The Federal High Court sitting in Lagos has admitted in evidence, a statement made by a former Personal Assistant to ex-Minister of Defence, Senator Musiliu Obanikoro, the late Justin Erukaa.
The trial judge, Justice Mojisola Olatoregun, ruled that the statement was admissible in law.
Obanikoro was testifying for the Economic and Financial Crimes Commission, EFCC, in the trial of the immediate past Governor of Ekiti State, Ayo Fayose.
Lawyer for Spotless Limited, Fayose’s co-accused, Olalekan Ojo SAN, had during proceedings on February 7, urged the judge to admit the statement in evidence.
He said the statement was relevant to the case because Erukaa made it in the course of EFCC’s 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 $1million and that he came to meet him in Ekiti.
“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.
However, the prosecuting lawyer, Rotimi Jacobs opposed Ojo’s bid to tender the statement, arguing that it was not admission in law.
He said the sections relied on by Ojo were not application in the circumstances.
But the judge overruled Jacobs, holding that Sections 39 and 49 of the Evidence Act make such a document admissible.
She said the issue was what weight the court would attach to the statement, which was for the court to determine.
Fayose is on trial for allegedly receiving and keeping N1.2billion and $5million allegedly stolen from the Office of 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.
Under cross-examination yesterday, Obanikoro reiterated that there were no records of the money sent from ONSA.
“We’re dealing with security issues. It can be called anything just to protect the transactions. They can be characterised as anything,” he said.
He said there was no contract awarded before the fund was transferred, adding that he supervised Sylvan Mcnamara Ltd’s account from which the fund was disbursed.
He said funds paid into the account were for the security of Lagos, and for election purposes in Ekiti and Osun states.
“I only took supervisory responsibility of the account during the transactions for Lagos, Ekiti and Osun.
“No contract was signed. Matters of election can be matters of security. Political matters can also be security-related,” Obanikoro said.
Asked if he would be surprised that the ONSA denied paying N2.2billion to Sylvan Mcnamara’s account, Obanikoro said: “I won’t be surprised.”
EFCC said Fayose and Biodun Agbele, who is facing a different charge, allegedly took possession of N1, 219,000, 000 on June 17, 2014 to fund the former governor’s 2014 gubernatorial 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 claimed that Fayose, on the same day, received cash payment of $5million from Obanikoro, without going through a financial institution, the sum having exceeded the amount authorised by law.
Fayose, however, pleaded not guilty.