Segun Atanda/
Former Minister of State for Defence, Senator Musiliu Obanikoro risks three months in jail if he fails to appear in court on February 18 and continue to testify against former Ekiti State governor, Mr Peter Ayodele Fayose as a prosecution witness in a N6.9 billion fraud trial at a Federal High Court in Lagos, says a Federal High Court Judge today.
Reacting to the prosecuting council of the Economic and Financial Crimes Commission (EFCC), Mr Rotimi Jacobs SAN who told the Court that Obanikoro, the fifth prosecution witness, couldn’t appear because he was hospitalized, Justice Mojisola Olatoregun asked for a medical report.
Jacobs presented a piece of paper which the Judge refused to admit as a medical report, noting that it would put the hospital and the doctor in trouble if the Court moves to verify the genuineness.
The defence counsel, Mr Ola Olanipekun (SAN), frowned at the absence of Obanikoro. He argued that if learned counsel had made themselves available in court, then the witness had no right to be absent.
Before presenting the medical report, Jacobs had told the court that he called the witness phone line on Wednesday to inform him of today’s proceedings but he could not reach him.
He said that he was later informed by a Special Assistant (SA) to the witness that Obanikoro was on admission at a hospital in Ikoyi.
She, however, accepted Jacobs alibi on the basis of being a trusted lawyer and a senior member of the Bench.
But, Justice Olatoregun warned that if Obanikoro fails to appear on the next adjournment date, she would send him to jail for three months, “so that he can be coming to court in Black Maria”.
She said, “He must present himself before the Court on the next adjourned date or be compelled to do so.”
The Judge later adjourned the case till February 18, 19, and 20 for the continuation of Obanikoro’s cross-examination in the trial.
Fayose’s trial began on October 22, 2018, when he was arraigned alongside his company — Spotless Investment Ltd on 11 counts. He had pleaded not guilty to the charges.
Fayose’s counsel, Mr Olalekan Ojo (SAN) cited several cases today as he argued with Jacobs on the concept of admissibility of evidence.
Ojo addressed the court on the admissibility of an extra-judicial statement made by a party who is not standing trial. He urged the court to admit in evidence, a Certified True Copy (CTC) of a statement made by a former aide to Obanikoro, Mr 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.
Today, Ojo argued that the first litmus test of admissibility is relevance. He urged 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 sending his aide on several errands.
He said that included the order that he should collect the sum of $1.601million 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 who he described as “Late”.
“Admissibility is not synonymous with weight; the court can admit the statement in evidence and in the cause of
He urged the court to uphold his argument.
In opposing the application, Jacobs reiterated the question for determination “whether the statement of a person not called as a witness could 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 Jacobs, “The maker of the statement must come out to say it.”
He urged the court to refuse same.
Ojo, however, argued that, in law, a statement made by a person to the Economic and Financial Crimes Commission in the course of their investigation into the case is receivable and admissible in evidence without the maker being called as a witness and without the maker being a party to the proceedings.
“It is not the Law that a document not tendered through its maker is not valid,” he submitted.
After citing some cases in the All Federation Law Report, Okeke vs The State – 2015, pg 39, 59, Jacobs hit back at Ojo that “hearsay evidence is not relevant”.
He told the Judge: “I submit that all the authorities cited are not relevant.”
Among cases cited by Ojo are the c
Jacobs also cited cases in All Federation Law Report, Okeke vs The State – 2015, pg 39, 59.
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