Read previous post on case here.
Trial continued today in the charge against former Minister Nenadi Esther Usman, Mr. Femi Fani-Kayode, Danjuma Yusuf and Joint Trust Dimensions Limited before Justice Rilwan Aikawa of the Federal High Court sitting in Lagos.
Trial had originally commenced in the charge before another Judge, Justice M.S. Hassan on the 21st of October 2016 over charges bordering on conspiracy to retain funds which the defendants ought to have reasonably known formed proceeds of crime and retaining and using funds which they ought to have reasonably known formed proceeds of crime. Mr. Fani-Kayode is further charged with making cash payments exceeding the amount authorized by law. Justice Hassan had withdrawn from the charge on the 16th of March 2017 upon an application filed by Mr. Fani-Kayode over his apprehension of a likelihood of bias owing to the judge’s previous job as a prosecutor with the Economic and Financial Crimes Commission (EFCC) who is prosecuting the instant charge. (Read about it here).
The charge is now before Justice Rilwan Aikawa who commenced today’s proceedings with a ruling admitting into evidence the statement of account of Mr. Fani-Kayode which had been tendered by the prosecution. Mr. Fani-Kayode’s lawyer, Norrison Quakers SAN had objected to the admissibility of the statement of account sought to be tendered by the EFCC on the ground that it failed to comply with the provisions of Section 89 and 90 (1)(e)(i) -(iv) of the Evidence Act 2011. In his ruling, Justice Aikawa overruled the objection stating that the witness through whom the statement of account was tendered being an officer of the bank had testified that the statement of account was made in the ordinary course of banking business through a computer and that he had examined the contents and compared it with the database of the bank to ascertain that it was correct before making a certificate in that regard. The court held that by his evidence, the requirements of the Section 90 (1)(e)(i) -(iv) of the Evidence Act had been met. The prosecution also tendered into evidence the account opening package, statement of account as well as some transaction instruments carried out on the account of Joint Trust Dimensions Nigeria Limited, the 4th defendant in the charge.
The prosecution’s second witness, an officer of Zenith Bank testified that from the account opening package of the account of Joint Trust Dimensions Nigeria Limited, Mr. Danjuma Yusuf, the 3rd defendant in the charge, was the sole signatory to the account. Led by Mr. Oyedepo, the prosecutor, he made reference to some transactions in the statement of account of the company and referred to an inflow into the account of the company in the sum of 300 million Naira on the 8th of January 2015 from a MEA Research Library; an inflow in the sum of 400 million Naira on the 13th of January 2015 from a MEA Research Project and an inflow in the sum of 800 million Naira on the 16th of January 2015 from MEA Research Capital.
The lawyer to Ms. Nenadi Usman, Chief Ferdinard Orbih SAN, at this point objected to the testimony of the witness stating that the witness was importing extraneous facts into the statement of account from which he was testifying. Stressing that it formed a crucial part of the defence of the defendants, he stated that the reference in the statement of account tendered for the transaction of the 16th of January 2015 was ‘MFA Research Capital’ and not ‘MEA Research Capital’ as stated by the witness. He argued that this was purposely done with the intention of misleading the court into believing that the money came from the same source on which evidence had been given, i.e., MEA. He urged the court to expunge the part of his evidence which was in direct conflict with the document he was reading from. Mr. Fani-Kayode’s lawyer, Mr. Quakers SAN agreed with the objection. The prosecutor, Mr. Oyedepo however argued that the objections were premature as the witness was still giving his evidence under examination -in-chief. He argued that the court cannot, at the stage where a witness was still being examined in chief, begin to evaluate the witness’ testimony in order to determine the veracity of it. He submitted that the objections were at best to be addressed at the final address stage of the proceedings. He further argued that though a witness cannot give evidence to vary or alter the contents of a document, where a witness who has knowledge of a document knows of an omission that arose from the printer’s devil, he can speak of it and make the appropriate corrections. He submitted that since the statement of account emanated from the witness’ bank and since the witness was the one who printed it out and produced it to the court after comparing its contents with that of the database of the bank, he can reveal the real source or details of the funds transferred into the account.
In his reply on points of law, Chief Orbih SAN argued that the objection was not premature. He referred to the case of Jologbo & Anor v. Aina & Anor (2016) LPELR – 40352 (CA) and submitted that evidence which is at variance with the documents before the court is inadmissible. He argued that the appropriate time to raise objections to the admissibility of documentary evidence is when the document is sought to be tendered while the appropriate time to raise objections to the admissibility of oral evidence is immediately the words were spoken by the witness. Mr. Quakers SAN added in his reply on points of law that the prosecutor could not manufacture evidence in his legal arguments before the court as there was no evidence of a printer’s devil by the witness in the proceedings.
In his ruling, the court agreed with the defendants’ lawyers that it is not within the province of a witness to vary the contents of a document. In the document tendered before the court from which the witness is giving his testimony, the transaction of the 16th of January 2015 was from ‘MFA Research Capital’ and not ‘MEA Research Capital.’ The court held that the evidence stating ‘MEA’ instead of ‘MFA’ is inadmissible and expunged only that portion of the evidence from the records.
Before the charge was adjourned due to another criminal trial scheduled to commence before Justice Idris at 1 pm in which both Mr. Oyedepo and Mr. Quakers SAN were involved, the witness referred to three debits from the statement of account of the company to Mr. Fani-Kayode. On the 2nd of February 2015, there was a transfer in the sum of 350 million Naira, on the 19th of February 2015 – a transfer in the sum of 250 million and on the 19th of March 2015, a transfer in the sum of 240 million Naira.
The charge has been adjourned to the 31st of January 2018 for continuation of trial.