Fireworks In Court As Fani-Kayode’s Absence Stalls Trial

Justice Muslim Sule Hassan of the Federal High Court in Ikoyi, Lagos on Monday adjourned the criminal trial of former spokesman for the Goodluck Jonathan campaign organization in the 2015 presidential election, Mr. Femi Fani-Kayode, and three others to December 12th, 2016, due to the defendant’s absence in court. 

Former Finance Minister Nenadi Esther Usman, Mr. Fani-Kayode and one Danjuma Yusuf Usman, along with a limited liability company, Joint Trust Dimension Nigeria Limited, were arraigned before Justice Hassan by the Economic and Financial Crimes Commission (EFCC), on a 17-count charge of unlawful retention, unlawful use and unlawful payment of money to the tune of about N4.9 billion. They all pleaded not guilty to the charges.

Mr. Fani-Kayode’s absence led to a heated argument between the prosecutor and defense counsel, who insisted the EFCC undermined the order of Justice Hassan by re-arresting and detaining his client who was already on bail by a court order.
The defendant, who is also a former Minister of Aviation, was on October 21st re-arrested by the EFCC at the Federal High Court premises in Lagos. He was then held at the Commission’s detention centre in Abuja and arraigned on a separate five-count charge of N26 million fraud before Justice James Tsoho of the Federal High Court in Abuja.
Wale Balogun, lawyer to Mr. Fani-Kayode, who is second defendant in the trial, informed the court that his client was wrongfully detained by the EFCC for 21 days before he was finally arraigned in Abuja on the new charge. He said the re-arrest and detention of his client was wrong and a spite on the court that had granted him bail on another matter brought by the EFCC.
The lawyer said Mr. Fani-Kayode was arrested by the EFCC without an arrest warrant and transferred to Abuja without proper notification, adding that during the 21 days he was held in custody, no one told him anything as to why he was held in detention.
“He was arrested without an arrest warrant, then taken to the prosecutor’s office where he was kept till 5p.m. When I asked for his arrest warrant, we were told that it was on order from above. We were also told it was ordered from above that he be transferred to Abuja,” Mr. Balogun told the court.
According to him, Mr. Fani-Kayode could not appear before the court in Lagos because his bail terms had yet to be perfected. He said the defendant’s relatives are trying all they can to ensure his release from Kuje prison, lamenting that the Abuja court prescribed stiff bail terms for his client because of lies the prosecutor told against him.
“Though we urged the court to let him enjoy the former bail conditions, and despite informing the court that he has to be before this court today for his trial, the court in its wisdom still imposed another condition, and he has been transferred to Kuje Prison, while both the family and friends are making frantic efforts to perfect his bail."
Mr. Balogun also said no law supports that once a charge has been served, detention must follow.
The lawyer to the EFCC, Mr. Rotimi Oyedepo, however, said there was nothing wrong in Mr. Fani-Kayode’s re-arrest and detention. He argued that the matter he was re-arrested for was totally different and had no connection with the current trial.
The prosecutor told the court: “I do not see anything wrong either in law or morality that prevents the EFCC from preferring the charge against the defendant. Since the second defendant has allegedly dipped his hands in another transaction that contravenes the law, the commission has the power to charge him and bring him to trial.”
He said the EFCC resorted to arresting Mr. Fani-Kayode at the court premises because he had evaded all attempts to serve him the new charge. He assured the court that the re-arrest was not to spite its orders, and urged the judge to disregard the defense counsel’s attempt to make the arrest seem like an affront to the order of the court.
“In relation to the charge before this court, he never reported any infraction on his rights. The case before this court was committed and investigated in Lagos before he was arraigned before this court. His subsequent arrest and detention was not intended to disobey the court order, but it was in the view to serve him with the charge for the purpose of arraigning him before another court. He was not arrested in connection with this case,” Mr. Oyedepo argued.
The judge, interjecting in the argument, said the defendant’s re-arrest within the court premises and his detention for 21 days after he had been granted bail was a flagrant disregard of the court order. He added that the EFCC ought not to have kept him in detention.
Mr. Oyedepo told the judge: "In view of the absence of Mr. Fani-Kayode, the trial will not likely go on despite having the four Prosecution witnesses in court.” He, therefore, asked the court for a very short adjournment.
Lawyers to other accused persons, Chief Ferdinand Orbih, and S. I. Ameh, both Senior Advocates of Nigeria (SANs), did not oppose the request for adjournment.
Mr. Orbih, who is lawyer to the first defendant, particularly asked the court for a long adjournment on the ground that it was not certain how long it would take before Mr. Fani-Kayode meets the bail conditions in the new charge.
He also told the court of an application seeking the transfer of the charge to Abuja Division of Federal High Court, though he said the application was not ripe for hearing, and that same has been served on the prosecution. He stated that the present forum is not convenient, and that it is within the confines of the law to seek the case’s transfer. Besides, he noted, all transactions forming the subject matter of the trial transpired in Abuja.
But the prosecutor, Mr. Oyedepo, while urging the court not to grant Mr. Orbih’s application for long date, said the trial of accused persons in a criminal matter according to the Administration of Criminal Justice Act (ACJA) should be day-to-day, and if there is reason for adjournment, such adjournment should not be more than 14 days.
The presiding judge, Muslim Hassan, adjourned the matter at the instance of the EFCC till December 12, 2016, for hearing of the pending application and continuation of trial.
Mr. Ameh, lawyer to the third defendant, accused Mr. Oyedepo of defending the indefensible. He told the lawyer to EFCC that within the court premises, he ceased to be an employee of the commission but an officer of the law.
The defence counsel advised the EFCC to also follow due process in prosecution. He added that there are better means the anti-graft agency could have used in getting the second defendant served rather than the obvious disregard for rule of law and due process.
Giving his ruling on the adjournment date, the judge said he would refrain from making comments on the way the re-arrest was done so as not to prejudice the first defendant’s application. He adjourned the trial to 12th of December.
In the charge, the accused persons were alleged to have committed the offences between January and March 2015.
In counts one to seven, they were alleged to have unlawfully retained over N3.8 billion, which they reasonably ought to have known formed part of the proceeds of an unlawful act of stealing and corruption.
In counts eight to fourteen, the accused were alleged to have unlawfully used over N970 million, which they reasonably ought to have known formed part of an unlawful act of corruption; while in counts fifteen to seventeen, Mr. Fani-Kayode, together with one Olubode Oke who is said to  be at large, were alleged to have made cash payments of about N30 million – more amount than is allowed by law without going through a financial institution.
Additionally, Mr. Fani-Kayode was alleged to have made payments to one Paste Poster Company (PPC) of 125 Lewis Street, Lagos, a sum greater than what is allowed by law.
The offenses alleged to have been committed by the accused persons contravened the provisions of Sections 15 (3) (4), 16 (2) (b), and 16 (5) of the Money Laundering (Prohibition) (Amendment) Act, 2012.