IN THE HIGH COURT OF FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT MAITAMA ABUJA
BEFORE HIS LORDSHIP: HON. JUSTICE JUDE OKEKE
ON WEDNESDAY THE 5TH DAY OF APRIL, 2017
SUIT NO: FCT/HC/CR/21/2016
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA………………COMPLAINANT
AND
(1). ADENIYI FRANCIS ADETOKUNBO ADEMOLA
(2). OLABOWALE TOLUWATOPE ADEMOLA …..DEFENDANTS
(3). JOE ODEY AGI
RULING
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By an Amended Information filed on 31st January, 2017 and further amended on 8th February, 2017, the Defendants were arraigned in this Court on an 18-Count Charge which can, for ease of reference, be summarised as follows: –
COUNT ONE:
The Defendants between 11th March 2015 and 26th March 2015 within the Courts jurisdiction conspired to influence the 1st Defendant in the course of his official functions as a Judge of the Federal High Court with a sum of N30, 000, 000.00 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
COUNT TWO:
The three Defendants between 11th March 2015 and 26th March 2015 within the jurisdiction of the Court influenced the 1st Defendant in the course of his official functions as a Judge of the Federal High Court with a sum of N30, 000, 000.00 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
COUNT THREE:
The 2nd Defendant between 11th March, 2015 and 26th March 2015 within the jurisdiction of the Court corruptly obtained on behalf of the 1st Defendant the sum of N10, 000, 000.00 from the 3rd Defendant under the name of Messrs Joe Agi and Associates through his bank account domiciled with GT Bank PLC as gratification in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT FOUR:
The 2nd Defendant between 11th March 2015 and 26th March, 2015 within the jurisdiction of the Court obtained on behalf of the 1st Defendant the sum of N10, 000, 000.00 from the 3rd Defendant practising under the name of Messrs Joe Agi and Associates through his bank account domiciled with GT Bank Plc as gratification in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT FIVE:
The said 2nd Defendant between 11th March 2015 and 26th March 2015 within the jurisdiction of the Court corruptly obtained on behalf of the 1st Defendant the sum of N10, 000, 000.00 from the 3rd Defendant practicing under the name of Messrs Joe Agi and Associates through his Bank Account domiciles at GT Bank Plc as gratification in the exercise of his official functions as as a Judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT SIX, SEVEN AND EIGHT:
The 3rd Defendant practising under the name of Joe Agi & Associates between 11th March, 2015 and 26th March 2015 within the jurisdiction of the Court offered the 1st Defendant through the 2nd Defendants bank account domiciled at GT Bank Plc three sums of N10, 000, 000.00 as gratifications in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 18(d) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT NINE:
The 3rd Defendant practising under the name of Joe Agi & Associates on or about 15th January, 2015 within the jurisdiction of the Court corruptly gave the 1st Defendant a gift of a BMW Saloon 320i valued at N8, 500, 000.00 through his son Ademide Ademola as an inducement in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(b) of the Corrupt Practices and Other Related Offences Act 2000.
COUNT TEN:
The 1st Defendant on or about 7th October, 2016 within the jurisdiction of the Court in his capacity as a public servant held in his possession the sums of N54, 000, 000.00 $121, 279, 4, 400 Euros, £80 and 1, 010 Rupees being gratifications received in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 24 of the Corrupt Practices and Other Related Offences Act 2000.
COCOUNT FIFTEEN:UNTS ELEVEN AND TWELVE:
The 1st Defendant on 24th February, 2014 within the jurisdiction of the Court in his capacity as a public servant transferred the sums of N85, 000, 000.00 and N90, 000, 000.00 from his Account Bank domiciled at Guarantee Trust Bank to Franco Dan Parks which sums form the proceeds of unlawful acts and thereby committed an offences contrary to Section 24 of the Corrupt Practices and Other Related Offence Act 2000.
COUNT THIRTEEN:
The 1st Defendant on 21st February, 2014 within the jurisdiction of the Court in his capacity as a judicial official attempted to obtained gratification in the sum of N25, 000, 000.00 from one Sani Shaibu Teidi as a motive for showing favour in the exercise of his official functions contrary to Section 115(b) of the Penal Code Act Cap 532 FCT 2007.
COUNT FOURTEEN:
The 1st Defendant on 5th January, 2015 within the jurisdiction of the Court in his capacity as a public servant corruptly received from the 3rd Defendant practising under the name of Joe Agi & Associates a BMW Saloon 320i Valued N8, 500, 000.00 through his son Ademide Ademola as gratification in the exercise of his official functions as a Judge of the Federal High Court and thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000.
The 1st Defendant on or about 7th October, 2016 within the jurisdiction of the Court had in his possession one Pump Action riffle with serial number AVAR MAGNUM 6084 without a valid licence and thereby committed an offence contrary to Section 3 of the Robbery and Firearms (Special Provisions Act) 2004.
COUNT SIXTEEN:
The 1st Defendant on or about 7th October 2016 within the jurisdiction of the Court had in his possession one Pump Action riffle with serial number 6284 without a valid licence and thereby committed an offence contrary to Section 3 of the Robbery and Firearms (Special Provisions Act) 2004.
COUNT SEVENTEEN:
The 1st Defendant on 7th October 2016 within the jurisdiction of the Court had in his possession 35 rounds of live ammunition (cartridges) without a valid licence and thereby committed an offence contrary to Section 8 of the Firearms Act, Cap F28 LFN 2004.
COUNT EIGHTEEN:
1st Defendant on or about 10th October, 2016 within the jurisdiction of the Court gave false information to Babatunde Adepoju (an operative of the Department of State Services in his Written Statement) that one Pump Action Riffle and cartridges belonged to Hon. Justice A. R. Mohammed a serving Judge of the Federal High Court Abuja which information was tended to mislead the DSS Operative in the discharge of his duties and thereby committed an offence contrary to Section 140 of the Penal Code Act Cap 523 Laws of the FCT 2007.
Each of the Defendants pleaded not Guilty to the Counts of the charge against him/her as stated above.
Following the Order for accelerated trial made by the Court on 9th January, 2017 sequel to the 1st Defendants application of 16th December, 2016, the case proceeded to trial on 16th January, 2017. The Prosecution in aid of its case called a total of 19 witnesses who were identified as Pw1 to Pw19.
Save for Pw4, Pw5 and Pw12 who did not testify on oath and were called to produce documents upon subpoena and so were not cross examined, all the other witnesses testified on oath and were duly cross examined by the learned Defendants Counsel.
On the whole, the Prosecution witnesses tendered documents/items which were admitted in evidence as Exhibits A to ZZZ.
At the close of the Prosecutions case on 21st February, 2017, the learned Counsel for the Defendants informed the Court of their intention to file No Case to Answer Submissions on behalf of the Defendants.
The parties were then given time frames within which to file and exchange Written Addresses in that regard which they did. They adopted the Addresses in Court on 15th March, 2017. Ruling was then reserved for today 5th April 2017.
I have carefully read the said Written Addresses of the Counsel for the parties vis-a-vis the evidence adduced by the Prosecutions witnesses. Reference will be made to the Addresses as the need arises.
The cardinal issue that calls for determination is whether or not the Prosecution has made out a case as required by law to justify refusing the Defendants respective No Case to Answer Submissions and calling upon them to put up their defence(s) with regard to any or all the Counts of the Information.
The Administration of Criminal Justice act 2015 (ACJA) has made provisions which guide No Case to Answer Submissions in Sections 302, 303 and 357. Section 302 provides thus: –
“The Court may, on its own motion or an application by a Defendant after hearing the evidence for the Prosecution, where it considers that the evidence against the Defendant or any of several Defendants is not sufficient to justify the continuation of trial, record a finding of not guilty in respect of the Defendant without calling on him or them to enter his or her defence and the Defendant shall accordingly be discharged and the Court shall then call on the remaining Defendant, if any, to enter his defence.
In Sections 303(1) to (3) it is provided that: –
(1). Where the Defendant or his legal Practitioner makes a No Case to Answer Submission in accordance with the provisions of this Act, the Court shall call on the Prosecutor to reply.
(2). The Defendant or his legal Practitioner has the right to reply to any new point of law raised by the Prosecutor, after which, the Court shall give its ruling.
(3). In considering the application of the Defendant under Section 303, the Court shall, in the exercise of its discretion, have regard to whether:
(a). An essential element of the offence has been proved;
(b). There is evidence linking the Defendant with the commission of the offence with which he is charged.
(c). The evidence so far led is such that no reasonable Court or Tribunal would convict on it; and
(d). Any other ground on which the Court may find that a prima facie case has not been made out against the Defendant for him to be called upon to answer.
Section 357 on its part provides thus: –
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Where at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the Defendant sufficiently to require him to make a defence, the Court shall, as to that particular charge, discharge him being guided by the provision of Section 302 of this Act.
From the foregoing provisions of the ACJA 2015, it is apparent that the Court is essentially to be guided in determining whether or not to uphold the Defendants No Case to Answer Submission, by the guidelines set out under Section 303(3) of the ACJA.
In other words, the Court is to determined whether or not by the evidence adduced by the Prosecution witnesses, it can in the exercise of its discretion hold that the evidence discloses or has proved: –
(1). an essential element of the offence.
(2). link between the Defendant and the commission of the offence.
(3). the evidence is such that so reasonable Court or tribunal would convict on it; and
(4). any other ground upon which it may find that a prima facie case has been made out against the Defendant for him to be called upon to answer.
Before the coming into effect of the ACJA in 2015, which has now codified the above guidelines, the Courts have in a plethora of cases held that a No Case to Answer submission shall be upheld where:-
(1). The Prosecution has failed to prove an essential element of the alleged offence
(2). The evidence adduced has been so discredited as a result of Cross Examination or
(3). The evidence is so manifestly unreliable that no reasonable tribunal will convict on it.
In IBEZIAKO V COMMISSIONER OF POLICE (1963) 1 ALL NLR P. 61, the Court held that these conditions are not cumulative. Once any one of these conditions exists, the Court on its volition or the defence can validly make a No Case to Answer Ruling or Submission of No Case to Answer.
In AJANI & ORS V R (1936) WACA P.3 the Court held that the submissions of No Case to Answer may be made in respect of one Count of offence of the entire Charge Sheet and where the Charge contain more than one Count of offence, the Court must make a finding on each Count of Offence separately.
Conclusively, the Supreme Court in DABOH V STATE (1977) 5 SC P. 197 held that at the time submission of no case to answer is made, what the Court considers is whether the Prosecution has made out a prima facie case to which the accused would be called to answer. See also: AKPAN V STATE (1986) 5 SC P. 186.
These said, what then does the phrase prima facie case mean? The authors of the Black Law Dictionary (8th Edition), at page 1228 defines it as:
The establishment of a legally required rebuttable presumption. A partys production of enough evidence to allow the fact trier to infer the fact at issue and rule in the partys favour.
In ABACHA V STATE (2002) 7 SCNJ P1, the Supreme Court explained it thus: –
“The evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will to be sufficient to prove the case against the accused.
In ONAGORUWA V THE STATE (1993) 7 NWLR (PT. 303) P. 49 the Court of Appeal explained it in these words:-
A prima facie case is a case where the Prosecution has presented sufficient evidence to render reasonable a conclusion on the evidence that the accused is convictable, in the absence of contrary evidence.
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Now under Section 135 of the Evidence Act 2011, it is provided that if the commission of crime by a party to any proceeding is directly in issue in any proceeding, it must be proved beyond reasonable doubt. By Section 135(2), the burden of proving that any person has been guilty of a crime or wrongful action is on the person who asserts ie the Prosecution.
In a submission of No Case to Answer however, though the burden of proof lies on the Prosecution which asserts the commission of the offence by the Defendant, the burden shall be deemed discharged if the Prosecution by its evidence establishes a prima facie case against the Defendant with regard to the Court of the Charge.
In other words, the Prosecution is not required at this stage to prove the commission of the offence beyond reasonable doubt.
An evidene by it which prima facie links the Defendant with the commission of the offence will suffice for the Defendant to be called upon to put his defence with regard to that Count of the Charge. See: DABOH V STATE supra. Section 303(3)(a) to (d) of ACJA.
The Proseuction must however establish each ingredient of the offence vide prima facie evidence against the Defendant failing which the Defendants No Case to Answer will be upheld. The Court of Appeal made this point in RASAKI V THE STATE (2011) 16 NWLR (PT. 1273) P. 281 when it held thus: –
“Accordingly, where the evidence led by the Prosecution fails to establish a single element…the Prosecution would have failed in its duty to prove the offence charged and the accused would be entitled to an acquittal.
Having set out the basic legal frame work guiding No Case to Answer submission, the Court now proceeds to consider each Count of the Information in relation to the evidence adduced by the Prosecution witnesses to determine whether or not the evidence discloses a prima facie case against the relevant Defendant.
Put in another way, the Court proceeds to determine whether the evidence adduced by the Prosecution witnesses link(s) the relevant Defendant with the offence charged.
In Count 1 of the information, the three Defendants are charged as follows:
Adeniyi Francis Adetokunbo Ademola Adult M, Olabowale Toluwatope Ademola F both of on 32 Samuel Ogbemudia Crescent, Zone E, Apo Abuja and Joe Odey Agi M Principal Partner, Joe Agi & Associates of 1, Villa Street, Ministers Hill, Maitama Abuja, between 11th and 26th March 2015 in Abuja within the jurisdiction of this Honourable Court conspired to influence Adeniyi Francis Ademola in the course of his official function as a Judge of the Federal High Court with a sum of N30, 000, 000.00 and thereby committed an offence contrary to Section 97 of the Penal Code Law.
By these, the three Defendants are charged with Conspiracy to influence the 1st Defendant in the course of his official functions as a Judge of Federal High Court with a sum of N30, 000, 000.00 and by so doing committed an offence contrary to Section 97 of the Penal Code Law.
Section 97 of the Penal Code Act, Cap 532 Laws of the Federal Capital Territory (Laws of FCT) provides thus: –
“97(1). Whoever is a party to a Criminal Conspiracy to commit an offence punishable with death or with imprisonment shall where no express provision is made in this Penal Code for the punishment of such conspiracy, be punished in the same manner as if he had abetted that offence.
(2). Whoever is a party to a Criminal Conspiracy other than a criminal Conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment for a term not exceeding six months or with fine or with both.
By the above provision, it is evident Section 97 of the Penal Code on which Count 1 of the Charge is predicated merely provides for punishment for the offence of Conspiracy. It has not made provision for substantive offence of Conspiracy.
The learned 2nd Defendants Counsel made submissions in this regard. He urged the Court that the implication of hinging that Count of Information on Section 97 of the Penal Code is that there is no charge disclosed in that Count and hence there is nothing for the 2nd Defendant to answer.
The Prosecution in its response (at page 6 paragraphs 2.04 of its Response to 2nd Defendants No Case to Answer submission) conceded that it proceeded to charge the Defendants in this case for Conspiracy to influence the course of justice under Section 97 of the Penal Code because there is no express provision under the Penal Code for that genre of Conspiracy, Conspiracy to influence the course of justice.
Thus while Section 182 provides for the substantive offence of influencing the course of justice there is no specific provision for Conspiracy to influence the course of justice hence the reliance on the omnibus provision in Section 97.
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In his Reply on points of law, the learned 2nd Defendants Counsel referring to the above admission by the prosecution, urged the Court that in the circumstances the complainant lacks the vires to charge a Defendant for an offence that is not tied to any written law.
That doing so contravenes the provision of Section 36(8) of the 1999 Constitution of Nigeria and decision of the Court in AOKO V FAGBEMI (1961) 1 ALL NLR P.400 and RODA V FRN (2015) 10 NWLR (PT. 1468) P. 427. He contended that the issue goes to the competence of the charge and by the provision of Section 396(2) of ACJA.
The 2nd Defendant having taken a plea to the charge has not lost the right to raise an objection or contend she has been misled by the content of the charge contrary to the submissions of the Prosecution Counsel which postulates she cannot object to the charge by virtue of Sections 220 and 221 of ACJA.
The 2nd Defendants Counsel contended this is because the earliest opportunity available to the 2nd Defendant to contend she has been misled by this fundamental defect is at this stage of No Case Submission.
I have given due consideration to the foregoing contentions. As aforesaid, Count 1 of the Charge is predicated on Section 97 of the Penal Code which has not provided for the substantive offence of Conspiracy to commit a Criminal Offence but rather the punishment for it. Section 36(8) of the 1999 Constitution of Nigeria provides thus: –
No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
By the clear words of Section 36(8) of the Constitution no person shall be held guilty of a criminal offence on account of any act or omission that did not at the time it took place constitute such an offence. The case of AOKO V FAGBEMI supra relied upon by the learned 2nd Defendants Counsel held this much.
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By this constitutional provision alone, the Defendants having been charged under Section 97 of the Penal Code for Conspiracy to commit a criminal offence but the Section never provided for same, it can validly be said they have been charged for an offence not provided for under the Section the charge is predicated.
In other words, they have been charged for an offence not recognized or provided for by Section of the law under which they are charged. In the circumstances, Section 36(8) of the Constitution is applicable to render the charge incompetent.
Sections 220 and 221 of the ACJA however attempted to remedy the situation by providing that an error in stating the offence or the particulars shall not be regarded at any stage of the case as material unless the Defendant was in fact misled by the error or omission.
Section 221 prohibits objection being taken or entertained during proceeding or trial on the ground of an imperfect or erroneous charge.
The effect of these section is however rendered impotent by the provision of Section 396(2) of the ACJA which provides that the Defendant may raise any objection to the validity of the charge or the Information at any time before Judgment provided that such objection shall only be considered along with substantive issues and a ruling thereon made at the time of delivery of judgment.
The 2nd Defendants Counsel has contended relying on this Section of ACJA that after she took plea to the charge, the earliest opportunity she has to raise the objection to the validity of the charge is during this stage of No Case to Answer Submission.
I take judicial notice that if this Defendants No Case to Answer Submission succeeds, that will constitute a substantive judgment in this case. The Court is therefore on solid ground in considering the objection at this stage of the case.
To the extent that the 2nd Defendant has raised this objection after plea and before Judgment in the case and the Court considers same in this Ruling, the objection is competent within the contemplation of Section 396(2) of ACJA. T
he Prosecution Counsels contention that by taking plea the 2nd Defendant waived her right to object to the validity of that Count of the charge cannot stand in the light of the timing of the objection vis-a-vis the window provided by Section 396(3) of the ACJA.
The Court having earlier found that the Count 1 of the charge is predicated on a law that has not provided for an offence hence the alleged conduct of conspiracy does not constitute an offence under the Section of the Penal Code it is predicated in violation of Section 36(8) of the Constitution and, given that procedurally, the raising of the objection at the time it was done is permitted by Section 396(2) of the ACJA, the Court holds this objection is made out.
In effect the Court holds Count 1 of the Information cannot stand. Being in violation of Section 36(8) of the Constitution, it is struck out. The three Defendants having been charged on it, are discharged on that Count.
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Assuming but without holding Count 1 of the charge is valid and the Defendants were validly charged for the offence of Criminal Conspiracy under Section 97 of the Penal Code, and that the substantive offence of Criminal Conspiracy under the Penal Code is created by Section 96 of the law (though the Defendants were not charged thereunder), Section 96(1) provides thus: –
“When the two or more persons agree to do or cause to be done-
(a). An illegal act; or
(b). An act which is not illegal by illegal means, such an agreement is called a Criminal Conspiracy.
Under Section 96(2) it is provided that: –
Notwithstanding the provisions of Subsection 1, no agreement except an agreement to commit an offence shall amount to a Criminal Conspiracy unless some act besides the agreement is done by one or more parties to such an agreement in pursuance thereof.
The learned author, S. S. Richardson, at page 58 of his book NOTES ON THE PENAL CODE LAW prescribes that the ingredients of the offence of Criminal Conspiracy which the Prosecution ought to prove are: –
(i). An agreement between two or more persons to do or cause to be done some illegal act, or some act which is not illegal by means.
(ii). Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(iii). Specifically that each of the accused individually participated in the Conspiracy.
I had earlier set out the Count 1 of the charge as contained in the Information. The ingredients of the offence which the Prosecution is under a duty to establish vide prima facie evidence are: –
(1). An Agreement between two or more of the Defendants between 11th March 2015 and 26th March, 2015.
(2). The Agreement was reached in Abuja (within jurisdiction).
(3). The Agreement was to do an illegal act ie influence the 1st Defendant in the course of his functions as a Judge of Federal High Court with a sum of N30, 000, 000.00.
(4). One or more of the Defendants carried out the illegal act in furtherance of the agreement.
Not what is the evidence of the Prosecution with regard to these ingredients of the offence. The evidence is interwoven with those relating to the other Counts of the charge.
I will review the evidence of witnesses which had to do with alleged payment of N30, 000, 000.00 to the 1st Defendant which is the mainstay of the Prosecutions case.
The first witness who testified in this regard is Pw8- Mr. Testlim Adekunle Ajuwon who identified himself as the Compliance Officer of Zenith Bank Plc. He tendered the 3rd Defendants Zenith Bank Mandate form as Exhibit L and Statement of Account of Joe Agi & Associates for the period 15th February, 2008 to 31st October, 2016 as Exhibit M.
He stated that on 11th March, 2015, 16th March, 2015 and 26th March, 2015 there were a nip (acronym for Nigeria Electronic Fund Transfer Instant Payment) credit of N10, 000, 000.00 for each of the dates in favour of the 2nd Defendant in her Guaranty Trust Bank Account from Joe Agi & Associates.
Under cross examination by the learned 1st Defendants Counsel he testified inter alia, that it is correct that the three sums of N10, 000, 000.00 were credited into the beneficiarys branch in the beneficiarys bank.
Under cross examination by the 2nd Defendants Counsel he said inter alia, when shown Exhibit M that it is the Statement of Account of Joe Agi & Associates. He knows the difference between N30, 000, 000.00 and N10, 000, 000.00.
He has read the entries in the Exhibit for 2015. There is no transfer of the sum of N30, 000, 000.00 from Joe Agi & Associates to the 1st Defendant. There is no transfer of that sum to the 2nd Defendant.
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He does not know the purpose of the transaction of 26th March, 2015 in the Exhibit with regard to the transfer of N10, 000, 000.00. He does not know the purpose of any transfers in Exhibit M. He does not see any commission of a crime on the face of Exhibits K, L, and M. He can see the three Defendants in Court. He does not know of any commission of crime by any of them.
The Pw9 Suky Ambrose on her part, in evidence in chief tendered as Exhibit Q a photocopy of an undated GT Bank Statement of Account of an unidentified Account Holder for the period 27th February, 2015 and ending on 7th April, 2015.
She stated Exhibit Q is the Statement of Account of the 2nd Defendant. There are three entries in the Exhibit on 11th March, 2015. The first is a credit inflow of N10, 000, 000.00 from Joe Agi & Associates.
Likewise for that of 16th March, 2015 and 26th March, 2015. Looking at the statement, apart from the names stated as the sender, she did not see where the transfers came from. This is because it is electronic banking which does not give room for location of transaction.
Under cross examination by the 1st Defendants Counsel, she stated inter alia, that the 2nd Defendant in Exhibit P was the 2nd Defendant. She was the Permanent Secretary of Lagos State Government and resided at No. 51 Oduduwa Crescent, GRA, Ikeja Lagos.
Under cross examination by the 3rd Defendants Counsel, she stated inter alia, that Exhibit Q which was shown to her does not show the account number and name of the customer. There was no transfer of the lump sum of N30, 000, 000.00 in it from the Joe Agi & Associates to the 2nd Defendant.
She does not know the purpose of the N10, 000, 000.00 transaction of 11th March, 2015 in Exhibit Q. There was no transfer of any funds from Exhibit Q to the 1st Defendant from 11th March, 2015 to 26th March, 2015.
The next witness was Mr. Malik Olatunde who testified as Pw10. He tendered the original copies of Statement of Account of the 1st Defendant issued by GT Bank for the period 7th January, 2013 to 24th November, 2015 as Exhibit T.
Under cross examination by the 1st Defendants Counsel, he stated, when shown Exhibit T that he cannot find in it any credit of N30, 000, 000.00 from the 2nd Defendant. Likewise for N10, 000, 000.00.
The Pw15 (Mr. Steven Opara) testified inter alia in chief that the 2nd Defendant was not the initial suspect. They involved her because there were certain things in her account which they analyzed and they needed clarification.
The issues include the payment into her account in three tranches of N10, 000, 000.00 by Joe Agi in March 2015. When asked about her sources of income, she revealed same and mentioned her late fathers estate as one of her main sources of income.
Her written statement was tendered through the witness as Exhibit NN.
Under cross examination by the 1st Defendants Counsel she said he was not the Investigating Police Officer in the matter.
Mr. Babatunde Adepoju who testified as Pw16 testified inter alia in evidence in chief that he investigated the 1st Defendant over allegations of misuse of judicial powers, corrupt practices, bribe taking and recoveries of incriminating materials from his official quarters. He tendered the 1st Defendants handwritten statement made to him as Exhibit QQ.
He stated also that he obtained and scrutinized the 1st and 2nd Defendants bank Accounts details. He invited some depositors into these accounts.
As a follow up to his lead, he investigated the 2nd Defendants Account with Guaranty Trust Bank ie payments made into it. The particular transaction that caught his attention was the lodgement made in three tranches of N10, 000, 000.00 by Joe Agi in total sum N30, 000, 000.00. While the 1st payment was on 11th March 2015, the second was on 16th March, 2015 and the last on 26th March, 2015.
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On his further investigation on the connection between the 1st and 3rd Defendant in which he tried to establish if the latter had cases pending or concluded before the 1st Defendant he discovered he has had cases before him.
Two among these cases that raised eyebrows were the cases of ALGON V FEDERAL GOVERNMENT OF NIGERIA and that of FRIDAY UKPONG V THE CHIEF OF NAVAL STAFF. These two cases involved huge sums of money as claim with the 3rd Defendant as the lawyer. These cases emanated from Calabar, the 1st Defendants previous posting.
In the ALGON case, three Garnishee Orders nisi were granted by the 1st Defendant in favour of Barrister Joe Agis client ie LINAS INT. LTD. The 1st Garnishee Order granted was in excess sum of N637M dated 20th February, 2015.
The second in excess of $637M dated 27th March, 2015 and a day after the last tranch of N10, 000, 000.00 was paid into the 2nd Defendants account. The case was filed, heard and granted on the same 17th March, 2015. The last Garnishee Order in favour of LINAS INT. LTD case was in excess of $3.1Billion.
Also in the Friday Ukpongs case, the Garnishee Order in the sum of N350, 000, 000.00 was granted by the 1st Defendant in favour of Barrister Joe Agis client.
Tying these payments made by Barrister Joe Agi to cases before the 1st Defendant, the 1st Garnishee was granted in February, 2015 shortly after Barrister Joe Agi presented a car gift of about N8.5M to the 1st Defendants son Ademide. And the last tranch of N10, 000, 000.00 paid into the 2nd Defendant Account on 26th March, 2015 a day before another Garnishee Order nisi in excess of N637M.
And the last Garnishee Order nisi in the sum of $3.1Billion just five days after the last tranch of N10, 000, 000.00 was paid into the 1st Defendant.
The Orders and payments caught his attention because the Court processes were filed in Calabar in the 1st Defendants Court with Barrister Joe Agi as lawyer in the two cases. And after the 1st Defendants transfer to Abuja, these cases still surfaced in his Court in Abuja.
Certified true copy each of six Court processes in Suit No: FHC/CA/CS/11/08: MR. FRIDAY UKPONG V CHIEF OF NAVAL STAFF NIGERIA ARMY were admitted through the bar through the Prosecution Counsel as Exhibits VV to VV5 respectively.
Three certified true copies of Garnishee Orders in Suit No: FHC/ABJ/130/2013: LINAS INTL LTD & 3 ORS V FEDERAL GOVERNMENT OF NIGERIA & 3 ORS were also admitted as Exhibits WW to WW2 respectively.
Dwelling further, the witness testified that he confirmed the payments made by Barrister Joe Agi into the 2nd Defendants Account and the dates. Though he did not take the 2nd Defendants statement but she said she barely knows Barrister Joe Agi.
Contrary to this, Barrister Joe Agi in his statement admitted he has known her for over 15 years and he made the payments into her account given his position as sub-committee chairman in Abuja for the Planning of the 1st Defendants daughters wedding that took place around April 2015.
When he interviewed Barrister Joe Agi, he said he has known the 1st Defendant since 2000 when they were active members of their respective State Chapters of NBA and after his elevation to the Bench their friendship metamorphosed into brotherhood. That he is a family friend to the Ademolas and their lawyer.
He made a statements which were admitted as Exhibit XX.
After writing his statement, he invited the 3rd Defendant to comment on further leads that arose on the payments made into the 2nd Defendants account. He (the 3rd Defendant) asserted that the monies were as a result of instruction received from two of his clients Mr. Ken Hubert and Mr. Bassey Bassey.
The latter instructed him to donate the sum of $150, 000 in support of the Ademolas during their daughters wedding. These two persons were introduced to him by the 1st Defendant about five years ago and they operate maritime companies within and outside Nigeria under the names Rangers Subsea Nig Ltd and Bear Maritime Ltd.
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The conversion rate for the said $150, 000 was N37, 000, 000.00 as at then but he only transferred N30, 000, 000.00 into the said 2nd Defendants account. The 3rd Defendants hand written statement dated 23rd December, 2016 was admitted as Exhibit YY.
Testifying further in chief, the witness stated that he carried out a follow up investigation to the 3rd Defendant. As regards the payments, he made into the 2nd Defendants account, he contacted both Mr. Bassey and Mr. Hubert. Both of them admitted instructing 3rd Defendant to support Justice Ademola and family with the sum of $150, 000 on their daughters wedding.
He equally raised questions in a questionnaire and posted to these two persons in their respective places of abode in UK and USA and instructed them to provide answers to these questions before a Commissioner for Oaths. He posted it through NIPOST EMS Service.
Through his conversation with the duo, they could not answer the question on the nature of business between them and Barrister Joe even though Mr. Hubert responded to some of the questions raised in the questionnaire.
The certified true copy of type written letter of Mr. Hubert dated 26th January, 2017 to Director General of Department of State Services was admitted as Exhibit BBB while the two copies of Questionnaires dated 9th January, 2017 issued by Department of Security Services to Mr. Ken Hubert and Mr. B. Bassey were admitted as Exhibits CCC and CCC1 respectively.
Under cross examination by the learned 1st Defendants Counsel, the witness testified inter alia, that he found out in the course of his investigations that the 1st Defendant was a beneficiary from the estates of his grandfather and father. That the 1st Defendants grandfather was not only a distinguished lawyer but also rose to become the Chief Justice of Nigeria.
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The 1st Defendants income is not derived from only his income as a Federal High Court Judge. He saw the sum of $520, 000.00 in the 1st Defendants Account. From his investigations, that money was lodged in by Olabode Johnson of Johnson & Johnson Partners.
That the money was in like sum shared to three brothers with the 1st Defendant as one of them. By the Johnson & Johnson records, he agrees the money belonged to the 1st Defendant.
Continuing, he said it is true that in Exhibit BBB Ken Hubert said on Oath that the 3rd Defendant was only representing their interest in Nigeria.
That in their investigation, they were able to investigate some of the cases handled by the 1st Defendant which caught their eyes. Their investigation did not uncover any case before the 1st Defendant in which Ken Hubert and Mr. Bassey Bassey or their companies were parties.
He also stated that he held telephone conversation with Ken Hubert and Mr. Bassey Bassey. He did not find any link between them and Linas International Ltd and Friday Ukpong. He did not find any connection between Hubert and Bassey Bassey and Exhibits W to VV5 and WW to WW2.
The witness admitted it came to his knowledge through the 3rd Defendant that there was a marriage by one of the 1st Defendants daughters. He did come across Cruise Events Centre but did not find out it was an Event Outfit that managed the 1st Defendants daughters marriage.
He investigated and discovered there was a wedding by the 1st Defendants daughter around April 2015 at Oriental Hotels Victoria Island Lagos. He admitted when shown Exhibit BBB that with respect to the wedding in Oriental Hotels, Ken Hubert was speaking the truth.
When shown Exhibit T, he admitted payments were in it made to Cruise Events Planning Company.
Under cross examination by the learned 2nd Defendants Counsel, the witness testified inter alia, that he tendered documents in this Court relating to certain Garnishee proceedings claiming they influenced the decision of the 1st Defendant.
He admitted he does not know of any a case in relation to which lodgements were made from the 3rd Defendants Account to influence the 1st Defendant.
He also said that when he saw the three tranches of N10, 000, 000.00 in the 2nd Defendants account, he did not see any purpose for which the lodgements were made. He did not find out from the 2nd Defendant what she did with the lodgement into her account.
He equally admitted knowing the 1st Defendant is the grandson of the former Chief Justice of Nigeria, son of a presiding Justice of Court of Appeal and now a Judge of the Federal High Court.
He the 1st Defendant, was told him he was a lawyer for over 20 year before he was appointed a Judge. With this background, he can imagine the calibre of friends the 1st Defendant has.
Continuing, the witness said that During his investigation, nobody told him the monies recovered from the 1st Defendants house were given to him as a bribe.
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