Vanguard (Lagos)

3 February 2013

Nigeria: Subsidy Scam - the Futile Bid to Save Farouk and Emenalo From Detention

The accused persons are hereby remanded in prison custody," Justice Mudashiru Oniyangi's voice re-echoed in their brains like some discordant tunes from a horror movie. It was like a jolt from the blues! They couldn't believe it.

Suddenly, the haughty smirk that was hitherto on the face of the erstwhile Chairman and Secretary of the House of Representatives Ad-hoc Committee on fuel subsidy probe, Farouk Lawan and Boniface Emenalo vanished.

Clad in a well starched white flowing Agbada and matching cap, both Farouk and his co-accused person, had exuded so much confidence while in the dock. Never did they envisage themselves spending a whooping one week at Kuje Prison.

Specifically, the duo will remain in Prison till February 8 when their bail application will be determined by the trial court. It was indeed a smooth transition from 'parliamentary chambers' to 'prison chambers' for Farouk.

Their trial which came after so many months of suspense, commenced at exactly 9:15 am on Friday morning with the court room witnessing a massive turn-out of spectators who came to observe the much anticipated trial.

Both men sauntered into the court room some 20 minutes earlier after they managed to escape the probing lenses of numerous photojournalists. Immediately the court clerk called up the case, Justice Oniyangi not only ordered them to mount the dock, but personally read the 7-count criminal charge to them.

The Independent Corrupt Practices and other Related Offences Commission, ICPC, had in the charge, alleged that the embattled men demanded and collected bribe from the Chairman of Zenon Petroleum and Gas Ltd, Femi Otedola, as an inducement to remove the name of his company from the report of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime.

They were said to have collected an aggregate sum of $3million, with a view to ensure that Zenon Petroleum and Gas Ltd escaped prosecution even though the Committee had ab-initio found it culpable in fuel subsidy fraud.

The anti-graft agency maintained that the offence they committed was contrary to section 17 (1) (a), section 8(1) (a) (b) (ii), and section 23 (i) of the Corrupt Practices and other Related Offences Act, 2000 and punishable under section 8 (1) 17 (1) and 23(3) of the same Act.

Besides, the prosecuting commission alleged that Emenalo, while being a public officer, an Assistant Director and Clerk of the Committee on Education of the House of Reps, sometime in April 2012, while acting as the Secretary of the Ad-Hoc Committee, was offered gratification by Otedola but failed to report the offer to any officer of the ICPC or any police officer. Whereas both accused persons were charged together in the first count of the charge, however, count 2, 3 and 4 were specifically preferred against Farouk while count 5, 6 and 7 were entered against Emenalo.

Meanwhile, shortly after they took turns and pleaded innocence to the crime, counsel to the ICPC, Chief Adegboyega Awomolo, SAN, implored the court to remand them in prison custody pending their trial.

He told the court that the accused persons had only served him with their consolidated bail application yesterday morning, saying he had anticipated such move and prepared legal authorities he said would guide the court into deciding that it was in the interest of justice to allow the duo to be remanded in prison.

Relying on section 8, 10, 17 and 23 of the ICPC Act 2000 and the decided case-law in Asari Dokubo Vs FRN, 2007, 12 NWLR, Awomolo, SAN, said: "We are opposing the application for bail and urge your lordship to refuse it. The accused persons are charged with an offence punishable by 2 to 7 years imprisonment and therefore not ordinarily bailable.

"An application for bail is an application in equity which requires my Lord to exercise your discretion judicially and judiciously. The principles that guide the court in granting bail have been well enunciated in the case of Bamaiyi Vs State, 2001, the nature and gravity of the offence and the likelihood of the accused committing another offence while on bail.

"The offence by which the accused persons are standing trial is the case of corruption by a public officer at the highest level, particularly in the legislative arm. The accused person, in the affidavit did not give an undertaking that if they go back to the National Assembly, they will not be members of another committee and that they will not demand or obtain bribe in the discharge of their official duty.

"Your Lordship needs to be assured that what prompted them to demand $3million will also prompt them to demand $10million.The accused persons were part of the making of the ICPC Act, they knew the intention of the lawmakers and deliberately violated the law, on that ground alone, I urge my lord to deny them bail," Awomolo added.

Earlier, the accused persons had through a team of two Senior Advocates that represented them in court yesterday, Chief Ricky Tarfa and Chief Mike Ozokhome, begged the court to either grant them bail on self recognition on most liberal terms.

Moving their bail application dated February 1 and filed pursuant to section 35, 36 (5) of the 1999 constitution as amended, and section 340 and 341(2) of the Criminal Procedure Code, Tarfa, SAN, urged the court to take cognizance of the fact that the 1st accused, Farouk, had in the course of investigation into the matter, reported to the Police on 37 different occasions, noting that the duo never violated the administrative bail that was given to them by the Police.

"The 1st accused have had cause to travel out more than four times since the commencement of the investigation, the 2nd accused have had cause to travel to the USA more than two times since then. My Lord, the 1st accused has been a full time member of the Reps since 1999; he is also a member of the ECOWAS parliament and has been a member for the last twelve years.

He is one of the founding members of the said ECOWAS parliament and he is presently chairing the committee on Administration of Finance."

Consequently, Tarfa, relied on decided case-law in Owudalu Vs State, 2008, AFWLR, and Ebute & Ors Vs State, 1994, 8-NWLR, and argued that not only did the accused persons failed to abscond when they had the opportunities, he said they had voluntarily submitted themselves to the Police for investigation.

"The accused persons are willing and ready to face their trial. My Lord should also take cognizance of their status and position in the society and grant them bail in self recognition. The constitution says they should be considered innocent until proven guilty," he insisted.

In his short ruling, trial Justice Oniyangi, said he would need time to consider the application, saying the accused persons should be remanded in Prison till February 8 when the case was subsequently adjourned to.

Basically, two of the charges against them read: "That you Hon. Farouk Lawan (M) while being a member of the House of Representatives and chairman of Ad-hoc committee on Monitoring of fuel subsidy regime sometimes in April 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this honourable court did while acting in the course of your official duty corruptly obtained the sum of $500,000 (five hundred thousand dollars) for yourself from Mr. Femi Otedola Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon petroleum gas ltd from the report of the House of Representatives Ad-hoc committee on Monitoring of fuel subsidy regime and you thereby committed an offence contrary to section 17 (1) of the Corrupt practices and other Related Offences Act, 2000 and punishable under section 17 (1) of the same Act."

"That you Mr. Emenalo Boniface (M) while being a public officer, an Assistant Director and Secretary of the House of Representatives Ad-hoc committee on Monitoring of Fuel Subsidy Regime sometimes in April 2012 or thereabout at Abuja within the. Federal capital territory under the jurisdiction of this honourable court did while acting in the course of your official duty as Secretary, corruptly asked for the sum of $3,000,000 (three million US dollars) for yourself from Mr. Femi Otedola, and you thereby committed an offence contrary to section 8 (1) (b) (ii) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under section 23 (3) of the same Act."

Shortly after the Farouk Lawal led panel released its fact-finding report that exposed astronomical fraud perpetuated by various companies under the subsidy regime, Otedola, in a retaliatory move, released an audio tape with a view to proving that the probe panel demanded cash-for-clearance.

Otedola specifically accused Lawan of demanding for $3million to exonerate his company, emphasizing that the lawmaker even went to the extent of stuffing monies in his cap on one of the occasions he came to receive bribe on behalf of the panel.

However, Lawan,through his lawyer,Chief Mike Ozokhome, SAN, refuted the allegation that he stuffed money in his cap, stressing that contrary to insinuation that he traveled to Lagos to collect bribe as alleged, he only received money from Otedola on two separate occasions at his room at Protea Hotel at Apo Abuja and at Otedola's house at Aso Drive Asokoro also in Abuja.

Describing the audio tape which was released to media houses as "a devilish caricature", Lawan had urged Nigerians to give him the benefit of doubts, insisting that he would not rest until he proved that the primary intention why he collected the money was to uncover the level of corruption within the oil sector of the Nigerian economy.

More so, in a bid to further puncture the probe report, Otedola alongside his company, Zenon Oil and Gas, filed a suit before the High Court, where he is seeking the sum of N250billion against Farouk and the Speaker of the House of Representatives, Aminu Tambuwal, as exemplary damages for alleged oppressive and arbitrary actions he said was meted against him.

Meanwhile, Sunday Vanguard investigation has revealed that the ICPC may produce Otedola in court to testify against the two lawmakers who are currently having a feel of what may befall them should the court find them guilty on the 76-count charge.

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