The nominal complainant in the alleged N170.3 million contract fraud involving some senior officials of Zinox Group has filed an appeal at the Court of Appeal, Abuja against the ruling of a Federal High Court, Abuja acquitting and discharging them of the crime.
The complainant, Benjamin Joseph, who is also the managing director of an Ibadan-based computer retail firm, Citadel Oracle Concepts Limited, also requested the Appeal Court to nullify the N20million compensation award against him as well as a stay of execution of the judgment.
The High Court of the Federal Capital Territory, Jabi, Abuja, presided by Justice Danlami Senchi on Wednesday discharged and acquitted two defendants, Princess Kama, and Onny Igbokwe arraigned by the Economic and Financial Crimes Commission (EFCC) on a four-count charge bordering on alleged forgery, document falsification and contract fraud.
Messrs. Kama and Igbokwe were arraigned on June 21, 2018 on a four-count charge of agreeing between themselves to commit an illegal act of forgery contrary to Section 96 of the Penal Code CAP 532 LFN Abuja (1990) and punishable under Section 97 of the same Act; conspiracy to make a false Board Resolution of Citadel Oracle Concept Limited dated December 14, 2012 while opening an Account No. 0059202675 at Access Bank with the intent to commit fraud and thereby committing an offence contrary to Section 363 of the Penal Code CAP 532 LFN Abuja (1990) and punishable under Section 364 of the same Act.
They were also charged by the EFCC with agreeing between themselves to use as genuine a forged document and thereby committing an offence contrary to Section 96 of the Penal Code CAP 532 LFN Abuja (1990) and punishable under Section 97 of the same Act, and fraudulently or dishonestly using as genuine a forged Board Resolution of Citadel Oracle Concept Limited dated December 14, 2012 which they knew or had reason to believe to be forged and thereby committing an offence contrary to Section 366 of the Penal Code CAP 532 LFN Abuja (1990) and punishable under Section 364 of the same Act;
The charge followed a petition to the police in October 2013 by Mr Joseph accusing the duo of criminal conspiracy with some top officials of Zinox Group to hijack and execute a N170.3 million contract awarded to his company by the Federal Inland Revenue Service (FIRS) in 2012.
In the petition, Mr Joseph said apart from the contract, the suspects also opened a fake account at the Awolowo Road, Lagos branch of Access Bank using forged documents of his company with the bank, including a fake Board resolution.
The resolution dated December 18, 2012, appointed Chris Ozims and Folashade Oyebode as directors of the company and sole signatories to the fake account without his knowledge.
Kama was engaged by Citadel Oracle Concept Limited to facilitate the submission of the bid documents at the FIRS.
Igbokwe is the chief executive of two Port Harcourt-based IT companies, Ad’mas Digital Technologies Limited and Pirovics Engineering Services Limited, accused of conniving with Kama to hijack the contract.
Ozims is the Company Secretary/Legal Adviser, Zinox Group and Technology Distributions Limited, TD, while Ms Oyebode is a director of TD, a subsidiary of Zinox Group.
Another director of TD, Folashade Oyebode, and two staff members of Access Bank Plc, Obilo Onuoha and Deborah Ijeabu, were also accused of aiding the alleged crime.
The complainant alleged that the trio facilitated the release to Messrs, Kama and Igbokwe, suspected to be members of a fraud syndicate, confidential bank documents belonging to his company, which they allegedly used in opening a bank account at Access Bank for the transfer of the proceeds of the crime.
The names of the accountant at TD then, Chares Adigwe, who was said to have filled in the account opening forms at Access Bank, and the Managing Director of Zinox Group, who is also Leo Stand Ekeh’s wife, Chioma, featured in Mr Joseph’s petition as playing roles in the alleged scheme.
Curiously, it was only Kama and Igbokwe who were arraigned by the anti-graft agency despite protests by counsel to the complainant.
In his judgment on Wednesday, Justice Senchi ruled that after more than three years of trial in Suit No. CR/244/18 between Federal Republic of Nigeria versus Princess Kama and Chief Onny Igbokwe, the prosecution led by Jude Obozuwa, an operative of the EFCC, failed to prove its case beyond reasonable doubt against the two suspects.
Consequently, the judge dismissed the case, discharged and acquitted the suspects. In handing down the judgment, Justice Senchi noted that despite the several petitions written by the complainant to various authorities in the country, including Vice President, Yemi Osinbajo, he “blatantly refused to honour invitation by the prosecutor to come to court and present his evidence.”
Describing the complainant’s case against the suspects as “false allegations”, Justice Senchi said by refusing to come to court to give his evidence, it means his petitions were only meant to punish the defendants.
Citing Section 323 of the Administration of Criminal Justice Act (ACJA), 2015, the judge ordered Mr Joseph to pay N20million compensation to the defendants for the accusation without justification, to serve as a deterrent to others who may wish to behave the same way in future.
Based on the complainant’s refusal to testify, the judge also discountenanced his statement to the EFCC which was admitted during the trial as Exhibit 2.
He also disregarded allegations about using false documents to open a fake account at Access Bank in the name of Citadel Oracle Concept Limited as that was not one of the demands before it for trial.
Although the complainant was neither listed by the EFCC as a party in the case, nor was he called to testify throughout the trial period, he said he was filing for leave to appeal against the ruling as an interested party pursuant to Section 243(1) of the 1999 Constitution.
In the appeal application filed on Thursday, counsels to Mr Joseph, including Femi Falana, a senior advocate of Nigeria (SAN); Akin Onigbinde (SAN); Onuemachi Bob James, Esq.; Abubakar Marshall, Esq. and Jude Mouka, Esq., said their client is appeal as an interested party against the part of the judgment awarding damages of N20million against him.
In the application, apart from asking for the order of the Appeal Court against Kama and Igbokwe acquittal of Ms the complainant’s lawyers are also asking for the entire judgement in charge No CR/244/18 of February 24 2021 to be set aside.
They are also asking for an order for a stay of execution of the N20million compensation for damages awarded against their clients as well as any other order or orders the court may deemed fit to make in the circumstance.
Grounds of Appeal
The lawyers’ grounds of appeal attached with the application was that contrary to the claim by Justice Senchi in his judgment that their client blatantly refused to appear in court to give evidence or testify, he was “never at any time invited by the prosecution counsel in the case to address the court in the course of hearing on the issue of damages.”
The lawyers cited Section 3681) of the 1999 Constitution, which says a person is entitled to be heard before an order that will adversely affect him can be made, noting that the learned trial judge erred in law and acted without jurisdiction when he awarded N20 million against their client without hearing from him.
Besides, the lawyers faulted Justice Senchi’s award of N20million against their client, describing the quantum of damages as “unprecedented and excessive”, capable of “totally cripple the business and family of the applicant.”
They said by Section 323(3) of the Administration of Criminal Justice Act, a person against whom an order for compensation is made pursuant to Section 323 (1) can appeal against such order, considering that their client was not party to the proceedings in the Lower Court.
Again, in view of the fact that an order or judgment against a person behind him is considered a nullity in law, the lawyers said the learned trial judge erred in law and on the facts of the case when he held that their client blatantly refused to come to court to give evidence in spite of being told to do so by the prosecutor when indeed there was no evidence of refusal on record.
Further particulars of appeal also included that no one gave evidence in the court that their client refused to attend the court to give evidence; that the prosecutor’s claim that their client refused to come forward to testify is not sufficient proof of such refusal; that the learned trial judge erred in law when he awarded such excessive damages of N20million against their client.
In fact, the lawyers said there was no basis for such an award, as it was not a judicious exercise of judicial discretion, as the amount was not only excessive, but meant to inflict punishment on their client for perceived misconduct without hearing from him.
Consequently, the reliefs they sought from the Court of Appeal was for an order quashing the N20million award against their client as well as setting aside the ruling acquitting and discharging the suspects as the case was deliberately framed and predetermined by the EFCC to fail.
Complainant weeps in court
On January 30, 2020, the court was holding its final sitting before the prosecutor, Jude Obozuwa, would conclude his cross-examination of Ms Kama’s testimony and close his case.
The nominal complainant was in court, having arrived Abuja for the case three days earlier from Ibadan where he resides, as he has always done since 2017 when the case began.
Justice Senchi was making his closing remarks. Then he stopped abruptly to inquire the nominal complainant was in court.
Mr Joseph raised his hands from where he sat at the back to confirm his presence. The Judge beckoned on him to walk up to the foreground of the court room.
He said during Kama’s testimony, he heard her talk about the suggestion by Afe Babalola during a reconciliation meeting in his chambers ln Ekiti for him (Joseph) to take her out for lunch as a sign of their long friendship. The Judge said he called him (Joseph) out to know if he was ready take Kama out for lunch.
In his response, Mr Joseph cried out in court: “My Lord, all what Kama has said are lies. I was not even in the country when the so-called meeting with Afe Babalola was held.
“My Lord, I will love this honourable court to give me an opportunity to say my side and defend myself in this case.
“My Lord, I am being shut out of this case by the prosecutor. I have not been given the chance to say anything to defend myself of all the allegations against me. The prosecutor even slapped me in his office when I went to see him. He said I wrote a petition against his poor handling of this case.
“My Lord, he has been very mean and very wicked to me. I don’t think I will have justice in this case with this man (pointing at Jude Obozuwa, the EFCC lawyer) as my prosecutor.
“My Lord, he slapped me in front of (CTV) camera in his office. I am the victim in this case.
“My Lord, money was paid (by FIRS) into the (fake) account they opened using a fake Board resolution of my company. They cleared the account. They shared the money among themselves.
“The people who opened the account in my company’s name, who are the ones that operated the fake account in the name of Citadel Oracle, the prosecutor has brought them here as his witnesses against me.
“They are the ones who should stand where I am, my Lord. I am the victim. I have said nothing, in this case, my Lord.”
Despite attempts by Justice Senchi to calm him down, Mr Joseph refused to be restrained.
“My Lord, I have written all these experiences to the EFCC. My Lord, there was absolutely nothing like that (claim by one of the suspects that he participated in a meeting with Afe Babalola where a good faith offer of N10 million was extended to him as settlement).
“My Lord, I never attended any meeting with Afe Babalola. All are cooked up lies. My Lord, I gave my prosecutor my international passport that showed I was in the U.S. when the so-called meeting with Afe Babalola was held.
“The prosecutor has refused to present the passport and other documents about the crime in court. Everything they are saying are lies, my Lord. Chief Afe Babalola is still alive My Lord,” he continued to shout.
Mr Joseph accused the EFCC prosecutor, Jude Obozuwa of attempting to close prosecution in the case without him giving his evidence. He said Mr Obozuwa refused to present to the court vital documents he submitted to the EFCC, but has gone ahead to close the case with the aim of shutting him out from testifying to defend himself.
He passionately appealed to Justice Senchi for an opportunity for the court to hear his side of the case.
Mr Joseph was restrained only after Justice Senchi assured him that he would ensure all parties are given equal opportunity to state their cases.
As the judge said that, Mr Joseph prostrated full length and rolled on the floor in the fore-court to express his appreciation to him.
Curiously, in delivering his judgment on Wednesday Justice Senchi appeared to have forgotten to capture even a word about this particular incident on that day.
He equally appeared not to have even remembered his promise to the complainant that he would give all parties equal opportunities for the court to hear their side of the case.
The only thing that seems to have occupied his mind was that the complainant blatantly refused to honour the prosecutor’s invitation to compel him to come and testify in court.
In delivering his judgment, the Judge even apologized to the prosecutor for all the frustration he suffered through the misconduct of the complainant.
Serial protests against prosecutor’s lack of diligent prosecution
On November 5, 2019, counsel to the complainant, Bob James wrote a protest letter to the Head, Procurement Fraud Unit of the EFCC accusing Mr Obozuwa of withholding ‘very vital facts and documents” submitted to him and refusing to diligently investigate the case.
On February 25, 2020, another member of the complainant’s legal team, Akin Onigninde, SAN wrote to the Chairman of EFCC to complain about the misconduct and assault of Jude Obozuwa in the EFCC headquarters.
He said on January 17, 2020, his client had gone to the EFCC to hold a pre-trial meeting with the Head of the agency’s Legal department and Mr Obozuwa at the instance of Femi Falana. The meeting was also to resolve the observed gaps in the handling of the case.
Mr Onigbinde said his client had complained vehemently that Mr Obozuwa was dealing with the suspects in a manner deliberately calculated to make the charge to fail and to make an easy escape for them from any liability from any criminal offence.
He said it was during the visit that Mr Obozuwa slapped Mr Joseph and threatened to deal with for daring to write a petition against his poor conduct in the prosecution of the case.
Mr Onigbinde had earlier petitioned the Chairman over what he called the “unjust, perverse prosecutorial tactics of Jude Obozuwa” the prosecutor in the case.
Femi Falana also highlighted some of the flaws and inadequacies in the investigations and prosecution in his letter of July 25, 2019.
Mr Joseph said Mr Obozuwa had assured him on more than one occasion that he would never get justice for daring to petition the IGP Solomon Arase.
On November 5, 2019, Bob James petitioned the Director pf Operations of EFCC to complain against Mr Obozuwa’s conduct and his handling of the case.
In his letter, Mr James accused Mr Obozuwa of glossing over or totally ignoring very vital facts and documents that pointed conclusively to the involvements of the suspects.
Mr James cited at least eleven of those documents vital to the case that was not investigated by either Mr Obozuwa or the forensic department of the EFCC.
On August 17, 2020, Mr Joseph petitioned the Chairman, Presidential Panel on EFCC about the conspiracies by EFCC officials to frustrate the diligent prosecution of the case.
He mentioned how the Head of the Legal Department, Chile Okoroma, and Jude Obozuwa conspired with others to frustrate the case.
Although investigations were concluded in the case since December 2017 with implicating evidence against seven suspects, Mr Okoroma directed Mr Obozuwa to file charges against only two of them suspects.
In his petition to the EFCC Chairman dated December 20, 2017, Mr Joseph’s counsel, Bob James, contested the decision to arraign only two suspects out of seven.
Mr James accused Mr Okoroma of using his office to shield his kinsman and his staff who opened the operated forged account at Access Bank
Again, Mr Joseph said Mr Obozuwa deliberately did not want him to present his documents in court as a principal witness in a case he was the nominal complainant, apparently so as not to counter.
Yet, he used some of the suspects – Eze Ozims, Obilo Onuaha, and Chioma Ekeh indicted in the investigations as his witnesses till he closed his case on November 12, 2019.
The charges were deliberately framed so loosely with a pre-determined outcome to fail and offer the suspects an easy escape route.
For instance, Mr Joseph’s lawyers said Mr Obozuwa filed a fraudulent charge against the two suspects.
The forged Board Resolution the suspects used to open the fictitious account at Access Bank was dated December 18, 2012. That is the document investigated by the Forensic Unit of the EFCC.
But in filing the charge, Mr Obozuwa deliberately altered the date on the Board Resolution document he filed to December 14, 2012.
On November 11, 2019, Mr Joseph said he called Mr Obozuwa to intimate him verbally about the discrepancy, but to his surprise, the prosecutor flayed up and blamed him for pointing it out to him.
Mr Joseph said Mr Obozuwa’s reaction compelled him to petition the Acting Director, Legal Unit of the anti-graft agency the following day to put on record that his attention was drawn to the discrepancy.
He reminded him of his letter of October 11, 2019 in which he said he notified the Commission of the refusal of Mr Obozuwa to list for tender the appropriate documents required for the successful prosecution of the case.
In November 2019, an EFCC forensic analyst, Debi Gideon, told the court that the disputed signature of Benjamin Joseph on the board resolution document used to commit the fraud was ‘forensically not genuine’, because they were mechanically imported into the disputed document via the process of scanning/cut and paste method.”
Not satisfied, Mr Obozuwa in 2020 procured another expert who gave a contradictory opinion that the handwriting and disputed signature were similar, showing they originated from the same source.
The creation of artificial conflict with the existence of two contradictory expert opinion is what gave the Judge the ground to conclude there was a doubt that must be resolved in favour of the accused, thus creating an escape route that nullifies the charge of forgery and falsification against the suspects,
Besides, he said his counsel, Bob James in November 1, 2019 also wrote to express serious reservations about Mr Obozuwa not filing those vital documented evidence.
To show his frustration, Mr Joseph wrote: “In view of the foregoing and the concerns raised in these correspondences, I express my sincere reservation about the modus and the end objective of the criminal trial above referenced.
“Regrettably, I do not feel in this circumstance that it would be safe for me to testify in this case with Mr Jude Obozuwa as the prosecutor, believing that he would lead me in destroying myself in the circumstance.
“It is my fervent expectation that you will utilize the above information by doing the needful in the instant case in the overall interest of justice.”
Perhaps, Mr Josephs’ expectation was that the EFCC would appreciate his fears and change Mr Obozuwa as the prosecutor in the case. But they never did.
Although Mr Joseph said the attention of Mr Okoroma and Mr Obozuwa were drawn by his lawyers to the discrepancy and its likely negative impact to the overall outcome of the case, they swore not to correct it.
Yet, it was the same discrepancy the trial Judge latched on to give a life line to the suspects and a death knell to the case against them.
Said Mr Joseph in his petition of August 17, 2020: “The implication of Mr Obozuwa’s action is that it is only the voice of the defence that has been heard by the court as he used persons indicted to have defrauded my company as the prosecution witness to give credence to their defendant colleaquess on the other side.”
For Bob James, counsel to the complainant, the review of the prosecution of this case should be a big test for the newly appointed Chairman of EFCC to begin to convince Nigerians that his promise last week to reinvent the anti-graft agency was not business as usual.
By Bassey Udo The adoption of the standard private finance template in the execution of po…