Justice Mojisola Olatoregun of the Federal High Court in Lagos yesterday threatened to order the arrest of former Minister of State for Defence, Senator Musiliu Obanikoro, for absence without notice to the court.
The absence of Obanikoro, who is testifying for the Economic and Financial Crimes Commission (EFCC) in the trial of former Ekiti State Governor Ayodele Fayose, stalled the continuation of his cross-examination.
EFCC lawyer Rotimi Jacobs (SAN) said Obanikoro took ill and was admitted.
“I called him yesterday (Wednesday) to notify him about today’s (yesterday’s) proceedings. He said he thought he would be discharged on Wednesday (when the court did not sit).
“This morning (yesterday), I couldn’t reach him on phone. But his Special Assistant informed me that Obanikoro was receiving treatment in the hospital,” he said.
When the judge asked for a medical report, Jacobs submitted one given to him by Obanikoro’s aide.
But the judge appeared unconvinced by the report.
She said Obanikoro had a civic obligation to be in court to continue with his testimony.
“If I want to pursue it, the medical doctor may lose his license for issuing this report. But I will accept this because you (Jacobs) are a responsible member of the inner bar,” Justice Olatoregun said.
Fayose’s lawyer Ola Olanipekun (SAN) said he would have applied for a bench warrant for Obanikoro’s arrest but urged the judge to send a warning to the witness.
Justice Olatoregun said she would not hesitate to order Obanikoro’s arrest should he fail to appear at the next adjourned date.
“If he fails to appear, he’ll be sent to jail and they’ll be bringing him from there with Black Maria,” the judge said.
In a short ruling, the judge said he would give Obanikoro the benefit of the doubt.
She added that she hoped he would be in court next time, failing which she would have “no choice” than to order his arrest.
Jacobs and lawyer to Spotless Limited, Fayose’s co-accused, Mr Olalekan Ojo (SAN), addressed the judge on whether a statement made by the late Justin Erukaa, Obanikoro’s associate, could be tendered.
Ojo said the statement was relevant to the case because Erukaa made the statement in the course of the investigation.
“In law, the first litmus test of admissibility is relevance. Obanikoro said in his testimony that he sent Erukaa on errands, including to collect over $1 million and that he came to meet him in Ekiti State.
“In law, a statement made to the EFCC in the course of investigation is admissible in evidence without the maker being called as witness or being a party to proceedings.
“It is not the law that a document, which is not tendered through the maker is not admissible,” the SAN said, relying on sections 39 and 83 of the Evidence Act.
But Jacobs opposed Ojo’s bid to tender the statement, arguing that it was not admissible in law.
He said the sections Ojo relied on were not applicable in the circumstance.
“He wants to smuggle the statement in,” Jacobs said.
According to him, certain conditions must be met before a statement made by a dead person could be tendered, including that the person must have appeared in the proceedings.
Fayose is on trial for allegedly receiving and keeping N1.2 billion and $5 million allegedly stolen from the Office of the National Security Adviser (ONSA), contrary to the Money Laundering Act.
He pleaded not guilty when he was arraigned on an 11-count charge last October 22.
EFCC said Fayose and Biodun Agbele, who is facing a different charge, allegedly took N1,219,000,000 on June 17, 2014, to fund the former governor’s 2014 campaign.
The commission said Fayose “reasonably ought to have known” that the money “formed part of the proceeds of an unlawful act, to wit: criminal breach of trust/stealing”.
EFCC said Fayose, on the same day, received cash payment of $5 million from Obanikoro, without going through a financial institution, the sum having exceeded the amount authorised by law.
Fayose pleaded not guilty.
Justice Olatoregun adjourned till February 18, 19 and 20 for ruling and continuation of trial.