Why court discharged and acquitted Fani-Kayode of money laundering charges

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Justice Rita Ofili-Ajumogobia, Wednesday, discharged and acquitted a former Aviation Minister, Femi Fani-Kayode‎, of money laundering charges.

While reading her judgment which lasted almost 50 minutes, Ms. Ofili-Ajumogobia said that the prosecution, the Economic and Financial Crimes Commission presented “a feeble case”‎ and failed to link Mr. Fani-Kayode with the charged offences.

‎”It is apparent that the prosecution’s case is feeble and has failed to establish that the accused person paid or accepted cash deposits exceeding the authorised limit and did not do so through a financial institution,” the judge said.

“The prosecution has therefore failed to prove beyond reasonable doubt that an offence had been committed under Section 15(1) of the Money Laundering Prohibition Act (2004).

“I am of the considered view that the accused person, Chief Femi Fani-Kayode, ‎in the absence of copious evidence connecting him to the offence charged ought to be discharged and acquitted of the two surviving counts of the amended charge and I so hold.‎”

The EFCC had arraigned Mr. Fani-Kayode‎ before Ms. Ofili-Ajumogobia in 2013 on a 40 count amended charge of money laundering amounting to almost N100 million while he was the minister of aviation in 2006.

Last year, the judge struck out 38 of the 40 charges‎, leaving the prosecution with a two count charge of money laundering of N2.1 million.

The EFCC alleged that N1.1 million and N1 million – amounts exceeding the N500,000 threshold – were paid‎ into the bank account of Mr. Fani-Kayode at the former minister’s behest.

‎The Commission said that the transactions were done without going through a financial institution.

‎In her judgment, Ms. Ofili-Ajumogobia said that the prosecution’s fourth witness gave an unreliable testimony.

‎”Taking cognisance of the fact that the oral testimony of PW4 before this court is at variance ‎with his earlier voluntary submission before the Economic and Financial Crimes Commission, I find unreliable the testimony of PW4 that it was the accused person that gave him money to pay into the latter’s account,” the judge said.

“His testimony before this court seems to be an afterthought, in view of the fact that PW4 who was stated by the prosecution to be at large initially suddenly appeared to give testimony on behalf of the prosecution.

“The law is trite that where there are two or more conflicting testimonies by a witness, such testimony must be discarded by the court.”

The judge also said that the defence witnesses painted a “somewhat coherent but doubtful story” as to how the stated amounts ended up in Mr. Fani-Kayode’s bank account.

‎”The doubtfulness in the account of the defence lay in the fact that they failed to show that the same money that they referred to were the exact same money PW4 referred to in his testimony,” said the judge.

“I agree with Mr. Keyamo that it was a costly omission for the defence to have failed to cross examine PW4 with respect to the testimony of PW1 and PW2 in order to test the veracity of PW4’s testimony.

“However, I do not agree with Mr. Keyamo for the prosecution that evidence of deposits in the bank account of the accused person without proof is sufficient evidence to show that the latter received cash payments ‎from unknown sources of sums above the statutory threshold of N500,000.

“The fallacy in such argument lies in the fact that it would remain unclear as to whether‎ the accused person received the alleged sum in tranches of at least N500,000 in each case. Is it not possible that the accused person received the cash in lumps of N499,000 or even N300,000 in each case.

“This is so because no offence is committed when the amount received outside the financial institution is less than N500,000.

“There is no doubt, therefore‎, as widely canvassed by learned counsel for the defence that it is necessary for sufficient and unequivocal evidence to be put before the court as to how and in what manner the money were actually received.”

The judge further stated that since there is insufficient evidence linking the accused person with the ingredients of the offence charged, that the court must discharge him as a matter of law.

On the second element of whether the money was paid into Mr. Fani-Kayode’s bank account on his behest, the judge said that prosecution also failed to prove that he did so.

“It is apt to note that this second element is an offence not by provisions of the money laundering act but rather by the manner in which counts 25 and 26 are framed.

“It is important to make this point because the Money Laundering Act only criminalises financial transactions which are above the threshold when they are not done through a financial institution.

“Ordinarily, the crime would have been proven upon the successful establishment of the first element alone, but the prosecution had introduced the second element in it. And the law requires that the prosecution proves the offence of charge‎.”

The judge also stated that the confessional statement the prosecution purportedly obtained from Mr. ‎Fani-Kayode is irrelevant as it failed to link him to the charged offences.

“By virtue of summation of the Evidence Act, confessional statements are only admissible when they are voluntary, relevant, direct, legal, unequivocal of the facts required to prove the offence.

“I think that the said confessional statement is too vague, general, and in no way links the accused person to the offence charged. It is irrelevant.

“I have established in the course of this judgment that it is settled fact that the sum of N1.1 million and N1 million were paid to the accused person on the 20th and 29th of September 2006 by PW4.

“What remains unclear is the source of the money and whether it was the accused person that instructed PW4 to make the payments. This is yet another element of doubt that must be resolved in favour of the accused person.”

Mr. Fani-Kayode’s trial saw three judges and four re-a‎rraignment since 2008 when he was first brought before Justice Ramat Mohammed on a 47 count of money laundering.

In 2012, following Mr. Mohammed’s transfer out of the Lagos Judicial Division, Binta Nyako took over the case.

Judge Nyako was also moved out of the Lagos Division in 2013, and the trial re-assigned to Mrs. Ofili-Ajumogobia.