How Court dismisses N40bn case against Bankole, Nafada
On February 1, 2012 · In News

By Ikechukwu Nnochiri & Daud Olatunji
ABUJA – An Abuja High Court sitting in Apo, Abuja, yesterday, dismissed the 17-count charge of criminal breach of trust in the procurement of a N40 billion loan for the House of Representatives preferred against the erstwhile Speaker, Dimeji Bankole and his deputy, Usman Bayero Nafada, by the Economic and Financial Crimes Commission, EFCC.

“Chasing shadows”

Upholding the no case submission of the accused persons, the court presided over by Justice Suleiman Belgore, affirmed that the EFCC was “chasing shadows” in the prosecution as it maintained that the Clerk of the House and other bureaucrats, being the accounting officers, should have been the ones docked by the EFCC.

Nafada and Bankole

The court, nevertheless, affirmed that it was morally wrong, morally indefensible and morally insensitive for the members to have increased their “running costs” from N27million per quarter, per member, to N42million. That, however, did not amount to a criminal offence but a moral wrong, Justice Belgore ruled yesterday.

Chief Alani Bankole, father of the erstwhile Speaker and a chieftain of the Peoples Democratic Party, PDP, welcomed the judgment yesterday saying that it was a vindication for Dimeji who, he alleged, was persecuted for his beliefs.

In his judgment that lasted over three hours, the judge maintained that the anti-graft agency failed to establish its allegation that the duo breached public trust in their leadership of the House of Representatives between 2007 and 2011.

EFCC’s allegation

EFCC had in a proof of evidence it tendered before the high court, alleged that the former Speaker and his deputy, being entrusted with House of Representatives’ Account No.00390070000018 with the United Bank of Africa Plc and the Overhead Account of the House of Representatives with First Bank of Nigeria Plc, property of the Federal Government of Nigeria, dishonestly used the said accounts to obtain loans of about N40 billion.

It equally alleged that after the said loan was secured, the former speaker and his deputy, acting in breach of public trust, used the sourced money to enhance allowances and ‘running costs’ of the House members, saying their action was in violation of the approved remuneration package for political, public and judicial office holders as prescribed by the Revenue Mobilization Allocation and Fiscal Commission, RMAFAC, and the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009.

According to the prosecution, the offence the ex-lawmakers committed, ran contrary to section 97(1) of the Penal Code Act, Cap 532, Laws of the Federation of Nigeria (Abuja) 1990, and is punishable under section 315 of the same Penal Code Act.

However, following a “no-case-submission” that was made by counsel to the accused persons, Justice Belgore, yesterday, dismissed the matter for want of incriminating evidence, even as he accordingly discharged the accused persons.

Judge dismisses case

Before he dismissed the case, Justice Belgore maintained that having gone through the totality of proof of evidence before the court as well as the oral testimonies of all the witnesses that were called by the EFCC, he was convinced that the two accused persons did not commit any offence known to the Nigerian law.

He said what the accused persons did while in office was not salary or allowance increase but enhancement of the running cost of members in tune with the approved budgetary allocation for the lower chamber, adding that there was no nexus linking the accused with any case of conspiracy or theft as was alleged by the EFCC.

He said: “Under all the relevant statutes and the constitution, obtaining loan by any department is not a crime and there is no penal provision for it. It is therefore my considered view that the proof of evidence did not connect the accused persons with committal of any offence or such acts that should warrant their continued trial before this court.”

Besides, the court also noted that going by the allegations raised by the anti-graft commission, the Clerk of the House and other management staff of the National Assembly, being the accounting officers, ought to have been prosecuted by the EFCC over the alleged illicit loan saga, stressing that the commission rather resorted to “chasing shadows.”

Nevertheless, the court observed that, “though it is morally wrong, morally indefensible and morally insensitive for the members of the House of Representatives led by Bankole and Nafada to have increased their “running costs” from N27million per quarter, per member, to N42million, it did not amount to a criminal offence but a moral wrong.”

The court reasoned that the legislature, being a different arm of government, the Revenue Mobilization Allocation and Fiscal Commission (RMAFC) could not fix the “running costs” for members of the House of Representatives. They are at liberty to increase their “running costs” to whatever amount they so collectively wish, adding that RMAFC can only fix “wages” and “allowances” and not “running costs” and that “running costs” do not qualify as “allowances”.

Bankole and Nafada had in a no-case-submission they made through their respective counsels, Chief Olawale Akonni (SAN) and Mr Tayo Oyetibo (SAN), argued that “there is no scintilla of evidence contained or shown in the proof of evidence placed before this Honourable court, capable of warranting the inference or of leading to the conclusion that the Accused/Applicants breached the provisions of Section 311 of the Penal Code Act Cap. 532, Laws of the Federation of Nigeria (Abuja) 1990 in the manner alleged in Counts 7, 8, 9, 10 and 11 of the Charge or at all.”

The former speaker while contending that he could not be tried for the acts, decisions and resolutions of the House of Representatives, taken at its Executive or Committee sessions because the principle of vicarious liability was unknown to criminal law in Nigeria, maintained that “the offences of criminal breach of trust and theft as alleged in Counts 2-17 if the Charge (as contemplated or defined in the Penal Code) cannot be committed by the applicant by ‘obtaining a loan to augment allowances and running costs of members of the House of Representatives in violation of the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009 or at all.”

According to him, “The offences of criminal breach of trust and theft as alleged in Counts 2-17 of the Charge (as contemplated of defined in the Penal Code) cannot be committed by the Applicant by ‘indiscriminately increasing the allowances of members of the House of Representatives in violation of the approved Remuneration Package for Political Public and Judicial Office Holders by the Revenue Mobilization, Financial Regulations of the Federal Government of Nigeria, 2009’ in that the Revised Regulations stipulate a punishment for the breach of its provisions.

“An agreement to ‘approve the allowances and/or “running cost” of Members of the House of Representatives in violation of the approved Remuneration Package for Political, Public and Judicial Office Holders by the Revenue Mobilization, Allocation and fiscal Commission and the extant Revised Financial Regulations of the Federal Government of Nigeria, 2009’ as alleged in Count 1 of the Charge cannot be an offence within the purview of Section 97 (1) of the Penal Code Act unless it be shown in addition that at the time of giving the alleged approval, the Applicant did not have the real or ostensible authority to give approval in his position as Speaker of the House of Representatives and/or that he gave the said approval for his own purpose.

“The Applicant cannot be charged with the offence of ‘dishonestly’ using account no. 00390070000018 to obtain a loan as alleged in courts 2-6 of the Charge and at the same time be charged with misappropriating the sums alleged in Counts 7-17 of the Charge by referring to the loan as ‘property of the Federal Government of Nigeria’ having regard to the fact that an alleged illegal loan facility from a commercial bank, cannot at the same time be the property of the Federal Government of Nigeria, capable of being misappropriated or stolen.

“The offence of agreement to commit a felony alleged in Count 12 of the Charge is unknown to any written law in that within the meaning and contemplation of Section 97 (1) of the Penal Code Act, an agreement to ‘approve the allowances and/or “running cost” of Members of the House of Representatives by a resolution of the House of Representatives at its Executive Session without the consent and approval of the Revenue Mobilization, Allocation and Fiscal Commission’ cannot be an agreement to commit an infraction of any written law or at all.

“The Accused Person/Applicant was not by the Constitution of the Federal Republic of Nigeria, 1999, National Assembly Service Commission Act or any other legislation, a public officer or a management staff or a custodian or person in possession of the properties of the House of Representatives or the property of the Federal republic of Nigeria, as alleged and cannot be liable under any law to account for the properties of the House of Representatives or the Federal government of Nigeria.

The Applicant as the Speaker of the House of Representatives of the Federal Republic of Nigeria under the Constitution of the Federal Republic of Nigeria, 1999 has defined functions and duties which did not include possession or entrustment with the properties or with dominion over any property of the House of Representatives as alleged and can therefore not be charged with criminal breach of trust under Section 311 and punishable under Section 315 of the Penal Code.

“The Accused/Applicant in his capacity as Speaker of the House of Representatives and in exercise of his powers as Chairman of the Principal Officers of the House of Representatives at Plenary, Executive or Committee session of the House of Representatives acted in official capacity and not personally, he cannot be personally liable for any criminal prosecution.”

It will also be recalled that among those who testified as prosecution witnesses in the matter included the clerks of the National Assembly and House of Representatives, Abubakar Salisu Maikasuwa and Mohammed Ataba Sani-Omolori, respectively, the Director of Finance of the National Assembly, Mr Bukoye Lasisi, bank officials, and top officials of the RMAFC.

On the role he played with regards to the said controversial loan, the Clerk told the court, “I endorsed memo for the said loans in compliance with the resolution of the House which is binding on all principal authorities.”

Meantime, the EFCC yesterday vowed to appeal the ruling, saying it is convinced that the former lawmakers still have a case to answer over alleged uncanny roles they played as it relates to the loan saga.

Reacting to the judgment shortly after the proceeding yesterday, counsel to the commission, Mr Festus Keyamo, insisted that the duo were not charged to court for, “over-spending, but for the misappropriation of funds.”

He said their complicity was established by the sole fact that there was a resolution to commit an illegal act, in a meeting he said was presided by the accused persons, maintaining that the proof of evidence before the court was enough to secure their conviction.

According to Keyamo, “this charge is only in relation to the allegations of obtaining illegal loans and the indiscriminate increase of the “allowances” and “running costs” from N27million to N42million per member, per quarter, under the leadership of the accused persons. The charge in relation to the contravention of the Public Procurement Act, to wit: inflation of prices of goods purchased for members of the House of Representatives is still pending before the Federal High Court, Abuja

“We do not know how the judge arrived at the conclusion that the loans have been fully paid back when the loan obtained from First Bank Plc remains unpaid as manifestly shown in the evidence of PW 9 above (as against that of UBA)”, he added.

Receiving some supporters of his son at his family house located at Oluwo, Onikolobo, in Abeokuta South Local Government, yesterday the erstwhile Speaker’s father, Chief Bankole said he was grateful to God for the court victory.

“I always had the belief that Dimeji is not guilty but was being persecuted for what he believed in. I thank God! We had always prayed to almighty Allah during the travails, we did not rely on any human, but on God alone and like the saying that, he that depends on God should not depend on ordinary mortal again. That was our pillar, and we believed that we were going to be vindicated at last.”

“With the judgment, the court has vindicated the stand of my son and the majority of Nigerians and I thank God that the Judiciary has lived up to the expectation of Nigerians,@ he said.

Also reacting to the judgment, former media aide to the erstwhile Speaker, Kayode Odunaro said that the Judiciary had demonstrated that it remains the last hope of ordinary people, saying that, the Nigeria judicial system has improved considerably.

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