The Federal High Court (FHC) in Abuja, on Wednesday, admitted the statement made by Ali Bello, Chief of Staff (CoS) to Governor Usman Ododo of Kogi State, in an alleged N10 billion money laundering trial of former governor Yahaya Bello.
Justice James Omotosho, in a ruling, also dismissed the objection by Bello’s co-defendant, Dauda Suleiman, to the tendering of his two statements as evidence by the Economic and Financial Crimes Commission (EFCC).
Justice Omotosho held that the EFCC complied with the provisions of Sections 15 (4) and 17 (2) of the Administration of Criminal Justice Act (ACJA), 2015 in obtaining the statements in dispute.
“Consequently, the statements of the defendants are admissible in evidence as they were made voluntarily,” the judge ruled.
The News Agency of Nigeria (NAN) reports that Bello (the 1st defendant), also a nephew of former Gov. Yahaya Bello, and Suleiman (2nd defendant) had told the court that the extra-judicial statements sought to be tendered by EFCC as evidence against them were made under duress.
The Kogi CoS was said to have made those statements on Nov. 29, 2022; Nov. 30, 2022; Dec. 1, 2022; Dec. 10, 2022; Dec. 11, 2022 and Dec. 12, 2022, respectively, while Sulaiman made the two statements on Nov. 30, 2022 and Dec. 1, 2022.
The defendants are being prosecuted by the anti-graft agency for allegedly laundering Kogi State’s funds to the tune of N10 billion.
The charges relate to alleged unlawful activities during the tenure of ex-Gov. YahayAa Bello, who is also facing two different charges bordering on alleged money laundering at the FHC and FCT High Court.
The duo, through their lawyers, Abubakar Aliyu, SAN, and Olusegun Jolaawo, SAN, had, on Feb. 16, objected to the plan by EFCC’s lawyer, Rotimi Oyedepo, SAN, to tender the eight statements they allegedly made as exhibits while leading Ahmed Audu Abubakar, the 17th prosecution witness (PW-17), in evidence.
While Aliyu, who appeared for Bello, insisted that the six statements made by his client were not made voluntarily, Jolaawo, counsel for Sulaiman, equally told the court that his client was threatened by the commission’s operatives who took his two statements.
However, Oyedepo disagreed with the defence submissions, arguing that most of the statements were obtained in the presence of their lawyer, Z. E Abbas.
Justice Omotosho then ordered a trial-within-trial and directed Abubakar, who is PW-17, to give evidence as PW-1 in the trial-within-trial.
After the anti-graft agency called its three witnesses, Bello and Sulaiman opened their case in the trial-within-trial.
However, Bello opted not to call any oral evidence.
Instead, he tendered the Certified True Copies (CTCs) of a judgment and an enrolled order of Kogi High Court in his defence of allegations that the extra-judicial statements made were not voluntarily obtained by the EFCC operatives.
But Suleiman testified as 1st defence witness (DW-1) and narrated how he was drafted into the case.
After the parties adopted their written addresses in the trial-within-trial, Justice Omotosho fixed today for ruling.
Delivering the ruling, the judge observed that the EFCC’s witnesses denied threatening the defendants while obtaining their statements and that the statements were not confessional as the defendants denied some allegations in the statements.
He equally observed that Suleiman, who testified as DW-1, though alleged that the officers threatened him with electric chair, the judge said during his cross-examination, the DW-1 stated that he never saw any electric chair where the statement was being taken.
The judge observed that Suleiman confirmed that a lawyer, “Z.E Abbas Esq. actually endorsed on the statements that they were made in his presence.”
He said the defendants did not deny that they were the ones who wrote the statements themselves, but that their only grouse was that they were threatened to make the statements.
Justice Omotosho held that the defendants ought to have called Abbas to give evidence in the trial-within-trial.
He said their failure to call the lawyer was a fundamental error.
“Now the said Z.E Abbas Esq. is a known person and has appeared for the defendants in this matter.
“For the defendants to succeed on their claims that the statements were not made voluntarily, they ought to call Z.E Abbas Esq. to testify.
“The defendants failed to call Z.E Abbas Esq. This failure raises the presumption that the evidence of Z.E Abbas would have been against their interest if they had called him.
“This omission by the defendants raises a presumption of withholding evidence under Section 167 of the Evidence Act, 2011.
“Apart from being a case of withholding evidence, the defendants’ failure to call their counsel, Z.E Abbas Esq., is an admission of the evidence of the prosecution that the statements were obtained voluntarily.
“The 2nd defendant even testified to the credibility of Z.E Abbas Esq., stating that he is a truthful person and that he agrees with whatever he says,” the judge said.
The judge also agreed that the statements made by Bello on Nov. 30, 2022; Dec. 1, 2022, and Dec. 12, 2022, before Z. E. Abbas were all made voluntarily.
According to him, these are very credible proof that the said statements were made voluntarily without more.
“For the other statements of the 1st defendant, the evidence of prosecution witnesses remains credible and there are no indications on the face of the statements that the 1st defendant was forced or threatened to make the statements.
“The 1st defendant in his statements also used words like ‘I don’t know’ and ‘I can’t recall’.
“This court finds it hard to believe that the EFCC officers threatening the 1st defendant to make favourable statements would allow him use such words.
“Those words essentially change the nature of those statements to ‘non-confessional’ statements as they were not direct and unequivocal about admitting the allegations against him,” the judge said, citing previous Supreme Court’s decision.
Justice Omotosho said from the foregoing, Bello “was not forced to admit anything and thus this court holds that the said statements were made voluntarily and no force or torture or promise was applied on the 1st defendant in the making of the statements.
“This court found out that just as the prosecution witnesses testified, cautionary words were administered to the defendants and they signed same.
“In fact, the cautionary words stated that they were not obliged to say anything as anything they said may be used against them in evidence.
“This has fulfilled the procedure in taking voluntary statements.
“Thus, the statements were made voluntarily without any coercion or involuntariness.
“Without more, this would make the statements admissible in evidence” he said.
The judge equally dismissed the defence argument that the statements did not comply with provisions of Sections 15(4) and 17(2) of ACJA, 2015, in that there was no video recording of the statement taking.
“A closer look at the provisions of Section 15(4) and 17(2) show that these provisions only apply where the statement is a confessional statement.
“This means that it would not apply to all manner of statements but the ones that are confessional in nature.
“As held earlier, the statements themselves are not confessional in nature as the defendants did not admit to the commission of the offences alleged against them.
“The defendants in their statements used words like ‘I can’t recall’ and ‘I don’t know.’
“These words or phrases imply that they do not admit to the allegations.
“A statement needs to be direct, unequivocal and must be an admission for it to be confessional in nature.
“This is the whole essence and meaning of confession under Section 28 of the Evidence Act, 2011.
“These statements, being non-confessional, do not fall within the purview of Sections 15(4) and 17(2) of the ACJA, 2015.
“Consequently, this court will not subject the statements through those provisions.
“In final analysis, the statements of the defendants are admissible in evidence as they were made voluntarily and are non-confessional statements to be subject to the provisions of ACJA, 2015,” he ruled.
Justice Omotosho, therefore, admitted the six statements made by Bello as “Exhibits R to R5” and admitted the two statements made by Suleiman as “Exhibits S and S1. ”
The judge, who adjourned the matter until April 21 and 24 for the prosecution to close their case, threatened that if the EFCC fails to come with all their witnesses, its case would be deemed closed.
