A Federal High Court in Lagos on Monday partially upheld a no-case submission by Femi Fani-Kayode, and acquitted him of 38 out of 40 counts of money laundering charges.
Fani-Kayode, a former Minister of Aviation, was charged on an amended 40-count charge, bordering on the alleged offence.
He is being prosecuted by the Economic and Financial Crimes Commission (EFCC) over alleged transactions with funds exceeding N500, 000 without going through a financial institution.
Justice Rita Ofili-Ajumogobia discharged and acquitted the accused of 38 counts, while ruling on a no-case submission filed by the defence, on behalf of the accused.
The court, in its judgment, partially upheld the no-case submission of the defence, and then ordered that the accused should enter a defence in respect of counts 25 and 26.
The judge 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 were of a different format.
“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 count.
“The first element would have been satisfied if the prosecution led evidence to show that cash sums exceeding the statutory threshold were handed to a specified third party, which was further, transmitted to a financial system.
“The second element is discharged where the prosecution leads the 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 N1.1 million on 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 lodgments 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.
She adjourned the case to Dec. 8 for continuation of trial.
The News Agency of Nigeria (NAN) reports that the EFCC had opened its case on March 10.
It called a total of six witnesses including: a bank relationship officer, an investigating police officer, a bank legal officer, a public servant, a former aide to the accused, and an operator with the EFCC.
All the witnesses had given various testimonies, as to their relationship with the accused, as well as the manner of investigations conducted on him.
The EFCC closed its case on July 10, while defence counsel filed a no- case submission on behalf of the accused on Aug. 5.
Adopting his submission, counsel to the accused, Ifedayo Adedipe, (SAN) had urged the court to discharge the accused on the ground that no case had been made out against him to warrant opening a defence.
Meanwhile, the prosecutor, Festus Keyamo, had argued that the offence with which the accused was charged, bordered on transacting with funds above the stipulation in the money laundering Act.
He had, therefore, submitted that it was important for the accused to enter a defence to the charge against him, and urged the court to so hold.
NAN recalls that Fani-Kayode was first arraigned sometime in December 2008 before Justice Ramat Mohammed on a 47-count charge.
He had pleaded not guilty to the charge and Justice Mohammed had granted him bail in the sum of N200 million with two sureties in like sum.
He was re-arraigned before Justice Binta Murtala-Nyako, following the transfer of Mohammed from the Lagos Division.
The accused was again re-arraigned before Justice Ajumogobia on Feb. 11, 2013. after the transfer of Justice Murtala-Nyako.
He was again re-arraigned before Ajumogobia on March 6, following the amendment of the 47-count charge to 40-counts, the EFCC having dropped seven of the counts.
Ajumogobia is the third judge to be ceased of the case in the last five years.
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 was Minister of Aviation and Minister of Culture and Tourism respectively.