FEMI FANI-KAYODE – HAS JUSTICE BEEN DONE

It is no longer news that the Federal High Court has declared that Chief Femi Fani – Kayode (“FFK”) is not guilty of the money laundering charges brought against him by the Federal Government. In His judgment delivered on 1^st July 2015, His Lordship, Honourable Justice Rita Ofili- Ajumogobia stated that the prosecution’s case was feeble and that it has failed to prove its case beyond reasonable doubt. 

FFK was charged under section 15 of the Money Laundering Act, 2004 (“MLA”). This Act states thus:

“15 (1)     Without prejudice to the penalties provided for illicit traffic in narcotic drugs or psycho tropic substances, the laundering of drug money or the proceeds of a crime or illegal act, any person who

(d) makes or accepts cash payments exceeding the amount authorised under this Act commits an offence under this section”

Section 1(a) of the MLA provides the amount authorised by Section 15(1) above.

“(1)     No Person or body corporate shall make or accept cash payment of a sum exceeding

(a)  N500,000 or its equivalent, in the case of an individual

Except in a transaction through a financial institution

The law states that any individual who makes or accepts a payment in excess of N500,000.00  in cash without going through a financial institution has committed a crime. In our everyday transaction, this means that if a shop owner after selling the goods in his shop, realizes a sum of say N550,000.00 and decides to carry the whole cash to Balogun market to restock his shop, he has committed a crime; Where a man decides to sell his car and a buyer comes with a cash sum of N600,000.00 and he receives it, both the buyer and the seller have committed a crime; where a young couple put together all the cash gifts they receive on their wedding day and it amounts to N510,000.00 and they decide to go and pay their rent with the money in cash both the couple and the landlord who receives the cash have committed a crime. There are countless instances where crimes according to the Money Laundering Act are committed daily. But that is not the focus of this commentary.

Back to the FFK charge. The prosecution brought a 40 count charge against FFK alleging that various sums of money were received by him and that he handed over such money to several cronies of his to pay into his account. That is all that the counts were about. There was no count that says that he took money from any Government purse or that he inflated any Government project or that he received bribes from anybody, all the charge said was that sums of money above N500,000.00 were paid into his account by his assistants. 

FFK’s counsel led my Mr. Adedipe SAN and Mr. Wale Akoni SAN filed a no case submission on behalf of FFK after the prosecution finally closed its case. The court ruled that FFK had no case to answer on 38 of the 40 counts. It therefore meant that FFK was facing only two counts as he had been discharged on 38 counts.  The two remaining counts are reproduced below.

Count 25

That you Chief Femi Fani-Kayode on or about the 20^th day of September, 2006, whilst serving as Minister of Culture and Tourism of the Federal Republic of Nigeria, in Lagos, within the jurisdiction of this Honourable Court made a financial transaction exceeding N500,000.00 (Five Hundred Thousand Naira) which was not done through a financial institution by accepting cash payment of N1,100,000.00 (One Million, One Hundred Thousand Naira Only) which sum was further paid into your personal account no. 103450252601 with First Inland Bank, Plc, Apapa Branch (now First City Monument Bank Plc) through one Supo Agbaje (your administrative staff now at large), and thereby committed an offence contrary to section 15 (1) (d) and punishable under Section 15 (2) (b) of the Money Laundering (Prohibition) Act, 2004.

Count 26

That you Chief Femi Fani-Kayode on or about the 29^th day of September, 2006, whilst serving as Minister of Culture and Tourism of the Federal Republic of Nigeria, in Lagos, within the jurisdiction of this Honourable Court made a financial transaction exceeding N500,000.00 (Five Hundred Thousand Naira) which was not done through a financial institution by accepting cash payment of N1,000,000.00 (One Million Naira Only) which sum was further paid into your personal account no. 103450252601 with First Inland Bank, Plc, Apapa Branch (now First City Monument Bank Plc) through one Supo Agbaje (your administrative staff now at large), and thereby committed an offence contrary to section 15 (1) (d) and punishable under Section 15 (2) (b) of the Money Laundering (Prohibition) Act, 2004.

As the learned judge stated in her judgment, there are 3 elements that need to be proved by the prosecution namely:

1.      The accused received a sum above N500,000.00

2.      The accused made a payment of a sum above N500,000.00

3.      The transaction was done without a financial institution.

For FFK to be found guilty of the charge against him, the prosecution must prove the above ingredients. The prosecution called in evidence a certain Agbaje who testified that FFK gave him the sum of N1,100,000.00 and N1,000,000.00 on two occasions and that on his instruction he paid the money into FFK’s account. The entries in FFK’s bank account supports the testimony of Agbaje to the extent that he made the payments into FFK’s account. The prosecution relied almost solely on the testimony of Agbaje. Analyzing the testimony of Agbaje alone, it can be argued that the prosecution has done its job. But has it?

In his defence, FFK called two witnesses, a certain Mr. Olasupo who is a co administrator with FFK of his father’s estate and a certain Mr. Aderemi Ajidahun who was FFK’s Chief of staff at the material time. Olasupo testified that he collected rent from tenants of the estate twice in the sum of N1,100,000.00 and N1,000,000.00 representing a deposit and balance of rent due. He stated that the tenant issued a cheque in his name and that he cashed the cheques in Abuja, he further stated that when he sought to give the money to FFK, he was not available and that on Ajidahun’s instruction he gave the money to Agbaje to pay into FFK’s bank account. It was also his account that on the two occasions he drove with Agbaje to the bank to make the payments. Aderemi corroborated Olasupo’s account.

This is where it becomes interesting. Agbaje said FFK gave him the money; Olasupo said he gave Agbaje the money and not FFK; Aderemi said it is true that Olasupo gave Agbaje the money not FFK; Agbaje did not state where and when the money was given to him by FFK; Olasupo on the other hand stated how, when and the circumstances where he gave Agbaje the money; there is only one entry in the bank statement of FFK in the sums stated above and on the days Agbaje paid the money. Who does the Judge believe? Clearly in this case the Judge has chosen to disbelieve the account of Agbaje. His Lordship stated that she finds Agbaje’s testimony unreliable, and that his testimony appears to be an afterthought.

It is my opinion that it is at this point that the matter turns. In other words the charge was won and lost at this point. The prosecution could not prove, to the satisfaction of the court, the source of the money paid by Agbaje. Its inability to demonstrate even vaguely that FFK received the money from a particular source was fatally detrimental to its case.  The court did not agree with the prosecution that the fact that money was paid into his account is enough evidence to show that he has received the money from an illegal source. His Lordship opined that the mere fact that a sum of money above N500,000.00 was paid into his account does not necessarily mean that he received the money in one lump sum, he could have received the money in tranches of N499,000.00 or N300,000.00  etc. This logic is quite sound in my opinion since the MLA seeks to punish transactions above N500,000.00

Has the prosecution proved all the elements of the charge; would a reasonable man sitting through the trial come to the conclusion that FFK is guilty; Is there no reasonable doubt in the His Lordship’s mind that FFK committed the offence. If any of the questions above is answered in the negative then FFK must be discharged and acquitted. And so he has.

It appears the prosecution did not think through its case before charging this gentleman. I certainly agree with the Learned Judge that the prosecution has not proved its case beyond reasonable doubt.

FFK is a character who divides opinion wherever he goes, he has many enemies, some will say deliberately and has cultivated friendships bordering on followership. Some call him blunt and forthright others say he is rude and disrespectful. Many people will like to see him sentenced to a jail term just to “teach him a lesson” but the courtroom is not a classroom where moral lessons are taught. He may not be the most popular person in town but in a court of law where a person’s liberty or life is at stake, the public opinion of an accused is not a consideration when his guilt or otherwise is to be decided. And rightly so!

Article written by Tunji Adigun, a legal practitioner.