Fayose's Trial: EFCC accused of "Prosecutorial misconduct" over replacement of witness who contradicted himself

Fayose's Trial: EFCC accused of "Prosecutorial misconduct" over replacement of witness who contradicted himself

Attempt by the Economic and Financial Crimes Commission (EFCC) to introduce a new witness in the alleged N2.2 billion trial of former Ekiti State Governor,  Ayodele Fayose was today,  opposed by the defense counsel,  accusing the anti-corruption agency of engaging in prosecutorial misconduct.

Fayose’s lawyers, Ola Olanipekun (SAN)  and Olalekan Ojo (SAN), had opposed the attempt to replace Adewale Aladegbola, a former bullion van driver with Zenith Bank, Ado-Ekiti branch with Johnson Abidakun, who is the Head of Operations, Zenith Bank, Ado-Ekiti branch.

The defence lawyers contended that the prosecution did not have the liberty to change a witness just because such a witness failed to give evidence favourable to them.

Olanipekun and Ojo, who cited provisions of the Administration of Justice Act (ACJA) 2015 and the Evidence Act,  described the attempt to substitute Aladegbola with Abidakun as an abuse of prosecutorial power by the EFCC, notifying the court of their intention to file a written application,  seeking to prevent him (Abidakun) from giving evidence.

Olanipekun said; "His (Abidakun) being called as a witness is an abuse of prosecutorial procedure.

He made extra judicial statement on May 17, 2019, after the witness called by the prosecution contradicted himself. He is coming with the intention of redressing the damage that was done by that witness. 

"No prosecution nor any defendant is entitled to prosecutorial misconduct. It bothers not only on the competence of this witness,  but also on the credibility of the prosecution."

In his response, the EFCC lawyer, Rotimi Jacobs (SAN), told the court  that the anti-graft agency had decided to use another witness in the place of the one allegedly compromised by Fayose.

Jacobs alleged that the defendant went behind to meet and threaten the witness, Adewale Aladegbola, a bullion van driver with Zenith Bank, Ado-Ekiti branch.

The prosecutor said as a result of the alleged threat and compromise, when Aladegbola appeared before Justice Mojisola Olatoregun, who was earlier hearing the case, the witness turned around in his testimony to give a different evidence from what he wrote in his statement at the EFCC office during the investigation.

“It is only in our country that this type of thing happens. The witness before Olatoregun was compromised by this defendant,” Jacob said.

The prosecutor insisted that the proceedings before Justice Olatoregun were no longer relevant as the matter had started afresh when the case was transferred to Justice Aneke.

Temper had risen when Ojo responded to Jacob's allegation, describing it has libelous.

It should be recalled that on May 10, 2019, during the aborted trial before Justice Mojisola Olatoregun,  Aladegbola had caused a stir in the court when contrary to his extrajudicial statement to the EFCC, he told the court that he did not move cash from Afao Ekiti, Fayose's hometown on the 16th of June 2014 and that the two vehicles he used to drive in Zenith Bank were grounded  on that day.

Aladegbola said he was told to lie by the bank Cash Officer, Okemute Oputu, adding that on April 16, 2015, the Zenith Bank bullion van was grounded and there was no operations.

Obviously shocked at this point, the prosecutor, Mr Rotimi Jacobs, SAN,  told the court that he will be asking for adjournment as the witness seems to be a hostile witness. 

"My Lord,  from indications am getting from responses from this witness, it looks as if this witness might become hostile as he is making statements absent from his extra judicial statement in the proof of evidence. " 

"I need to know the nature of application to be made before your lordship. I had no prior indication that the witness was going to change his mind. I want your lordship to adjourn this matter for me to make appropriate applications because he has cast aspersions on his cashier officer on cover up," the EFCC counsel said.

The defence counsel had opposed the application for adjournment, saying the prosecution can not ask for adjournment based on the fact that his witness was not cooperating.

Olanipekun and Ojo said that rather than asking for adjournment, the prosecutor  should have declared the witness a hostile witness and contradict him with his statement.

Judge Mojisola Olatoregun in replying to the claim of the prosecution that his obligation to protect the witness is inhibiting him from out rightly declaring the witness hostile said; "your primary disposition is to the court. You do not protect anybody at the expense of justice. What stops you from declaring him hostile right now? You can seek adjournment based on I'll preparation."

 However,  after further argument from the prosecuting counsel,  the judge agreed to adjourn proceedings and continue with the witness exam in chief on the 14th of May at 1pm.

Aladegbola was subsequently arrested at the court premises by the EFCC and detained for hours after.

On May 14, 2019 that the matter was to come,  EFCC counsel did not show up in court,  prompting adjournment till May 21, 2019 at 11am.

On May 21, 2018, the trial was further adjourned until June 10, as Justice Olatoregun was said to be away on official assignment.

However,  before the adjourned date,  the matter was transferred from Justice Olatoregun to Justice Aneke based on petition by the EFCC alleging bias. 

Following the heated arguments between the prosecution and the defence today, Justice Aneke adjourned until November 28, 2019, for the ruling on the objection raised by the defendants.