By Bassey Udo
The Chairman of Zinox Group, Stan Leo Ekeh, along with his wife, Chioma, and four other suspects charged by the Federal Government over alleged involvement in a N170.3 million contract fraud have filed a process to open their defence for the crime.
The legal process, No. M/11480/2022 dated October 6, 2022 was filed on their behalf by a team of lawyers led by Mathew Burkaa, a senior advocate of Nigeria (SAN), along with Innocent Eremionkhale and seven others.
This is coming days after representatives of Zinox Group in several media publications and interviews denied knowledge of any criminal prosecution against their principal in any court in the country.
Contrary to claims by the suspects, hearing is pending almost eight years after Joseph filed a civil case No. LD/4335/2014 in November 2014 before the Lagos State High Court, Igbosere against the suspects.
Although the suspects filed an application on October 4, 2016 urging the court to dismiss the case against them, the then presiding Judge, Justice Femi Adeniyi on May 2, 2017 dismissed all their preliminary objections, insisting they have a case to answer.
A N100,000 cost each was imposed against them, while the case by Access Bank was equally dismissed with a N50,000 cost.
Again, on December 19, 2020, the Federal High Court in Lagos presided by Justice Chuka Obiozor dismissed another application by the suspects who sought to enforce their fundamental rights by restraining the police from arresting, detaining and investigating them over the crime.
Details of latest defence by suspects
But, in a motion on notice obtained by MEDIATRACNET on Wednesday in Abuja, the defence counsel said the application was on behalf of Stan Leo Ekeh; wife, Chioma, and Chris Eze Ozims, Folashade Oyebode, Charles Adigwe as well as Technology Distributions Limited (TD).
The process was in response to a formal legal charge earlier filed by human rights lawyer, Femi Falana, SAN, on September 9, 2022 against the suspects on behalf of the Attorney General of the Federation, Abubakar Malami, SAN.
Falana had filed a charge at the High Court of the Federal Capital Territory, Maitama against 13 persons suspected to have played different roles in the alleged N170.3million fraud perpetrated against Benjamin Joseph, the Managing Director of an Ibadan-based ICT retail firm, Citadel Oracle Concepts Limited.
In the 17-count charge, No.FCT/HC/CR/469/2022, Falana accused the suspects of conspiracy to hijack a contract for the supply of laptops awarded to Joseph’s company in 2012 by the Federal Inland Revenue Service (FIRS).
The suspects were also accused of conspiring with one Princess Kama and the Managing Director/Chief Executive of both Ad’mas Technologies Limited and Pirovic Engineering Services, Onny Igbokwe, to illegally execute the contract using Citadel Oracle’s name without the knowledge and consent of its owner, Joseph.
Also, the suspects, led by Chris Eze Ozims, the legal adviser/Company Secretary of Zinox Group and TD, along with a director with TD, Folashade Oyebode, were accused of conniving with two officials of Access Bank – Obilo Onuoha and Deborah Ojeabo, to remove confidential account documents belonging to Citadel Oracle with the bank and forging same, including Joseph’s signature on a fictitious resolution of the company’s Board of Directors used in opening a fake account through which the proceeds of the fraud were received and shared by them.
Both Igbokwe and Kama, along with Ad’mas and Pirovic as well as Access Bank and their two staffers indicted in the crime by the findings of the Serious Fraud Unit of the Federal Bureau of Criminal Investigations Department (FBCID) of the Nigeria Police are yet to file their defence.
However, in the motion on notice filed by the counsel to Ekeh and five others, Burkaa, pursuant to Sections 35 and 36 of the Constitution of the Federation of Nigeria (as amended), asked the court to dismiss the charge against his clients on the ground that it constitutes an abuse of the judicial process.
Burkaa based his application on the foundations that, apart from Joseph still having a criminal charge No. FCT/HC/CR/216/2016 pending against him at the FCT High Court, and Maitama, the High Court of the FCT, Jabi, formerly presided by Justice Danlami Senchi had already entered judgment on February 24,2021 that indicted him in charge No. FCT/HC/CR/244/2018.
Alternatively, counsel to the suspects asked the court to dismiss the charge against them on the ground that it constitutes “a direct, unlawful interference with the administration of justice” in charge No. FCT/HC/CR/216/2016 they said was still pending before Justice Peter Kekemeke of the High Court of the FCT, Maitama.
Burkaa claimed two other of his clients – Chioma Ekeh and Chris Eze Ozims – have no case to answer, as they were prosecution witnesses in case No. FCT/HC/CR/244/2018 in which Justice Senchi entered judgment that discharged and acquitted two of the suspects – Igbokwe and Kama in February 2021, while a fine of N20 million was imposed on Joseph.
Facts in two referenced cases
Charge No. FCT/HC/CR/216/2016 was filed by the police in 2016 against Joseph after he was accused of “false petitioning” of the Inspector General of Police (IGP).
In 2013, Joseph petitioned the IGP to complain about the fraud uncovered against his company allegedly perpetrated by the suspects.
Although investigations by the SFU of the Nigerian Police Force were concluded in 2014 and a prima-facie case established against the suspects, Joseph said the police refused to prosecute the suspects.
Joseph had accused the suspects of deploying all sorts of devious means, including the manipulation of the courts, the police and anti-graft agencies to evade trial.
On May 8, 2015, Joseph said he again petitioned the then IGP, Solomon Arase, to highlight his company’s frustration to get the police to transfer the case file to the DPP for the prosecution of the suspects.
However, Arase refused to take action against the suspects. Rather, he said Arase advised that the civil case No.LD/4335/2014 he filed in November 2014 against the suspects at the Federal High Court, Igbosere, Lagos should be allowed to run its full course before the criminal case, to avoid the miscarriage of justice.
Not satisfied, Joseph petitioned Vice-President Yemi Osinbajo, who directed the Economic and Financial Crimes Commission (EFCC) to look into the matter.
Although the EFCC quizzed the suspects and confirmed their complicity in the crime, the police still refused to prosecute them.
In a curious twist of fate, on June 16, 2016, prior to Arase’s exit from office, Joseph was charged by the police allegedly for “false petitioning of the IGP” in a case the suspects were used by the police as prosecution witnesses.
On July 2, 2016, Joseph was formally arraigned before Justice Peter Kekemeke at the Federal Capital Territory High Court, Apo, Abuja, for allegedly misinforming the former IGP through his petition of July 3, 2014 about the Board resolution used by the suspects in opening the fictitious bank account with Access Bank PLC used in committing the fraud.
The police prosecution counsel, Simon Lough, in a one-count charge No. CR/216/2016 of “false petitioning”.
The trial of the businessman by the police has been ongoing for more than six years until the AGF, after a review of the case, faulted the trial and approved its takeover by the Ministry of Justice, while the police was directed to withdraw its prosecution.
Based on the legal advice by the Minister, representatives of the Director of Public Prosecution (DPP) on November 15, 2021 actually took over prosecution in the case.
Police prosecution lawyer, Simon Lough, an Assistant Commissioner of Police (ACP), ostensibly in compliance with the AGF’s directive, handed over the case file to the DPP, pending final processes to terminate the trial in court.
Surprisingly, while the court was awaiting the final processes to be concluded by the office of the AGF to formally bring to closure the trial of the businessman and commence the prosecution of the suspects, Lough stepped back threatening to continue with the trial.
However, because Lough did not present to the court a letter from the AGF reversing his earlier directive to the DPP to takeover and the police to withdraw its prosecution, the Judge, Justice Kekemeke adjourned sitting till November 3, 2022 to enable him produce the letter.
Charge No. FCT/HC/CR/244/2018
Following a petition by Joseph to Vice President Yemi Osinbajo in 2016 highlighting his frustration in getting the police to prosecute the suspects, EFCC was directed to look into the matter.
Although the EFCC quizzed the suspects and confirmed the complicity of eight suspects in the crime, the anti-graft agency choosed to prosecute only two – Onny Igbokwe and Princess Kama.
Curiously, when the two suspects were arraigned in court by the EFCC, charge No. FCT/HC/CR/244/2018 relied upon to prosecute them were fundamentally different from the facts contained in the petition by Joseph on the fraud.
Joseph’s lawyers described the four-count charge against the suspects as strange, but deliberately contrived by the EFCC to make it easy for the case to be dismissed and the suspects acquitted and set free
While Joseph’s petition said his company’s Board Resolution used by the suspects to commit the alleged fraud was dated December 18, 2012, the EFCC prosecutor, Jude Obozuwa, conducted its trial of the suspects based on a non-existing document dated December 14, 2012.
Joseph had refused to appear in court to testify in the case following the refusal by Obozuwa to correct the discrepancies in the date and amend the factual distortions in the charge against the suspects.
While delivering his judgment on February 24,2021, the then presiding Judge of the FCT High Court, Jabi, Danlami Senchi, capitalised on the discrepancies in the evidence as a result of EFCC non-diligent prosecution of the suspects to dismiss the case and discharge and acquit them.
Flawed premise of defence
However, reacting to the application by suspects counsel, Joseph’s lawyer, Bob James, said on Wednesday that when hearing in the case will commence he intends to prove beyond reasonable doubts that the bases for the request for the charges against the suspects to be dismissed by the court were fundamentally flawed.
Apart from a pending appeal application by Joseph at the Court of Appeal in Abuja against Justice Senchi’s judgment for a blatant miscarriage of justice in charge No. FCT/HC/CR/244/2018, James argued that the case against the two suspects, which the suspects claimed was dismissed, was actually not based on the facts adduced in the petition by his client that the fraud was committed using a document dated December 18,2012.
He said as far as he was concerned, his client was of the view that his case against the suspects based on the criminal use of fictitious Board resolution dated December 18,2012 was still alive and pending against them.
Besides, the lawyer pointed out that the basis for the filing of the 17-count charge by Falana against the suspects was the nolle prosequi entered by the Attorney-General of the Federation, Abubakar Malami, after his directive to the DPP to wade in and takeover the case, while the police hands off the continued prosecution of his client in case No. FCT/HC/CR/216/2016.
He said after the AGF, through letter dated May 10, 2022, issued approval to the request by Falana since November 2018 for a fiat/power to prosecute the suspects, nobody has seen any other letter from him to controvert or reverse his earlier directive to the Director of Public Prosecution to take over the case and the police to withdraw from further prosecuting Joseph.
Case file missing
Meanwhile, investigations by this newspapers revealed that the case file has since been missing after it was filed.
The sudden disappearance of the case file at the central registry of the Federal High Court after it was filed by Falana has remained a puzzle top officials are trying to unravel.
Court officials told our reporter that the sudden disappearance of the file may not have been unconnected by the unusually high interest shown by agents of the suspects who were determined to hoodwink the public into believing there was no case filed against their sponsors.
The officials said all efforts to trace the whereabouts of the file proved abortive since last week. The puzzle, however, remains where the suspects got the case file they used to submit their defence.
No date has been fixed for the commencement of hearing in the case.