Why EFCC, ICPC, AGF May Lose More Corruption Cases

Some top lawyers have suggested to the various anti -corruption and law enforcement agencies how the trend of losing high- profile corruption cases can be reversed , ADE ADESOMOJU reports

On April 3, 2017, which was Monday , the first working day of the week, the Federal High Court in Lagos lifted the order barring a Senior Advocate of Nigeria , Chief Mike Ozekhome , from accessing his Guaranty Trust Bank account into which he received N 75m legal fee from the Ekiti State Governor , Ayodele Fayose.

The Economic and Financial Crimes Commission had on February 7, 2017 obtained an interim order stopping Ozekhome from dissipating the N 75m on the grounds that it formed part of proceeds of alleged criminal activities of Fayose .

The EFCC claimed that the N 75m which Fayose paid to Ozekhome was part of the N 2.26bn arms procurement funds, which a former National Security Adviser , Col . Sambo Dasuki ( retd .), allegedly looted.
The anti – graft agency claimed to have traced N 1.22bn out of the N 2. 26bn, which Dasuki allegedly looted, to Fayose.

On that basis Justice Abdulaziz Anka had on February 7 frozen Ozekhome ’ s account for 120 days.
Displeased, however , Ozekhome approached the court urging the court to vacate the interim order.

In his ruling , Justice Anka granted Ozekhome ’ s prayer and dismissed the counter-affidavit filed in opposition by the EFCC.

The judge said though it was not in doubt that the N 75m came from Fayose , Ozekhome could not be held liable because there was no restriction on Fayose ’ s account as of the time the N 75m was paid to his law firm.

Justice Anka noted that the freezing order earlier obtained by the EFCC in respect of Fayose ’ s accounts had been lifted by Justice Taiwo Taiwo of the Federal High Court in Ado Ekiti.

Justice Anka said he would not allow himself to be lured into sitting as an appellate judge over the counter- decisions of Justice Mohammed Idris who earlier froze Fayose ’ s account and Justice Taiwo who later unfroze the account .

In the final anaysis , the judge said he found sufficient grounds to reject the EFCC ’ s counter-affidavit , including the fact that Ozekhome had already dissipated the N 75m which the EFCC sought to stop him from touching.

The ruling marked the beginning of the streak of losses that hit the various government ’ s frontline anti -corruption and law enforcement institutions that week.

In a manner similar to how the Nigeria ’ s seat of power shifted from Lagos to Abuja in 1991, barely 24 hours after the EFCC lost the case against Ozekhome , the ship of failure moved from Lagos to Abuja.

On Tuesday, April 4, a High Court of the Federal Capital in Apo, Abuja , struck out six charges involving alleged N 1.97bn fraud preferred against a former Minister of Niger Delta Affairs , Mr . Godsday Orubebe , by the Federal Government.

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Justice Olukayode Adeniyi struck out the case and discharged Orubebe and other defendants after the Independent Corrupt Practices and other related offences Commission, the agency which filed the case , withdrew it.

Orubebe was charged along with others including an Assistant Director at the Ministry of Niger Delta Affairs , Mr . Oludare Alaba.

The other defendant was the Director of Contracts , Gitto Costruzioni Generali Nig . Ltd . , Mr . Ephraim Zari.

The prosecution had alleged in the six counts that the defendants , including Orubebe , who was then the Minister of Niger Delta Affairs under the former President Goodluck Jonathan administration, diverted funds meant for the compensation of owners of properties on Eket Urban section of the East- West Road in Eket , Akwa Ibom State.

All the defendants had pleaded not guilty to the six counts and had been granted bail by the court .
Trial was scheduled to commence on April 4.
But at the resumed hearing on that day, instead of calling its first witness , the ICPC , through its prosecuting counsel , Mr . Ekoi Akpos , applied to withdraw the case.

Akpos informed the judge that the commission decided to terminate the case following an understanding from all the parties that the road construction project would proceed as originally planned with compensation paid to those whose properties were damaged.

He hinged his application to withdraw the case on sections 492( 3) and 355 of the Administration of Criminal Justice Act , 2015.

Meanwhile, shortly after the defendants were arraigned last year, the Attorney General of the Federation and Minister of Justice, Mr . Abubakar Malami ( SAN) , had sent a letter to the Chairman of the ICPC , Ekpo Nta , confirming that the N 1, 965, 576, 153. 46, which Orubebe allegedly diverted, had not been expended .

The letter, with reference number, DPPA /MNDA /345/16, was signed on behalf of the AGF by the Director of Public Prosecutions of the Federation , Mr . U. E . Mohammed.

It confirmed that the money in issue “ has not been expended , but is awaiting further contract decisions and directives from the Ministry of Niger -Delta Affairs. ”

The letter dated December 16, 2016, added , “ In view of the above, the basis for the prosecution of the accused persons for misappropriation does not exist and thus, further prosecution cannot be justified . ”
Almost every day of that week marked a new low in the anti -corruption war.

On April 5, the day after Orubebe’ s case was struck out , a High Court of the Federal Capital Territory in Maitama , Abuja , also dismissed all the 18 counts, including gratification charges preferred against Justice Adeniyi Ademola of the Federal High Court , his wife Olubowale, and a Senior Advocate of Nigeria , Mr . Joe Agi.

Justice Jude Okeke discharged and acquitted the three defendants in a ruling upholding the respective no -case submissions filed by the defendants.

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The charges were filed last year by the Office of the Attorney General Federation following the raid by the Department of State Services on the judge’ s house on October 7, 2016.

The prosecution had accused Justice Ademola of receiving , through his wife , gratification worth N 30m from Agi in April 2015.

Justice Ademola also allegedly received through his son , Ademide , a BMW car worth N 8. 5m from Agi in January 2015.

But in his April 5 ruling , Justice Okeke held that the prosecution failed to make out a prima facie case against the defendants , in spite of calling 19 witnesses and tendering a load of exhibits marked A to ZZZ.

Justice Okeke, in his final comments in his ruling which he delivered for about three hours, said the case of the prosecution was built on “ high -level suspicion which could only catch the fancy of pedestrians and uniformed minds. ”

He said , “ There is no gainsaying that the case is built on high -level suspicion and speculation fuelled by the enthusiasm of the very important Nigerians’ current fight against corruption.

“ While such level of suspicion and speculation can, in the eyes of pedestrians and uninformed ordinary persons in the marketplace , suffice for the defendants to be condemned in order to appeal to the fight against corruption, in the eyes of the law , however , suspicion does not measure up to the standard required for the defendants to be condemned to further trial .

“ This is to the extent that in our legal jurisprudence , which is still adversarial , the burden of proof that a person is guilty of an offence is the duty of the prosecution or the complainant.

“ It will be a sad day if this extant state of the law is kicked aside by the court , and the defendants made to prove their innocence by subjecting them to further trial in order to achieve the approval and applause of uninformed minds.

“ This brings to the fore the need for our security /law enforcement and prosecutorial agencies to patiently conduct thorough investigation before suspects are arraigned in court .

“ The nation will be better off in its fight against corruption. ”

Closing the gale of losses on April 6, a Thursday, the Federal High Court in Lagos , vacated its order which late last year froze the Skye Bank account of Mrs. Patience Jonathan , the wife of ex – President Goodluck Jonathan.

The account had a balance of $5. 9m .
In a ruling on Thursday, Justice Mojisola Olatoregun , set aside the ‘ No -Debit Order ’ , which the EFCC had earlier placed on the account on allegations that the $5. 9m found in it was proceeds of crime.

The judge upheld the contention of Patience ’s lawyer , Mr . Ifedayo Adedipe (SAN), that his client ’s account was unlawfully frozen by the EFCC.

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Adedipe had urged the court to unfreeze Patience ’ account on the grounds that she was not a party to the suit leading to the freezing order.

The developments overshadowed other successes recorded by particularly, the EFCC, in the same week .
For, instance , on Friday, the day after Mrs . Jonathan ’ s account was unfrozen , the EFCC secured the second conviction of an oil marketer , Mr . Jubril Rowaye, sentenced to 10 years imprisonment for fuel subsidy fraud .

Justice Adebukola Banjoko of the FCT High Court passed the sentence about a month after Justice Lateefa Okunnu of the Lagos High Court also convicted and jailed Rowaye 10 years for similar offences .

Commenting on the turn of events in the Federal Government ’ s anti – corruption fight, human rights lawyer , Mr . Femi Falana ( SAN) , said while there were other inherent problems, the trend of failure of high -profile cases being handled by the anti – graft agencies was due to official negligence and lack of inter -agency cooperation.

He said , “ Having reviewed the circumstances under which the corruption cases were lost by the Federal Government I can say , without any fear of contradiction, that there is no basis for blaming the judiciary. It is also not a case of corruption fighting back . As far as I am concerned , the cases were lost due to official negligence and lack of inter -agency cooperation by the Federal Ministry of Justice , the anti – graft agencies and the State Security Service . ”

A professor of Public Law and a Senior Advocate of Nigeria , Yemi Akinseye – George, while expressing concern about the trend of losing high- profile cases by the various anti -corruption agencies, identified poor funding and the inefficient Nigerian legal system as major problems.

The don, who is also the President of Centre for Socio-Legal Studies , a civil society group credited with major contributions to the development of the nation ’ s criminal justice system , posited that one could hardly blame judges for the criminal cases being lost in court by the nation ’ s anti – graft agencies.

According to Akinseye -George , while prosecutors contend with lack of resources and poorly investigated cases caused by paucity of funds , the Nigerian legal system also places wealthy defendants facing criminal trial in more advantageous positions over the anti – corruption agencies.

He said , “ In the justice system , the output very much depends on the input. You cannot be putting in pittance in support of your prosecutorial agencies and expect that you get the desired result. The prosecutors are doing their best within the available resources but there is limit to what they can do.