There were indications Thursday that the Economic and Financial Crimes Commission, EFCC, might withdraw the pension theft case files from the trial judge, Abubakar Talba, for alleged breach of understanding.
Vanguard learnt from authoritative sources that the commission felt uncomfortable with the light sentence given to one of the pension thieves, John Yakubu Yusufu, who pleaded guilty to the 20-count charge of criminal conversion of N32.5 billion belonging to the Police Pension Fund.
It was gathered that EFCC was set to report the judge to the Chief Judge of the Federal High Court, Justice Ibrahim Auta, and request that the case file be withdrawn from Justice Talba since the commission had lost confidence in him.
It was learnt that under the term of understanding, Talba was to give Yusufu a light sentence without an option of fine, since he had admitted committing the crime and pleaded for mercy.
But in a dramatic twist, Talba turned round and ordered the suspect to pay a paltry N250,000 for each of the three counts as an option of fine thereby making a mess of the judgment.
One source said that a decision had been reached by the commission and its lawyers to bring an application before Justice Talba to disqualify himself from trying other persons who, with Yusufu, allegedly embezzled more than N32 billion police pension funds.
Talba is yet to hear the cases of Abubakar Kigo, former permanent secretary, Ministry of Niger Delta Affairs, and four others, Sani Habila Zira, Esai Dangabar, former director in the police pension office, Ahmed Inuwa Wada and Veronica Uloma Onyegbula, who are implicated in the police pension theft.
Apart from Yusufu, all the others pleaded not guilty to a 20-count charge of criminal conversion of the Police Pension fund.
The commission's legal team, it was learnt, was likely to argue that the fears raised by the media and the public on the ruling in the Yusufu case had tainted public perception about the judge's possible fairness.
The prosecution team will also argue that in the court of public opinion, Talba has already been judged and that, for the sake of his integrity, it would be unfair for him to continue to sit on the case.
The source explained the fears of the EFCC and its lawyers which, he says "are well founded and well grounded".
He said, the prosecution can no longer trust Justice Talba because he went outside the agreement reached by the two parties in the Yusufu case to give him an option of fine.
"That is why we need a totally disinterested and unbiased judge in this case," the source said.
Clarke faults EFCC
Meanwhile, Lagos-based legal practitioner, Chief Robert Clarke, SAN, has faulted the Economic and Financial Crimes Commission, EFCC, for charging the convicted John Yusuf under section 390 of the Penal code instead of the draconian EFCC Act just as he noted that the trial judge, Abubakar Talba, could have exercised his discretionary powers in favour of the millions of Nigerians and pensioners whose right to their entitlements were denied.
Clarke said: "The prosecutors should not have brought that charge under the Section 390 of the penal code. By bringing it under that penal code, they should have known that there is a restriction under that code against them that it is a two-year term maximum sentence or an alternative in fine."
He added that "the commission could have charged the accused for stealing which attracts a five-year imprisonment under the same law with no option of fine, but it decided to charge him under Section 390 knowing fully well that it permits only a two- year jail term with an alternative to fine".
He argued that the judge could have exercised his discretionary powers in favour of million of Nigerians and pensioners whose right to their entitlements were denied and also could have elaborated on the judgment.
"Unfortunately, the judge did not elaborate on this when pronouncing the judgment. He should have at least elaborated that 'the law allows me to sentence the accused to two year imprisonment; the law also allows me to give him an option of fine; therefore, in exercising my discretionary powers, I intend to use the option because of A,B,C..." If he had explained this to the whole world, Nigerians would not have castigated him the way the scenario is now.
The judge could also still have refused the option of fine even the counsel to the accused had drawn his attention to it because of the gravity of the offence", he said
He stated that the anti graft agency could appeal against the judgment if it not satisfied with it. "I think what they have now done is to fall on the EFCC Act which is a very draconian act which many of us should not allow to continue in Nigeria. Under that draconian section, the EFCC act states that if you fail to declare your assets properly and you make false declaration of those assets, you are liable to go prison for five years. Now he is being charged with false declaration because most of the properties they got in his name, he did not declare it and that is a strict liability offence," he stated.
On the penal system, he stated that there is nothing wrong with the Penal system and I know the National Assembly cannot change it. "they cannot touch it because it is a state law. The penal system is a state law which are the criminal code in the south and the penal code in the north; and they are within the powers of the states houses of Assembly. Criminal jurisprudence and criminal prosecution are all governed by the state law. That is why the Attorney General cannot prosecute any body under a state law. The point I am making is that if it is a state law, the National Assembly has no matter in it."
He added that in the case of John Yusuf on the Police Pension Fund, the accused was charged under the penal code which is a state law as against the EFCC act.