Justice Mojisola Olatoregun of the Federal High Court, Lagos, has ordered Senator Musiliu Obanikoro, a prosecution witness in the ongoing trial of former governor of Ekiti State, Ayodele Fayose, to appear before the court unfailingly on March 18.
The order was sequel to Obanikoro’s absence at court yesterday to continue his cross-examination.
Fayose and his company, Spotless Investment Limited, are facing charges of N6.9 billion fraud slammed on them by the Economic and Financial Crimes Commission (EFCC) and Obanikoro is the fifth prosecution witness in the trial.
They were arraigned before Justice Olatoregun on 11 counts on October 22, 2018.
The court, while giving the order, said it was important for the witness (Obanikoro) to be aware of the seriousness of his civic responsibility.
It, therefore, implored him to endeavour to show up on the next adjourned date.
The judge held that, where the witness failed to appear on the next date, the court would have no option but to compel him.
The EFCC had opened its case for prosecution on November 19, 2018, and called four witnesses.
On January 21, 2019, the prosecution called its fifth witness, Obanikoro, a former Minister of State for Defence.
On February 5, 2019, which was the last adjourned date, Obanikoro was still under cross-examination by the second defence counsel, Mr. Olalekan Ojo (SAN).
However, the court had to adjourn the case until February 7, for counsel to address it on the admissibility of an extra-judicial statement made by a party who was not standing trial.
At the resumed hearing of the case on Thursday, Obanikoro was not present in court.
The prosecutor, Mr. Rotimi Jacobs (SAN), told the court that he called the witness’s phone line on Wednesday to inform him of the next day’s proceedings but he was unreachable.
Jacobs said that he was later informed by a special assistant to the witness that Obanikoro was on admission in the hospital, and he exhibited a written medical report before the court, evidencing same.
In response, the defence counsel, Mr. Ola Olanipekun (SAN), criticised the absence of the witness, arguing that, if the counsel had made themselves available in court, then the witness had no right to be absent.
Consequently, Justice Olatoregun directed that Obanikoro must be present in court at the next adjourned date, failing which the court would have to compel him to appear.
Meanwhile, in addressing the court on the admissibility of an extra-judicial statement made by a party not standing trial, Ojo urged the court to admit in evidence a certified true copy 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.
Yesterday, Ojo argued that the first “litmus test” of admissibility was relevance, urging 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 to have sent his aide on several errands.
He said that included the order that he should collect the sum of $1.601 million from a bureau de change.
In opposing the application, Jacobs reiterated the question for determination “whether the statement of a person not called as a witness can be admissible in evidence.”
He submitted that such evidence was not admissible in law as it was 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 dealt 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.
After listening to the submissions of the counsel, Justice Olatoregun adjourned the case until March 18, 19 and 20, for continuation of trial