A Federal High Court sitting in Lagos has fixed April 18 to decide whether the Economic and Financial Crimes Commission (EFCC) can file additional evidence against former Managing Director of the defunct Intercontinental Bank Plc, Dr Erastus Akingbola.
Justice Mojisola Olatoregun fixed the date for ruling following the opposition of the former bank chief to the admissibility of some statements of accounts from Access Bank, which were sought to be tendered by the EFCC.
Akingbola through his lawyer, Chief Wole Olanipekun (SAN) insisted that the EFCC could not substitute a witness or file fresh evidence at this stage of the case since investigation has ended and trial has commenced.
But the counsel to the EFCC, Rotimi Jacobs (SAN) argued that by virtue of the Administration of Criminal Justice Act, the prosecution was at liberty to file additional evidence any time before judgment.
The former bank MD is facing a 22-count amended charge of granting reckless credit facility, abuse of office and mismanagement of depositor’s funds.
He pleaded not guilty to the charge.
When the case came up for hearing on Friday, the lawyer to the anti-graft agency, Rotimi Jacobs (SAN) called his third witness, Uyoyou Ewhe, an Access Bank official, and sought to tender through him the statements of certain accounts opened in Access Bank.
Jacobs informed the court that he was forced to call Ewhe to come tender the documents because the intended witness who was to tender the documents, has left the bank and is no longer in the country.
This move was strongly opposed by Olanipekun, who argued that the documents were only freshly sourced, contrary to the law that before a criminal case is filed in court all investigations must have been concluded.
He said, “The prosecution was sourcing for evidence two days ago in a trial that started 10 years ago.
“You cannot substitute a witness in a criminal proceeding, substituting a witness amounts to sourcing for evidence contrary to the decision of the Supreme Court in the celebrated case of Enahoro against the Queen of 1965.
“If you don’t have your witnesses, you don’t have your witnesses; you cannot substitute witnesses.
“Section 83 of the Evidence Act prohibits admissibility of this type of document. We have addressed Your Lordship on the interest of Access Bank in this matter, which is undisguised.
“This witness, the maker of this document, is an official of Access Bank. Put succinctly, this document is an Access Bank document. And I daresay, the documents were made as a result of evidence already given, may be to patch up the evidence; it is a natural consequence which the court is called upon to assume,” the senior lawyer submitted.
However, Jacobs argued that, “The question of substituting a witness does not arise, and even if it arose, the prosecution is not limited to the list of witnesses in the proof of evidence originally filed.”
As to the argument that the documents sought to be tendered were freshly made, Jacobs said by virtue of the Administration of Criminal Justice Act, the prosecution was at liberty to file additional evidence any time before judgment
He added that the documents were old statements of accounts of 1990.
“It is just the letter covering the documents and the certificate showing compliance that are new. It is new bottle with the old wine.”
Jacobs said, stressing that the documents were relevant to the case.