By Bassey Udo
The twists and turns in the protracted N170.3 million contract fraud case allegedly involving some top officials of Zinox Group and its affiliate, Technology Distributions Limited and their allies came to an anti-climax on Tuesday, as the Attorney General of the Federation and Minister of Justice, Abubakar Malami, opted to exercise his discretionary powers under the constitution in favour of the suspects against the complainant.
The decision by the AGF went against the grain of multiple investigative reports by the police and anti-graft agency, the Economic and Financial Crimes Commission (EFCC), which indicted the suspects.
Section 174(1) of the Constitution 1999 (as amended) confers on the AGF the power to intervene and terminate any case at any time if, in his judgment, based on his review of the trial, there are reasons for him to suspect the possibility of a miscarriage of justice against the accused.
But, AGF Malami’s intervention in the case, by quashing the Fiat he gave Falana to prosecute the suspects appears to have rather aided a miscarriage of justice, as it inexplicable provided an escape route for the powerful and well-connected suspects to evade justice.
It was based on the AGF’s approval on May 10, 2022 of a November 2018 request by respected human rights lawyer, Femi Falana, a senior advocate of Nigeria (SAN), for Fiat to prosecute the high-profile suspects that a 17-count charge was filed on September 9, 2022 against the suspects in suit No. FCT/HC/CR/469/2022 at the FCT High Court, Maitama, Abuja.
Case File
In October 2013, Benjamin Joseph, who is the Managing Director of an Ibadan-based IT retail firm, Citadel Oracle Concept Limited, petitioned the Inspector General of Police (IGP) over a fraud he suspected was committed against his company by some top officials of Zinox Group and its affiliate, Technology Distributions Limited in connivance with some allies.
Joseph said the fraud involved a N170.3 million contract awarded to his company by the Federal Inland Revenue Service (FIRS) for the supply of laptops in 2012. He said the contract was hijacked by the suspects, who illegally executed it and its proceeds shared, without his knowledge and consent, while the appropriate tax was not remitted to the government.
The businessman alleged the suspects also connived with the officials of Access Bank PLC to use his company’s corporate profile obtained from bank to commit the fraud.
Apart from appointing themselves signatories of a fake account No. 0059202675 opened in his company’s name at Access Bank, Joseph said the suspects forged his company documents, including a fictitious board resolution dated December 18, 2012, bearing a caricature of his signature, which they used.
He identified the perpetrators of the crime to include the Legal Adviser/Company Secretary, Zinox Group and Technologies Distributions Limited (TD), Chris Eze Ozims; a director in TD, Folashade Oyebode; the Accountant with TD, Charles Adigwe; the Managing Director/Chief Executive Officer of both Ad’mas Technologies Limited and Pirovic Engineering Services Limited, Onny Igbokwe, and his accomplice, Princess O. Kama, along with two staff of Access Bank PLC, namely Obilo Onuoha and Deborah Ojeabo.
Police stalled the prosecution of suspects
The police in its investigations report of September 26, 2014 signed by Salawu K. A., a Principal State Counsel, found the suspects culpable and recommended they be charged for the alleged crimes of “forgery, conspiracy, impersonation and fraud”. But their arraignment and prosecution by the police was stalled, despite repeated requests by the Director of Public Prosecution (DPP) for the case file to be released to the AGF’s office.
On March 9, 2015, the DPP Mohammed Saidu Diri wrote to the then Deputy Inspector General (DIG) of Police in charge of the Force Criminal Investigation Bureau (FCIB), Solomon Arase, to inform him that his office, after the review of the case file, found “enough convincing evidence to prosecute the suspects” for the crime. Diri requested the original case file from the police to be sent to the AGF for the prosecution of the suspects.
On April 7, 2015, Olayinka Ajeigbe, a Chief Superintendent of Police (CSP), wrote the Commissioner of Police in charge of the Special Enquiry Bureau, FCIID, Olufemi Oyeleye to again request for the case file to be forwarded to the AGF to enable the prosecution of the suspects to commence without further delay. On April 16, 2015, CP Oyeleye forwarded the police investigations report No. CR:3000/X/FHQ/ABJ/SEB/Vol.4/105 to DIG Arase for further directive.
Interesting, the same CP Oyeleye was compelled by DIG Arase to write to the AGF on June 5, 2015 to misinform the AGF that the suspects were already facing prosecution in the Lagos State High Court in civil suit No. LD/4335/14, and that instituting another court action against them would result in subjudice. He advised that the prosecution of the suspects on the same matter should be withheld pending the outcome of the civil case. But, suit No. LD/4335/14 was a civil suit instituted by Joseph against the suspects in 2014 when the fraud was uncovered, and not by the police based on the outcome of its investigations.
On May 8, 2015, Joseph wrote to Arase, following his appointment then as the Inspector General of Police (IGP). He highlighted his frustrations to get the suspects to undergo trial. But IGP Arase on May 14, 2015 through a letter by his Principal Staff Officer II, Abubakar Yahaya, and Assistant Commissioner of Police, advised that the civil matter be allowed to run its full course to “prevent a miscarriage of justice.”
On May 20, 2015, Joseph wrote again to IGP Arase to highlight the various efforts he made to get the police to release the case file to the AGF for the prosecution of the suspects, and expressed his worry over his frustrations.
On June 1, 2015, following the examination of the documents used in committing the fraud, the Police Forensic Report signed by Reginald Odunze, and Assistant Superintendent of Police, confirmed that the signature on the Board Resolution used by the suspects in opening the fake account in Access Bank was “simulated”.
Presidency intervened
In September 2015, Joseph took his case to the Presidency. On December 21, 2015, the Vice President, Yemi Osinbajo, then the acting President, responded with a directive to the EFCC to look into the matter.
However, in June 2016, IGP Arase, shortly before leaving office, ordered the businessman to be arraigned and tried on a one-count charge of “false petitioning”, while the suspects were shielded from prosecution.
Arraigned under charge No CR/216/16, the police, through its prosecutor, Simon Lough, an Assistant Commissioner of Police (ACP), accused the businessman of misleading the DIG FCIID through false petitioning in case of identity theft, impersonation and criminal conversion of contract worth over N170 million committed against his company. Witnesses in the case against the businessman were the suspects. The trial has been on since 2016.
Following the directive by the VP, the EFCC on June 14, 2016 confirmed the commencement of investigation and requested from the Permanent Secretary, Federal Ministry of Justice all documents on the current status of the case, including the legal advice the DPP gave at the end of the police investigation on the fraud.
On June 17, 2016, the DPP Mohammed Saidu informed the anti-graft agency of the frustration by his office to get the police to forward the original case file to the AGF for the prosecution of the suspects.
Regardless, the EFCC went ahead to carry out an independent investigation of the petition by the businessman. Its findings contained in its report also confirmed police indictment of the suspects. The suspects were granted bail after they were quizzed, pending their prosecution.
Similarly, the VP also referred the matter to the AGF, who asked then DPP Mohammad Umar, to wade in an take over the case, DPP Umar on December 7, 2016, actually took over the prosecution of the businessman by the police to avoid a miscarriage of justice.
But the AGF’s decision was reversed few days later following a controversial petition from the counsel to the suspects, Innocent Eremionkhale of Integrity Law Firm, who claimed a civil case was pending against Joseph.
Joseph vehemently denied knowledge about any such case pending against him, except the criminal case No. LD/4335/14 he filed at the Ikeja High Court against the suspects in 2013. The trial on the case is still pending.
On April 11, 2017, Joseph again wrote to VP Osinbajo and AGF Malami to demand the investigation of the then director, International and Comparative Law in the Federal Ministry of Justice, Stella Anukam, accusing her of abuse of office.
Joseph accused Anukam of using her high position to obstruct justice against the suspects. He said his findings showed Anukam was the top Ministry official behind the controversial petition that misled the AGF into reversing himself on the earlier directive to the police to discontinue prosecuting him.
Apart from being the lead partner in Integrity Law Firm that wrote the petition on behalf of the suspects, Joseph said Innocent Eremionkhale, the signatory to the petition, and counsel to the suspects was Anukam’s sibling.
In 2017, when the EFCC quizzed the suspects over their roles in the fraud, Joseph said one of the documents showed Anukam used her position to submit a N150 million surety to some of the suspects, including Chioma Ekeh, the director of TD and wife of the Chairman of Zinox Group, Stan Leo Ekeh.
Falana seeks AGF’s Fiat to prosecute suspects
Meanwhile, with his ongoing trial by the police, Joseph petitioned the AGF Malami, to seek his intervention. On November 1, 2018, Femi Falana requested for a Fiat to prosecute the suspects pursuant Section 104(2) of the Administration of Criminal Justice Act.
On February 27, 2020, the police, at the end of another investigation into the matter by the ‘X’ Squad Section said in its interim report signed by Amechi Elumelu, a Commissioner of Police, confirmed the forensic conducted by ASP Udenze, a handwriting expert with the police, on the documents was “authentic and followed due process.”
Elumelu observed that the one-count charge filed against the businessman by the police was stalling EFCC’s prosecution of the suspects, as the case file was with the police prosecutor, Simon Lough.
He suggested in the report that ACP Lough be prevailed upon to immediately withdraw the case against the businessman and transfer the case file to the X-Squad in view of the “overwhelming evidence of bias in the prosecution of the case.” The report recommended that ACP Lough should be sanctioned for misconduct, while the suspects should be arrested and prosecuted immediately.
Pursuant to their fundamental right, the suspects filed suit No. FHC/L/CS/1651/2020 through their counsel, Innocent Eremionkhale, supported by the police prosecutor, Simon Lough, seeking to stop the Elumelu-led X-Squad from arresting, detaining and questioning them in connection with the fraud.
But on October 4, 2021, the court presided over by Justice TG Ringim dismissed the applications by the suspects for lack of merit. The Judge ruled that the court cannot be used to stop the police from performing its lawful duty of investigating, arresting and prosecuting suspects named in a criminal case. The judge declared that the police, like the AGF, has the right to arrest, investigate and re-investigate a matter any time, while an accused persons in a criminal case cannot stop the police from carrying out their lawful duty. Each of the suspects were fined N25,000.
EFCC’s selective trial
Despite its findings that all the suspects were culpable of the crime, the EFCC, on June 18, 2018, opted to selectively arraign and charge only two of the suspects – Igbokwe and Kama, despite protests by the complainant’s counsel.
Besides, Joseph said the prosecution of the two suspects by EFCC prosecutor, Jude Obozuwa, was based on strange charges not derived from the facts contained in his petition to the IGP.
Joseph said while his petition said the fraud was based on the forgery of his company’s Board Resolution dated December 18, 2012, the EFCC prosecutor charged the suspects based on a non-existent document dated December 14, 2012. A petition to the Director of the Legal Unit of the EFCC by Akin Onigbinde, SAN, legal counsel to the businessman, highlighted several loopholes in the charge by the EFCC against the suspects.
Apart from the charge not representing the complaint by his client, Onigbinde said after seven complaints, the EFCC prosecutor refused to amend the charges, and failed to bring to court vital evidence that could help prove his case against the suspects, including the forensic report on the forged signature and the account opening documents from Access Bank. Onigbinde’s submission was that EFCC’s charge against the suspects were deliberately constructed to fail, to exonerate the suspects.
In another petition dated August 31, 2020, Joseph drew the attention of the EFCC Chairman to the various misconduct by the agency’s prosecutor, including the deliberate concealment of vital evidence, highhandedness and physical assault against him. He accused the prosecutor of plotting to shield the suspects from being indicted, despite forensic evidence of the commission of the crime.
Justice Senchi’s questionable ruling
As a result of the apparent deliberate contradictions and non-diligent prosecution by the EFCC, the suspects were on February 24, 2021 discharged and acquitted by the High Court of the Federal Capital Territory, Jabi, Abuja, presided over by Justice Danlami Senchi, despite his indictment of the EFCC for failing to file the right charge against the suspects.
Curiously, Joseph, who was not a party to the case, nor was he given the chance to testify during the proceedings, was fined N20 million, allegedly for refusing to appear during the hearings to defend his case.
Again, AGF moved against “unjustified persecution”
Regardless, Joseph again petitioned AGF Malami, to seek his intervention in what he called “unjustified persecution”. On November 15, 2021, the DPP, on the orders of the AGF, through letter No. DPP/ADV/1009/14, signed by Abdulrahim Opotu Shuaibu, an Assistant Director of Public Prosecution in the Ministry of Justice, sent Bagudu Sani, a senior state counsel in the Ministry, to the FCT High Court, Maitama, presided over by Justice Peter Ekekemeke, to take over the continued trial by the police of the complainant. It was the second time the AGF would be taking over from the police the prosecution of the nominal complainant since December 7, 2016.
On May 10, 2022, AGF Malami approved the request by Falana on November 2018 for special powers to prosecute the suspects for the crime. Pursuant to the Minister’s order, Falana, on September 9, 2022, filed the 17-count charge at the High Court of the FCT against the suspects.
Those listed in the charge sheet for arraignment on behalf of the AGF included the Chairman of Zinox Group, Leo Stan Ekeh, his wife, Chioma, and 11 others suspected to have been implicated in the N170.3 million fraud.
Other suspects included the Legal Adviser/Company Secretary, Zinox Group and Technologies Distributions Limited (TD), Chris Eze Ozims; a director in TD, Folashade Oyebode; the Accountant with TD, Charles Adigwe; the Managing Director/Chief Executive Officer of both Ad’mas Technologies Limited and Pirovic Engineering Services Limited, Onny Igbokwe, and his accomplice, Princess O. Kama, along with two staff of Access Bank PLC, namely Obilo Onuoha and Deborah Ojeabo. The three companies linked with the alleged fraud following findings through police investigations included Technologies Distributions Limited (TD), Ad’mas Technologies Limited and Pirovic Engineering Services Limited.
Unexpected twist
But following the filing of the charges against the suspects, unexpected developments were reported surrounding the case. Although the suspects, through their legal counsels, Mathew Burkaa, SAN, Innocent Eremionkhale and seven others, filed a process, No. M/11480/2022, on October 6, 2022, to open their defence for the crime, the case file containing the charge suddenly disappeared from the central registry of the court in mysterious circumstances.
The file was said to have disappeared between the Office of the Director of Litigation, FCT High Court, Maitama, where the application was initially filed, and Court 13, FCT High Court, Gwagwalada, where the case was to be assigned, pending the commencement of the prosecution of the suspects. All efforts by the management of the Court to trace the file proved abortive.
While the file was still missing, the suspects and their agents were all over the media with the narrative that there was no legal charge in court anywhere pending against them over the crime. Curiously, immediately the Court management opted to open a fresh file, transfer the same charge number on it, and reassign1 the case to Court 32 of the FCT High Court, Apo, Abuja, the missing case file mysteriously resurfaced at the FCT High Court, Gwagwalada, giving the case two files in two different courts.
However, following the November 1, 2022 announcement by the FCT High Court, Apo fixing the arraignment of the suspects for Tuesday, November 8, 2022, before Justice C. O. Oba, the intrigues surrounding the case heightened. Apart from reports that the suspects were behind several Zinox-branded laptops that flooded the Ministry of Justice apparently to procure the support of the top hierarchy of the Ministry, those close to the Office of the DPP and the AGF said the pressure from certain high quarters with more than a passing interest in the case, including the Presidency, on both offices to truncate the prosecution of the high-profile suspects was palpable.
AGF sides with suspects against victim
Unsurprisingly, on Thursday, November 3, 2022, a letter signed by the DPP Babadoko Abubakar, on behalf of the AGF suddenly surfaced in public. The letter backdated to October 28, 2022, and addressed to the Principal Partner, Falana & Falana Chambers, Abuja, was said to have been authorized by the AGF purporting to have withdrawn the prosecutorial powers he had earlier granted Falana.
In the letter, DPP Abubakar said he was directed to write to inform Falana that the AGF, in the exercise of the power conferred upon him by Section 174 (1)(c) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, has withdrawn the authorization earlier granted to him, dated May 10, 2022 to prosecute the suspects in the case by the nominal Complainant, Joseph Benjamin, FGN vs Chris Eze Ozims & 6 Ors. in charge No. CR/8327/2013.
By the letter, Abubakar said Falana was requested to withdraw from court charge No. FCT/HC/CR/469/2022”in the interest of justice.” He did not give further details on what may have informed the AGF’s decision to reverse himself for the third time since the case was brought before him in 2016.
However, Charge No. CR/827/2013 contained in the letter of May 10, 2022, signed personally by the AGF conflicted with Charge No. CR/8327/2013 the DPP referred to in his letter of October 28, 2022, to Falana.
Surprised over the decision by the AGF to reverse himself and direct the DPP to write the letter to withdraw the Fiat earlier granted to his law firm to prosecute the suspects, Falana reportedly wrote to the AGF to seek his clarification over the observed breach of the procedure for the withdrawal of the Fiat.
Falana was quoted to have observed that the AGF, who personally signed the letter that gave approval to his request for Fiat to prosecute the suspects, could not have asked the DPP to sign the letter to inform him of the withdrawal of the same, particularly when he, on two previous occasions, had faulted the trial by the police of the nominal complainant, and sought the prosecution of the suspects over the crime, after reviewing the case file. But the clarification from the AGF was not forthcoming,
Court strikes out charges against suspects
In court on Tuesday, Marshall Abubakar, a counsel from Falana & Falana Chambers, who represented Falana, drew the attention of the court to the conflict in the Charge Nos contained the May 10 and October 28, 2022 letters by the AGF and DPP respectively, and the observed procedural breach in the withdrawal of the Fiat. But, the presiding judge, Justice Oba insisted there was no such conflict, so long as the case file No. FCT/HC/CR/469/2022 was the same in both letters, a copy of which was already in possession of the court. Also, the Judge clarified that there was no breach in the procedure, as the DPP, which signed the letter withdrawing the Fiat, did so as a staff of the AGF’s office.
Consequently, the Judge struck out the case. The surprise decision by the AGF to revoke the Fiat he earlier gave to Falana after duly reviewing the case file has not only effectively thwarted the prosecution of the suspects, but also further jeopardized the chances of the nominal complainant getting justice from a system that should protect the interest of the less privileged in the society.
After being subjected to over six years of trial by the police, which the AGF had earlier described as “unjustified”, and directed the police to terminate his prosecution, the nominal complainant is left to rue the frustrations of citizens in their quest for justice in their country.
The AGF did not offer any explanations on what informed his decision. He did not answer calls to his telephone on Tuesday, neither did he respond to text messages sent to him by this reporter seeking clarifications over what he meant by his directive to Falana to withdraw the charge against the suspects “in the interest of justice”, despite the overwhelming evidence of complicity by the suspects in the fraud.
EDITOR’S NOTE
WE STAND BY OUR STORY
On Friday, January 6, 2023, we received a letter dated December 8, 2022, from Mathew Burkaa & Co. (Legal Practitioners). The letter was signed by Mathew Burkaa, a senior advocate of Nigeria (SAN), who claimed to be the solicitor for Mr. Leo Stan Ekeh, Chairman of Zinox Technologies Limited.
In the letter, Burkaa alleged that our publication of November 9, 2022 titled: ‘N170.3m FIRS Contract Fraud: How AGF Malami gave safe passage to Zinox Chairman, wife, 11 other suspects’ was false and defamatory against his client.
He therefore demanded that we, immediately, retract the story and publish a public apology in at least three national newspapers, failure which he threatened to commence legal proceedings against us in court, to claim exemplary damages for libel, to the tune of N10 billion.
We have already briefed our legal counsel, Femi Falana, a respected human rights lawyer and senior advocate of Nigeria (SAN), of Falana & Falana Chambers, about the development. We have also updated our petition to the Department of State Services (DSS) on the matter for them to be abreast with the latest situation.
The management of MEDIATRACNET NIGERIA is not only fully aware of the sacred role the media plays in the society, we are also well familiar with the responsibilities we, as an organisation, owe the public, to inform and educate the people about all developments in a manner that enables them make rational and informed decisions about the affairs and happenings in their environment.
These are roles and responsibilities we have performed for many years with due diligence, honesty and commitment without fear, favour, affection or ill-will, in the overall interest of the public.
Consequently, we do not plan, or contemplate to retract any word from our story, or tender any apology to anybody. We stand solidly by our story. We are supremely confident that our facts are unimpeachable in every material particular.
We stand ready to vigorously defend our reportage anywhere, because we are convinced we did not malign or defame anybody’s character or reputation.
Sadly, we note that Ekeh is treading a familiar path. In his conscience, he knows the truth. He has no intention to allow justice to freely take its course. Its a shame he tried the same tactics before and got a deal that obliged him a convenient out-of-court settlement. We challenge Ekeh to go ahead and make good his threat to sue us in court.
