Dauda SulaimanThe Federal High Court (FHC) in Abuja, on Wednesday, admitted six statements made by Ali Bello, the Chief of Staff (CoS) to Kogi State Governor Usman Ododo, in the alleged N10 billion money laundering trial.
The trial judge, James Omotosho, also admitted two of such extrajudicial statements written by Mr Bello’s co-defendant, .
Mr Omotosho admitted the eight statements as exhibits after dismissing the objections of the two defendants to their tendering by the Economic and Financial Crimes Commission (EFCC).
The judge held that the EFCC complied with the provisions of Sections 15 (4) and 17 (2) of the Administration of Criminal Justice Act (ACJA), 2015, in obtaining the statements in dispute.
“Consequently, the statements of the defendants are admissible in evidence as they were made voluntarily,” the judge ruled.
The News Agency of Nigeria (NAN) reports that the EFCC is prosecuting Mr Bello, a nephew of the immediate-past Kogi State Governor Yahaya Bello, and Mr Sulaiman, on 16 counts of misappropriation and money laundering involving N10.27 billion in public funds.
They allegedly committed the offences during the administration of former Governor Bello, who is himself facing prosecution in two separate corruption cases before Federal High Court in Abuja and the FCT High Court. EFCC accused the former governor of diverting N80.2 billion in Kogi State’s funds in the case before the Federal High Court and N110 billion in the other case before the FCT High Court.
The younger Bello, who currently serves as the Chief of Staff to the incumbent Kogi State Governor, Mr Ododo, also faces another money laundering case in which he is accused of diverting N3 billion. Both cases relate to his activities during former Governor Bello’s administration.
In the course of the N10.27 billion money laundering trial, Mr Bello and his co-defendant had told the court that the extra-judicial statements sought to be tendered by EFCC as evidence against them were made under duress.
The statements attributed to Mr Bello were dated 29 November 2022; 30 November 2022; 1 December 2022; 10 December 2022; 11 December 2022 and 12 December 2022.
Those of Mr Sulaiman bore the dates 30 November 2022 and 1 December 2022.
On 16 February, defence lawyers, Abubakar Aliyu and Olusegun Jolaawo, both Senior Advocates of Nigeria (SANs), objected to the move by EFCC’s lawyer, Rotimi Oyedepo, also a SAN, to tender the eight statements as exhibits while leading Ahmed Audu Abubakar, the 17th prosecution witness in evidence.
Mr Aliyu, who appeared for Mr Bello, insisted that the six statements made by his client were not made voluntarily. Similarly, Mr Sulaiman’s lawyer, Mr Jolaawo, told the court that his client was threatened by the commission’s operatives who took his two statements.
However, Mr Oyedepo disagreed with the defence’s submissions, arguing that most of the statements were obtained in the presence of their lawyer, Z. E Abbas.
Trial-within-trial
The judge then ordered a trial-within-trial and directed Mr Abubakar, the 17th prosecution witness, to give evidence in the trial-within-trial.
After the anti-graft agency called three witnesses for the sideshow trial, Messrs Bello and Sulaiman opened their case.
However, Mr Bello only tendered the certified true copies (CTCs) of a judgement and an enrolled order of the Kogi State High Court in his defence of allegations that the extra-judicial statements made were not voluntarily obtained by EFCC operatives. He did not testify or call any other witness to give oral testimony.
But Mr Sulaiman testified as a defence witness and narrated how he was drafted into the case.
After the parties adopted their written addresses in the trial-within-trial, Justice Omotosho fixed today for ruling.
Ruling
Delivering the ruling, the judge observed that the EFCC’s witnesses denied threatening the defendants while obtaining their statements and that the statements were not confessional as the defendants denied some allegations in the statements.
He equally observed that Mr Sulaiman, who testified in the trial-within-trial, though alleged that the officers threatened him with electric chair, the judge said during his cross-examination, he stated that he never saw any electric chair where the statement was being taken.
The judge observed that Mr Sulaiman confirmed that a lawyer named Z.E Abbas “actually endorsed on the statements that they were made in his presence.”
He said the defendants did not deny that they were the ones who wrote the statements themselves, but that their only grouse was that they were threatened to make the statements.
Mr Omotosho held that the defendants ought to have called the lawyer, Mr Abbas, to give evidence in the trial-within-trial.
He said their failure to call the lawyer was a fundamental error.
“Now, the said Z.E Abbas Esq. is a known person and has appeared for the defendants in this matter.
“For the defendants to succeed on their claims that the statements were not made voluntarily, they ought to call Z.E Abbas Esq. to testify.
“The defendants failed to call Z.E Abbas Esq. This failure raises the presumption that the evidence of Z.E Abbas would have been against their interest if they had called him.
“This omission by the defendants raises a presumption of withholding evidence under Section 167 of the Evidence Act, 2011.
“Apart from being a case of withholding evidence, the defendants’ failure to call their counsel, Z.E Abbas Esq., is an admission of the evidence of the prosecution that the statements were obtained voluntarily.
“The 2nd defendant (Mr Sulaiman) even testified to the credibility of Z.E Abbas Esq., stating that he is a truthful person and that he agrees with whatever he says,” the judge said.
The judge also agreed that the statements made by Bello on 30 November 2022, 1 December 2022, and 12 December 2022 in the presence of Mr Abbas were all made voluntarily.
He said there is credible proof that the said statements were made voluntarily without more.
“For the other statements of the 1st defendant (Mr Bello), the evidence of prosecution witnesses remains credible and there are no indications on the face of the statements that the 1st defendant was forced or threatened to make the statements.
“The 1st defendant (Mr Bello) in his statements also used words like ‘I don’t know’ and ‘I can’t recall’.
“This court finds it hard to believe that the EFCC officers threatening the 1st defendant to make favourable statements would allow him to use such words.
“Those words essentially change the nature of those statements to ‘non-confessional’ statements as they were not direct and unequivocal about admitting the allegations against him,” the judge said, citing previous Supreme Court’s decision.
Mr Omotosho said from the foregoing, Bello “was not forced to admit anything and thus this court holds that the said statements were made voluntarily and no force or torture or promise was applied on the 1st defendant in the making of the statements.
“This court found out that just as the prosecution witnesses testified, cautionary words were administered to the defendants and they signed same.
“In fact, the cautionary words stated that they were not obliged to say anything as anything they said may be used against them in evidence.
“This has fulfilled the procedure in taking voluntary statements.
“Thus, the statements were made voluntarily without any coercion or involuntariness.
“Without more, this would make the statements admissible in evidence” he said.
The judge equally dismissed the defence argument that the statements did not comply with provisions of Sections 15(4) and 17(2) of ACJA, 2015, in that there was no video recording of the statement taking.
“A closer look at the provisions of Section 15(4) and 17(2) show that these provisions only apply where the statement is a confessional statement.
“This means that it would not apply to all manner of statements but the ones that are confessional in nature.
“As held earlier, the statements themselves are not confessional in nature as the defendants did not admit to the commission of the offences alleged against them.
“The defendants in their statements used words like ‘I can’t recall’ and ‘I don’t know.’
“These words or phrases imply that they do not admit to the allegations.
“A statement needs to be direct, unequivocal and must be an admission for it to be confessional in nature.
“This is the whole essence and meaning of confession under Section 28 of the Evidence Act, 2011.
READ ALSO: N10bn Fraud Trial: Court rule on voluntariness of statements of Kogi governor’s CoS, co-defendant
“These statements, being non-confessional, do not fall within the purview of Sections 15(4) and 17(2) of the ACJA, 2015.
“Consequently, this court will not subject the statements through those provisions.
“In final analysis, the statements of the defendants are admissible in evidence as they were made voluntarily and are non-confessional statements to be subject to the provisions of ACJA, 2015,” he ruled.
Mr Omotosho, therefore, admitted the six statements made by Bello as “Exhibits R to R5” and admitted the two statements made by Suleiman as “Exhibits S and S1. ”
The judge, who adjourned the matter until 21 and 24 April for the prosecution to close their case. He threatened that if the EFCC fails to come with all their witnesses, its case would be deemed closed.
(NAN)