under an obligation to give the prosecution notice to produce and that it was the prosecution’s duty to put his house in order. Mr. Balogun in his reply argued that the issue of estoppel cannot arise as the constitutional protection of litigants especially in criminal trials cannot be waived. He added that substantial compliance to the Practice Directions would not suffice for a criminal trial as Rule 6 relied upon by Mr. Oyedepo is to be applied according to the law and justice and practicability of it. He added that the Rule 6 and Section 19 of the EFCC Act relied upon by Mr. Oyedepo are circumscribed under the Constitution and where their applicability conflicts with the applicability of the provisions of Section 36 of the Constitution, they would have to bow to the Constitution by virtue of the provisions of Section 1(1) of the Constitution. He argued that the court should not allow trial by piecemeal. Mr Onwuenwunor in his reply argued that by the provision of Section 36(6)(b) of the 1999 Constitution the defendant ought to be given adequate time and facilities to prepare his defence and that Rule 4 of the Criminal Practice Directions of the court was intended to afford the defendants with the said adequate facilities. He argued that failure of the prosecution to fully comply with the provisions of Rule 4 of the Criminal Practice Directions of the court is a denial of the right of the Defendants to adequate facilities to prepare for their defence. He also referred the court to Rule 6(6)(b) of the Criminal Practice Directions of the court that provides that a defendant is allowed adjournment twice during the trial. He urged the court to grant an adjournment in order for S.I. Ameh SAN to conduct the case of the 3rd and 4th Defendants.

Justice M.S. Hassan in his ruling formulated the issue for determination as whether the defendants were given adequate time and facilities to prepare their defence. He found that the prosecution had complied with the provisions of the Constitution and the Practice Directions and had served the Defendants with the charge and the proof of evidence. He held that the prosecution is not duty bound to call all the witnesses listed and stated that the spirit behind the application for adjournment is to delay trial as the objections raised technical issues. He held that since the witness statement of the witness to be called by EFCC was in the proof of evidence, the objection of the Defendants was overruled as they can only raise objections when the prosecution seeks to call a witness whose statement had not been given to them. He also held that lawyers representing the 3rd and 4th Defendants who were present in court could record the proceedings and later on seek an adjournment to cross-examine the witness and refused the application for an adjournment. He directed the EFCC to call its first witness.

The EFCC’s first witness is Mr. Idowu Olusegun. He introduced himself as a media consultant who uses the name Paste Poster Company (PPC) which is his business name. He testified that he wrote a proposal to the Director, Media and Publicity to the PDP Presidential Campaign Organization when Mr. Fani-Kayode was the director seeking to get media consultancy and printing jobs from him. He said that in his proposal, he asked for N80 per copy to print an A2 poster and N30 per copy to print an A4 flyer and the sum of N44 million for the media consultancy aspect of the job for the entire campaign period. He testified that the sum was negotiated down to N50 per copy for the A2 poster and N20 per copy for the A4 flyer while the consultancy was negotiated to N24 million. He added that his business printed two batches of posters and flyers, the first for the sum of N6million and the second for the sum of N24 million. He said that the job was fully carried out and that evidence of the job was submitted to the EFCC. He testified that the printing jobs were delivered to the office of the Media and Publicity of the PDP Campaign Organization at 14b, Samora Michaeal Avenue, Asokoro, FCT, Abuja. He stated that his business was paid the sum of N30 million for the printing of the posters and flyers but was still being owed the sum of N24 million for the consultancy part of the job. He testified that the sum of N30 million was paid to them in cash at one go and they were told that that was the mode of payment approved. He added that two receipts were issued for the payment – one in the sum of N6million and the second in the sum of N24 million. He added that they were told to deliver the job before they could be paid and he accepted the cash because he delivered the job without any advance. He testified that the payment was done at the office of the Media and Publicity of the PDP Campaign Organization at 14b, Samora Michaeal Avenue, Asokoro, FCT, Abuja. When asked if his company was the only one paid using that mode of payment to his knowledge, the lawyers representing the Defendants objected. Mr. Balogun argued that the question was not relevant to the issue while Mr. Saad argued that the question was tantamount to fishing for evidence and that the likely response to be supplied would have no value as the witness cannot have any knowledge as to how the finances of the Media and Publicity of the PDP Presidential Campaign Organization was run. Mr. Odiniru who had taken over from Mr. Onwuenwunor argued that the likely answer of the witness would amount to hearsay evidence. The prosecutor, Mr. Oyedepo in his response argued that the question was relevant to the fact in issue and that the witness could give evidence as to what he saw, what he heard and what he perceived. He relied on the provisions of Sections 9, 12 and 13 of the Evidence Act. Mr. Balogun in his reply on points of law stated that the answer to be extracted from a question must be admissible in law and argued that the likely answer to be given by the witness would amount to hearsay. Mr. Saad argued that the witness was not the proper person to solicit the answer sought while Mr. Odiniru reiterated that the answer would amount to the witness giving evidence in respect of transactions he was not a party to which amounts to hearsay evidence. The court in its ruling held that the question was relevant and that a witness can give evidence of what he saw, heard or perceived. The question was allowed. In his answer, the witness stated that when he asked why he was being paid in case, Mr. Oke told him that cash was the approved mode of payment. When asked who Mr. Oke was, the witness stated that he believes Mr. Oke stands in the stead of Mr. Fani-Kayode because it was Mr. Oke he was dealing with all through the transactions. When asked if he was speaking of Mr. Olubode Oke, he stated that he does not know his first name but knows him simply as Mr. Oke. Mr. Oyedepo sought to tender a copy of the letter of proposal sent by the company to the Director, Media and Publicity of the PDP Presidential Campaign Organization dated the 28th of January 2015. There was no objection from Mr. Saad; Mr. Balogun however objected on the ground that there was nothing on the face of the letter to show that it was received by the addressee. He added that even though the letter was certified by EFCC, EFCC was not the author of the letter and asked the court to reject the letter or otherwise refuse to attach any weight to it. Mr. Odiniru also objected to the tendering of the letter on the ground that it was not coming from proper custody, as the person that signed the letter is not the person seeking to tender it. Mr. Oyedepo in his response argued that the letter was certified by EFCC from whose custody the document was produced in court and urged the court to admit it. The court in its ruling held that what governs admissibility is relevancy and found that the letter was relevant. The court also held that the letter though private is a public document by virtue of Section 102 of the Evidence Act as it was in the custody of a government agency and thus emanated from public custody. The court further held that the weight to be attached to it would be determined at the conclusion of trial. The letter was thus admitted as exhibit P1.

Having regard to the time spent and the need for muslims to observe their Friday prayers, the case was adjourned at this point to 14th and 15th of November 2016 for continuation of trial. The court held that the defendants were to continue on the bail already granted them by the court. The lawyer to Mr. Fani-Kayode at this point informed the court of the apprehension of his client that he would be re-arrested immediately after the court proceedings. Mr. Oyedepo stated that he had no knowledge of any impending arrest and assured the court that the Defendant would not be re-arrested in respect of the charge in which trial had begun. Justice Hassan advised the Commission to respect the rights of litigants and stated that since Mr. Fani-Kayode was already charged before the court and has shown up for trial, he could be invited in respect of any further charges against him, make statements and released to go home as there was no need to detain him indefinitely. He advised Mr. Balogun to take the appropriate steps in the event of Mr. Fani-Kayode’s re-arrest and detention.

Mr. Fani-Kayode was indeed rearrested upon stepping out of the court premises.

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