A Federal High Court in Lagos on Tuesday held that statements made by two former staffs of the Nigerian Maritime Administration and Safety Agency (NIMASA), Captain Ezekiel Agaba and Ekene Nwakuche, were made voluntarily.
The court reached the decision while ruling on a trial-within-trial conducted to ascertain the willingness of the statements made by the accused.
Agaba (second accused) and Nwakuche (third accused) are charged with a former Director General of NIMASA, Patrick Akpobolokemi, over N2.6 billion theft.
Also charged are: Governor Juan, as well as Blockz and Stonz Ltd, Kenzo Logistics Ltd and Al-Kenzo Logistic Ltd.
EFCC charged them with converting N2.6billion between December 2013 and May 2015.
They had all pleaded not guilty to the charges.
However, counsel to Agaba and Nwakuche, Mr. Edoka Onyeke and Mr. Lanre Olayinka, had both raised objection to the trial of their clients, on the grounds that their statements were not volunteered to the EFCC.
This objection, compelled the presiding judge, Justice Ibrahim Buba, to order a trial-within-trial, to test the willingness of their statements.
When the case was called yesterday, Nwakuche told the court that he was never allowed access to his lawyer, while his statements were being obtained at the EFCC.
He maintained that he repeatedly requested to see his lawyer, but his request was bluntly refused by officers at the commission, who ordered him to write his statement.
According to him, one Orji Chukwuma, an investigating officer at the commission, tutored him on how to go about his statement.
On whether his statement was obtained in the presence of a lawyer, a member of the legal aid, or a justice of the peace, Nwakuche maintained that non of the afore mentioned, were present at the material time his statement was obtained.
On whether any electronic means was adopted in recording his statement, Nwakuche replied; No, and added “I was even asked to remove my shiny wrist band, on suspicions that it was a recording device”
Under cross-examination by the prosecution led by Mr. Rotimi Oyedepo, Nwakuche however, admitted that he was severally cautioned before his statements were obtained.
He also admitted restraining his lawyer from coming to the EFCC, but added that it was due to the fact that his lawyer will no be allowed access to him.
On whether he made any formal complaint of the situation to the chairman of the EFCC, or the deputy director of operations, he replied No, but added that he was discouraged from filing any report, on the grounds that such report will “not see the light of day”
After his evidence, the trial judge then called on counsels to the prosecution and defence, to address the court before he delivers his ruling on the trial-within-trial.
Counsel to the second and third accused, Edoka and Olayinka, informed the court that they were not prepared to take their addresses, since they had not anticipated same would be taken today.
Justice Buba however, refused their prayer for adjournment, noting that the trial was criminal in nature.
The judge also noted that situations abound, where a trial-within-trial was conducted in one day, and ruling delivered same day.
He, therefore, called on the prosecution to address the court.
Oyedepo in his address, urged the court to over look the contention of the second and third accused, that their statements were extracted by inducement.
He urged the court to hold that their statements were volunteered without threat or undue influence.
“My lord, given the evidence on oath by the accused, we have discharged the onus on us to show that the testimonies of the accused, which is exhibit T1 and T2 were taken voluntarily.
“PW 2 and PW3 who were called as witnesses, were independent observers and not even staffs of EFCC, and they testified that the accused were not threatened to make any statement.
“The second defendant admitted in his evidence that his daughter was always allowed into the EFCC, to bring him food and fruits; this is a clear departure from his evidence in chief.
“I urge the court to hold that the evidence of PW 1 to 3 has clearly established that the statements of second and third accused were made voluntarily,” he said
In a bench ruling, Justice Buba held:
“By the provision of section 28 of the evidence act, the onus to show that a statement was taken voluntarily, rest with the prosecution, and the defendant has no corresponding duty to show otherwise.
“The second defendant admits that he was granted bail by the EFCC, and was coming to the commission from his home with his driver.
“What is even more mind bulging is the evidence of DW 2 that he was never detained at the EFCC for one day.
“In fact, the third defendant under cross examination, was of the impression that his lawyer made his statement for him.
“Where a defendant is on bail and he chose not to come with his lawyer to make a statement, then he cannot be heard to complain.
“The objection raised herein, is an after thought; it is hereby over ruled and all evidences, T1, T2 and T3 are accordingly admitted and marked exhibits P59 A, P59 B and P60 respectively.
“This case is hereby adjourned to June 30 for the prosecution to call it’s last witness, PW11,” he said.