Justice Okon Abang of the Federal High Court sitting in Maitama, Abuja, on February 6, 2018, adjourned to February 26, 2018, for ruling on the admissibility of a document, tendered by Zakari Uthman, the seventeenth prosecution witness, in the trial of a former governor of Adamawa State, Murtala Nyako.
Nyako is facing trial in N29 billion fraud charge preferred against him by the Economic and Financial Crimes Commission, EFCC.
He is being prosecuted alongside his son, Senator Abdul-Aziz Nyako, Abubakar Aliyu and Zulkifikk Abba on a 37-count charge of criminal conspiracy, stealing, abuse of office and money laundering.
Five companies that allegedly served as conduit pipes for the illegal diversion of the funds - Blue Opal Limited, Sebore Farms & Extension Limited, Pagoda Fortunes Limited, Tower Assets Management Limited and
Crust Energy Limited, were equally charged before the court as the 5th to 9th defendants.
On January 25, 2018, when the case came up, counsel to the anti-graft agency, Rotimi Jacobs, SAN, presented Uthman, a banker with the Union Bank of Nigeria, to tell the court what he knew about the case.
“As at September 2017, my office was asked to provide account statements for two accounts and the following day, we furnished the EFCC with the things. I was further asked to represent the bank as a witness," Uthman said.
The account documents are; Certificate of Identification, signed by one Aisha Balogun and two account opening forms.
The bank’s response to the EFCC was shown to the witness and he identified the documents.
Rotimi sought to tender these documents, but its admissibility was objected to by Ibrahim Isiyaku, SAN, counsel to the 4th and 8th defendants, who also held brief for Kanu Agabi, SAN, representing 1st, 2nd, 6th and 7th defendants.
He argued that Uthman was not the maker of Certificate of Identification as he did not sign it.
“We shall be objecting only to Certificate of Identification pursuant to Section 84 of the Evidence Act and we shall also be objecting to the document headed: “Re-investigation of EFCC, FG vs Murtala Nyako”, dated September 27, 2017, and addressed to Chairman EFCC.
“Our reason is, the Certificate of Identification, the same was not signed by the witness, he is not the maker of the document, and no reason has been proffered for the signatory’s absence”, the learned silk said.
Isiyaku argued that, “that was in breach of the provision of Section 83, subsection 1 of the Evidence Act, 2011, which requires that the maker of a document has to be in court to tender same, unless if there are some reasons holding him back from coming to court, which must be stated as foundation preceding the tendering of the document”.
He further objected to the other document (the Covering Letter) to which the Statement of Account and other documents were attached to.
“My lord, the covering letter was signed by two staff of Union Bank (Ohozie Johnbosco, as head sale and service of the bank) and one Actere Magdalene, who serves as the branch manager.
“The witness did not sign the document, obviously he is not the maker of the document and no foundation has been laid towards the tendering of the document, to explain why they are not able to be in court. As it is, we cannot cross examine him”, Isiyaku argued.
He urged the court to refuse the document and mark it as rejected.
Consequently, the judge adjourned to today for the continuation of further examination-in-chief of the PW17.
At the resumed sitting, other counsel in the matter also aligned themselves with the arguments and submissions of Isiyaku to the effect that the document was inadmissible.
Replying on point of law, Jacobs argued that the document, having been generated by the computer of the bank, can be tendered by anybody in the bank that has the copy of the certificate envisaged under section 84 (4) of the Evidence Act.
“My Lord, Section 84 prescribes that the certificate of identification as sufficient proof of the matter stated in the other certificate."
“The witness is an official of Union bank and he told your lordship how he got this document. "
“The person who signed the certificate owns a responsible position in the bank as an internal control officer of Union Bank."
“They are not challenging the capacity in which Aisha signed the document."
“Once that certificate is produced, the provision of Section 146 of the Evidence Act enjoins your lordship to presume that the certificate is produced by the person authorized”, Jacobs argued.
He urged the court to discountenance the submissions of the defense and admit the document in evidence
After listening to the arguments, Justice Abang adjourned for ruling on the admissibility of the document.
Head, Media, and Publicity
6 February 2018