Justice Okon Abang of the Federal High Court, sitting in Maitama, Abuja, on February 26, 2018, admitted in evidence, documents tendered by the prosecution, through the seventeenth prosecution witness, Zakari Mohammed Uthman, in the N29billion fraud trial involving former governor of Adamawa State, Murtala Nyako. Nyako 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 preferred against him by the Economic and Financial Crimes Commission, EFCC.
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.
The prosecution, represented by Rotimi Jacobs, SAN, had on January 25, 2018, sought to tender Certificate of Identification, signed by one Aisha Balogun and two account opening documentation forms through the witness, but its admissibility was objected to by Ibrahim Isiyaku, SAN, counsel to the 4th and 8th defendants.
The counsel ground of objection was that the witness was not the maker of the documents as he did not sign it. He also argued that no foundation was laid before tendering it and as such it failed to satisfy the provisions 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 tendering of the covering letter that came with the statement of account and other documents, maintaining that the covering letter was obviously not signed by the witness, but by two other staff of Union Bank (Ohozie Johnbosco, head sale and service of the bank and one Actere Magdalene, who signed as the branch manager.
He urged the court to refuse the document and mark it as rejected.
Other counsels in the matter also aligned themselves with the arguments and submissions of Isiyaku to the effect that the document was inadmissible.
Jacobs had while replying on point of law, argued that the document, having been generated by the computer of the bank, can be tendered by anybody in the bank of any person 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 has sufficient proof of the matter stated in the other certificate.
He argued that “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 defence and admit the document in evidence.
In his ruling today, Justice Abang held that the documents were admissible.
“I have carefully painstakingly considered the arguments of the learned counsels for the defendants opposing the admissibility of the documents sought to be tendered in evidence. I have also considered the argument of the learned senior counsel representing the prosecution.
“This is the moment that the court will apply the law to the fact of the case.
“I entirely agree with the learned counsel for the prosecution, Rotimi Jacobs, SAN, that the maker of the Certificate of Identification sought to be tendered in evidence, is Union Bank and not Aisha Balogun.
“EFCC applied to Union Bank to be furnished with the statement of account in question. They did not apply to Aisha Balogun.
“The bank is a legal person, not a natural person. Natural person acts for the bank. Any natural person working for the bank can tender in court the document requested by EFCC whether or not he is the person that signed the document.
“It is my humble view that the computer generated can be tendered by any staff of the bank. The bank is the maker of that document and the provision of Section 53 (1) of the Evidence Act is complied with”, Justice Abang ruled.
Thereafter, Uthman, continuing his evidence further revealed how two different accounts were used to pay salaries to Nyako.
According to the PW17, ‘Exhibit L’ (account statement, the application form to open an account), Uthman said it was “filled and signed by Nyako Murtala Hamman.
When asked to look at the specimen, the witness said “it was introduced by Leutenant Okopo, a signatory to Nigeria Navy account”.
The witness told the court that in ‘Exhibit L’, there were two accounts.
According to him, “The first one has the name of Nyako M. Hamman and the second account is Nyako M. A. H. Here too, there is military pension deposit, Nigeria Navy salary”.
Explaining the posting therein, Uthman said “there is one of January 26, 2009, Nigerian Navy, January salary, Nyako M.A.H;
He added: “On February 25, 2009, another deposit, Nigerian Navy, February salary, Nyako M.A.H.
“From that period up to December 2014, deposits were still coming in from Nigerian Navy”.
The case has been adjourned to February 27, 2018 for continuation of trial.
