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Money Laundering: Court clears Fani-Kayode of 38 out of 40 count charges

By The Citizen
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A former minister of aviation, Chief Femi Fani-Kayode was yesterday discharged from 38 out of 40 count charges by a Federal High Court in Lagos over money laundering filed against him by the Economic and Financial Crimes Commission (EFCC).

The trial judge, Justice Rita Ofili Ajumogobia discharged and acquitted the former minister of 38 counts of the charge, she, however, ordered him to open his defence on the remaining two counts,

According to the judge, the EFCC has led evidence to show the ingredient of the offence in counts 25 and 26 which will necessitate the minister to enter his defence.

Justice Ofile-Ajumogobia gave this verdict while ruling on a no case submission filed by Fani-Kayode, in which he had urged the court to discharge him of the charge because the EFCC had failed to establish a prima facie case against him.

Counts 25 reads: 'That you, Chief Femi Fani-Kayode on or before 20th Sept. 2006, while serving as minister of culture and tourism of the Federal Republic of Nigeria, in Lagos within the jurisdiction of this honourable court, made a transaction exceeding N500,000 which was not done through financial institution, by accepting cash payment of N1 million, which sum was further paid into your personal account number, 103450252601 with First Inland Bank PLc Apapa branch, now FCMB, through one Supo Agbaje, your administrative staff, now at large.

Count 26 reads, 'That you, Chief Femi Fani-Kayode on or before 20th Sept. 2006, while serving as minister of culture and tourism.

of the Federal republic of Nigeria, in lagos within the jurisdiction of this honourable court, made a transaction exceeding N500,000 which was not done through financial institution, by accepting cash payment of N1.1 million, which sum was further paid into your personal account number, 103450252601 with First Inland Bank PLc Apapa branch, now FCMB, through one Supo Agbaje, your administrative staff, now at large.

The EFCC had accused Fani-Kayode of allegedly laundering about N100 million while serving as a Minister under the Obasanjo's administration.

He was specifically accused of conducting financial transaction exceeding N500,000, which was not done through a financial institution by accepting cash payment of various sum which was further carried in cash to First City Monument Bank Plc (FCMB)) through some of his associates.

The accused person, however, pleaded not guilty to the charge and has since his arraignment in December 2008 being on bail.

In her ruling, the judge listed three issues to be consider before a no case submission can succeed: has the prosecution led any evidence to link the accused person to the commission of the offence?

Is the evidence adduced by the prosecution so credible to sway the court to compel the accused person to enter his defence and is the evidence so adduced make meaning and sense to any discerning minds?

After reviewing the case of the prosecution, the court held that the commission failed woefully to prove beyond reasonable doubt the offences in thirty -eight . Counts accordingly discharged and acquitted the former minister on them.

She held that from the wordings of the charge, it was clear that they were basically set out in two formats, with counts one to 33 of the same format, while other counts of different formats.

'For ease of reference, I shall set out counts one and 33 only, being prototype of the two species of the counts; the distinction however, is for the basis of convenience.

'In one format, the accused was alleged to have paid the amount into his own account, while in the other, he was alleged to have paid it into the account of a third party.

'I find that there was an acceptance of cash payment of an amount exceeding N500,000 by the applicant which was not done through a financial institution, and also, a payment at the behest of the applicant.

'This distinction pales into insignificance when one considers the elements of each counts.

'The first element would have been satisfied if the prosecution led evidence to show that cash sums exceeding the statutory threshold was handed to a specified third party, which was further transmitted to a financial system.

'The second element is discharged where the prosecution leads evidence to show that the said transmission was at the behest of the applicant.

'It will be immaterial in my view whether the monies were paid into the account of the accused or a third party.

'Only PW4 and PW5 gave evidence about payment; the testimony of PW5 in particular was in respect of counts 21, 23 and 31, and on the application of prosecution, PW5 was declared a hostile witness.

'It is not in doubt that the oral and written submissions of PW5 are contradictory and inconsistent and no reasonable tribunal is expected to convict on such testimony.

'The natural implication therefore, is that no evidence exists before this court to establish counts 21, 23, and 25.

'By extension, the same calamity befalls the remaining counts in the charge. I am of the considered view that no scintilla of evidence has been put forward by prosecution to establish the two key elements of each count in the charge save 25 and 26.

'PW4 testified on counts 25 and 26 that on the instruction of the accused, he made cash deposits in the sum of N1 million and 1.1 million on the Sept. 20 and 29, 2006.

'PW1 was also led in evidence to tender exhibits PE1A and PE1B, purporting to be statements of accounts alleging actual lodgements of the said sum.

'In the light of all these, I hold the firm view that the prosecution has made out a prima facie case to warrant the accused person to put up an explanation by way of defence with respect to counts 25 and 26.

'I need not say more at this stage, in order not to fetter my discretion in this matter.

'The indubitable conclusion to be arrived at is that, this application succeeds in part, the no case submission of the applicant is upheld on all counts, except, counts 25 and 26.

'In other words, the applicant is discharged and acquitted of counts, 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, and 40

'The accused is therefore, ordered to enter his defence with respect to counts 25 and 26. This is my ruling as read out in open court' she held.

After the ruling , counsel to Fani-Kayode, Dr Abiodun Layonu urged the court for a short adjournment to enable the defence prepare for their case.

Based on the request, the judge adjourned the case till December 8, when the former minister is expected to open his case.

Fani - Kayode' s lawyer, Adedipe ( SAN ), had while adopting his submission urged the court to discharge his client of all 40 counts , on the grounds that no case has been made out against him, to warrant him to enter a defence .

According to the lawyer since Fani-Kayode pleaded not guilty to the charges against him, he has joined issues with the prosecution, leaving them to prove their case beyoud reasonable doubt.

Adedipe also noted that 'The prosecution called six witnesses, and of all these witnesses, none of them came forward to give any evidence that they had any financial transaction with the accused.

'Pw3 (Suprintendent of Police) told this court that nobody came forward to say that he gave any cash to the accused.

'Pw5, (former aide to accused) gave evidence that it was one Kolade who gave him the money he lodged into the account of accused, and this does not prove anything against the accused' Adedipe stated.

He further submitted that even though the statement of account of the accused was put in evidence for which he was required by the prosecution to make explanations, such statement was not prima facie evidence of crime.

Citing the authority of Abacha vs State, Adedipe stressed that by the decision of the Supreme Court, such statement of account could only amount to mere suspicion which no matter how well placed, did not constitute a prima facie case.

'If an individual receives several sums of money from different sources, he is expected to lodge same, and so, the fact that certain amounts are found in his account, does not amount to an offence.

'I therefore, respectfully urge this court to discharge the accused of all counts in the charge.

In his counter arguments the EFCC counsel, Festus Keyamo, prayed the court to uphold his written submissions in opposition to the no case submission, and call on the accused to enter his defence.

Keyamo submitted that 'Without wasting the time of this court, I will only correct one notion, and that is that the prosecution's case does not concern lodgement, but transactions which took place before the lodgement.

'Transactions which are done without going through financial institutions, is what comes under the definition of money laundering' he said

The prosecutor, therefore, asked the court to uphold the objection of prosecution, and call on the accused to enter his defence.

It will be recalled that the EFCC had closed its case on July 10, while the defence counsel filed a no case submission on behalf of the accused on August 5.

In the charge, the accused was alleged to have transacted with funds exceeding N500, 000 without going through a financial institution.

The accused was also alleged to have accepted cash payments in the tune of about N100 million, while he held sway as Minister of Aviation and Minister of Culture and Tourism respectively.

The offence is said to contravene the provisions of Sections 15(1) (a) (b) (c) (d) and 15 (2) (a) (b) of the Money Laundering (prohibition) Act, 2004.