The serial losses of corruption cases recorded in court has become a source of worry to the Federal Government, writes ONYEKACHI EZE
It is clear to every discerning mind that the fight against corruption, which is the cardinal programme of the All Progressives Congress-led Federal Government is about to be demystified. Despite the hype, the arrests and huge sums of money said to have been recovered from alleged looters of the public treasury, very few of them have been convicted or sent to jail since the Muhammadu Buhari government was sworn into office nearly two years ago.
This would have served as deterrence to would-be looters, and convince Nigerians that the anti-corruption war is on course. The government is also worried about this development, and has expressed concern about the perception of the people to its corruption fight. Minister of Information and Culture, Alhaji Lai Mohammed said in a statement last week that government is reviewing all the court judgments “to determine whether there were errors on our part or whether the government is the victim of mischief.”
The Federal Government has every reason to worry because a number of corruption cases filed in court against some individuals have been thrown out. For instance, a Federal High Court sitting in Ado Ekiti, Ekiti State, last December, ordered the Economic and Financial Crimes Commission (EFCC) to immediately unfreeze the accounts of the state governor, Mr. Ayodele Fayose.
The anti-corruption agency had frozen the account of the governor in Zenith Bank on the allegation that it was among the accounts suspected to have been used to launder the 2015 campaign fund. But the presiding judge, Justice Taiwo Taiwo said the action was illegal, unlawful and unconstitutional, and a breach of the governor’s fundamental right for fair hearing. He added that as a sitting governor, Fayose enjoys immunity as enshrined by the constitution.
The anti-corruption agency also lost the battle for a temporary forfeiture of N75 million found in Mike Ozekhome’s account at the Guarantee Trust Bank and Mrs. Patience Jonathan’s $5. 9 million in Skye Bank. Justice AbdulAfiz Anka of the Federal High Court, Lagos on April 3, faulted the EFCC’s “No Debit Order” placed on Ozekhome’s account because there was no argument as to the source of the fund.
According to the judge, Governor Fayose’s accounts from which the money was paid as legal fee to Ozekhome, a Senior Advocate of Nigeria (SAN) has been lifted, and therefore there was no restriction on the originating account as at the time the N75 million was paid to the lawyer’s chambers.
“There is no argument whatsoever as to the source of the funds as rightly argued by the learned counsel for the EFCC, Mr. Rotimi Oyedepo, but the question is: can the respondent/applicant be liable for any infraction as of the time he received the amount in his account?
“His evidence was not controverted that the same proceeds were unencumbered as of the time they were transferred into the account of Mike Ozekhome Chambers as rightly argued by Chief Mike Ozekhome.
“The Federal High Court sitting in Ado Ekiti …ordered that the unfreezing of the said account belonging to Governor Ayodele Fayose.
“Considering the order above quoted and the depositions, I do not understand or comprehend why the applicant/respondent’s counsel, Mr. Rotimi Oyedepo, would still argue and stand his ground that the same account has not be unfrozen by the Federal High Court sitting in Ekiti State.
“In both the order and the depositions, the account was evidently and manifestly unfrozen, such an argument, therefore, by Mr. Oyedepo Esq cannot hold water,” the judge held Three days later, Justice Mojisola Olatiregun also of a Lagos Federal High Court lifted the “No-Debit Order” placed on the account of the former First Lady, Dame Patience Jonathan at Skye Bank.
The judge agreed with Dame Jonathan’s counsel, Adedayo Adedipe that the order to freeze the account was abuse of court process as the court has no jurisdiction to make an order against a party that is not a party to a suit filed before the court.
Justice Olatiregun subsequently ordered the EFCC to unfreeze Mrs. Jonathan’s account.
The acquittal of Justice Adenitis Areola, his wife, Olabowale and Mr. Joe Agi, SAN by Justice Jude Okeke of Abuja High Court two weeks ago, is a big setback to the anti-corruption war.
Ademola, a justice of the Supreme Court, was charged to court with his wife by the Office of the Attorney-General of the Federation and Minister of Justice after a raid in his house by operatives of the Department of State Services on October 7 last year.
The secret police claimed that huge sum of money was recovered in his house, which they told the court was proceeds from crime.
But the presiding judge said the prosecution had failed to establish a prima facie case against the defendants.
“I have read the address of parties and examined all the exhibits tendered before the court and found that prosecution has not proved any of the essential elements of crime against the defendants,” the judge said.
He faulted Section 97 of the Penal Code on the basis of which the accused were brought to court, and said it did not provide ingredients for conspiracy but punishment.
“No person shall be punished for an act not provided for in the law. Therefore, Section 36 (a) of the 1999 Constitution rendered the charges incompetent and it is hereby struck out,” Justice Okeke stated.
He observed that the 19 witnesses called by the prosecution did not link the N30 million transferred by Agi to Justice Ademola’s wife to the judge, neither were they related to the garnishee orders made by Justice Ademola for three companies in Cross Rivers State.
The judge also stated that none of the prosecution witness from Guaranty Trust Bank (GTB) who testified was able to disclose the purpose for which the N30 million was transferred.
Rather, he added, the evidence of the prosecution witness which turned to be in favour of the defendants are true, essentially, as the prosecution counsel, Segun Jegede, did not declare the witness as a hostile witness.
He subsequently held that charges 6, 7 and 8, which alleged that the N10 million was transferred from Agi to Justice Ademola’s wife, were not established to show how it influenced the official functions of her husband.
“The third defendant (Agi) ought not to be called to put up his defence when the counts did not meet the constitutional standard,” he ruled.
He further noted that the huge sums of money said to have been recovered from Justice Ademola’s residence did not show that the money was proceeds of illegality as the prosecution witness from the Federal High Court testified that Justice Ademola earns over N500, 000 as salary and about N300, 000 as allowances as well as about N1.2 million as estacode.
The judged also held that Justice Ademola, in his statement, revealed that he is a son of a former Justice of the Court of Appeal and a grandson of former Chief Justice of Nigeria and that he inherited vast wealth from his parents including the sum of N500 million which he benefited from the income generated from his father’s estate
. The judge said: “It cannot be said that a man who earns salary and derived benefits from his parents’ estate cannot possess capacity to monster such amount of money in his house, more so as nobody has claimed that the amount found in Justice Ademola’s residence belonged to him.”
The court also dismissed the charge of illegal possession of firearms (two pump action rifles) and 35 live ammunition preferred against Justice Ademola under the Robbery and Firearms Act, observing that while one of the rifles belongs to Justice Ademola, the other belongs to his brother Judge, Justice Ahmed Mohammed.
“It is my humble view that the charge is inconsistent with the Robbery and Firearms Act. There is no evidence before the court to show that the DSS requested for valid license of the rifles which the defendant did not provide at the time his house was searched,” the judge said.
The Federal Government is also losing ground in some other corruption charges filed against other individuals and former public office holders.
For instance, the charge against former National Security Adviser (NSA), Col. Sambo Dasuki (rtd) is still at preliminary stage nearly two years after he was arrested for alleged diversion of $2.1 billion arms money. Instead, the former NSA has won several cases against the Federal Government both in Nigerian courts and the ECOWAS Court for illegal detention. Yet, he has been in government custody since June 2015.
Former president, Chief Olusegun Obasanjo advised the EFCC to not only carry out thorough investigation of corrupt cases but also hire the services of seasoned lawyers.
His advice came on the heels of President Buhari’s charge to the EFCC to stop losing cases. Said Obasanjo: “One, they engage more of outside lawyers. I believe that they need staunch, ‘Ogbologbo’ (seasoned) lawyers inside that will do the work.
“If I am a lawyer and I want the opponent to win a case, what I will file will be ‘wishy washy’. And if I file a ‘wishy washy’ case, the opponent will see the loophole and he will get out of it. I believe that it is important.
“Secondly, thorough investigation is very important. Now, investigation must be thorough, it must be proper and it must be really taken seriously.
“Third, our judges must be committed in fighting corruption. They must be committed to fighting corruption. Because if the investigation is very sound and you have ‘ogbologbo’ lawyer to handle the case, if you have Salamigate, you know what the answer will be.
“So it is a chain: investigation, prosecution and the judiciary. If there is weakness along this line, chances are that corruption cases will continue to be lost.” Like former President Obasanjo observed, most of these cases were lost because of lack of thorough investigation.
The case of former Minister of Aviation, Chief Femi Fani-Kayode is a case in point. Chief Kayode was charged before Justice Ramat Mohammed in 2008 for allegedly laundering about N100 million during his tenure as the Minister of Culture and Tourism and then, Aviation.
The allegedly laundered sum was, however, reduced to N2.1 million on November 17, 2014 after the court dismissed 38 of the 40-count charge leveled against him for want of proof.
The money was further reduced to N1 million. Justice Rita Ofili- Ajumogobia who finally delivered judgement in the case on July 1, 2015, described the charge as “feeble” and said the EFCC failed to prove its case against Fani-Kayode beyond reasonable doubt.
According to the judge, the commission was unable to identify the person who gave him the money to Chief Fani- Kayode.
The accused was subsequently discharged and acquitted of the money laundry charge. The EFCC has been accused of using “holden charge” to detain accused persons indefinitely without trial. this implies arrest before investigation rather than investigation before arrest.
This also goes to show that there is no thorough investigation of the accused persons before arrest, and probably before arraignment.
Thus, they have proved the former president right that the anti-corruption agency file “wishy washy” case against accused persons, which will, at the end of the day thrown out in court for lack of evidence or deligent prosecution.
Alhaji Lai Mohammed, in the statement said the Federal Government is rigorously reviewing all the judgements delivered in favour of persons standing trial for corrupt related cases.
He however, assured that “the serial negative outcome of corruption cases that were recorded at the high court level would not dampen the anti-graft battle.
“The war against corruption is going to be long, tough and arduous, but this administration is equipped, physically, mentally and intellectually, for the long haul. We must win this war because the law is our side, the people are on our side and God is on our side.
This is only the beginning, so any setback will not deter or discourage us,” he said. Whether the anti-graft agency will learn from these flaws and become more professional, thorough in its investigations, compile case files, gather water-tight evidence that inexorable link financial crimes with criminals remains to be seen.