15th February, 2012
The trial of former Governor of Ogun state, Otunba Gbenga Daniel on a 43-count charge of stealing, fraudulent conversion by trustee, failure to declare assets as well as corruptly obtaining property during his eight-year rule as governor of the state, continued Wednesday with the Economic and Financial Crimes Commission, EFCC, clearing the air on the alleged misrepresentation of the proceedings of January 20 in a weekly television programme.
Counsel to the anti- graft agency, Rotimi Jacobs who acknowledged the error, told the court that it was an innocent mistake caused by technology and that it was not intended to manipulate the court process.
He added that neither the prosecution team nor the leadership of the Commission had any hand in the said publication.
“We didn’t have any hand in that publication, neither is the top echelon of the Commission aware of the publication. The people concerned had no foreknowledge whatsoever of any ruling that your lordship might give in this case,” he said.
Jacobs apologised to Justice Olanrewaju Mabekoje for any embarrassment that the said publication had caused him and promised that the report would be retracted in the next episode of the programme.
While noting the plea of the prosecution counsel, Tayo Oyetibo, SAN, counsel to the defendant, however insisted that the court must view the offensive broadcast.
Justice Mabekoje then ordered the tape to be played. Thereafter he stood down proceedings for about an hour to write his ruling. When proceedings resumed, the trial judge noted that though the report was capable of scandalizing the court, he had taken into cognisance the plea of the prosecution and consequently discharged the officers.
He, however, requested that the said report be retracted in the next edition of the programme and urged the officers to ensure accurate reporting of all court proceedings in the future.
Lead counsel to the accused person, Taiwo Osipitan, SAN, thereafter continued his argument in response to the prosecution’s opposition to his motion challenging the competence of the anti-graft agency to prefer criminal charges against him for an offence allegedly committed in Ogun state as well the jurisdiction of the court to entertain the charge.
He faulted the prosecution’s alleged failure to seek the consent of the court before instituting the charges against the accused.
According to him, if information is filed without consent, that information is liable to be quashed.
Daniel was first arraigned on 12 October 2011 on a 16-count charge of stealing, fraudulent conversion and failure to declare assets.
He pleaded not guilty to the charges and was admitted to bail on 14 October 2011 in the sum of N500 million and two sureties in like sum.
The judge also fixed 28 November 2011 for the commencement of the trial.
At the resumption of hearing on 28 November EFCC’s counsel, Rotimi Jacobs informed the court that the commission has filed amended information which contained fresh 27 charges against Daniel, bringing the total count charge against the former governor to 43.
Jacobs had sought the permission of the court to read the new charges to the accused person so that he can take his plea but Justice Mabekoje declined, adding that if such is allowed, it will amount to the commencement of trial.
Jacobs said he was ready to continue with the trial but the lead counsel to the accused, Osipitan pleaded for time to study the amended charge and prepare for the trial.
Justice Mabekoje, therefore, adjourned proceedings till January 19 and 20, 2012.
However on 19 January 2012 when the accused person was supposed to take a fresh plea to the amended information, he brought an application through his counsel, challenging the information and the jurisdiction of the court to entertain the information.
In a motion supported by a 37 paragraph affidavit, Osipitan, SAN, challenged the locus standi of both the Commission and the Attorney General of the Federation to prosecute the former governor and asked the court to quash the charges against him.
He also argued that the court lacked jurisdiction to try him.
Osipitan argued that the offences for which Daniel is being prosecuted were committed in Ogun State and as such, the EFCC lacked the power to institute any action against the former governor.
Daniel’s affidavit stated in part that the plaintiff lacked the locus standi to prosecute state offences and to initiate criminal proceedings in respect of state offences and or properties belonging to Ogun state government and Ogun state Local Government Councils whether in their names or in the name of the Federal Republic of Nigeria.
In his reply to the application, prosecuting counsel, Rotimi Jacobs, while citing Sections 6 and 7 of the EFCC Act and Sections 211 and 174 of the 1999 Constitution, told the court that the accused person has a case to answer, adding that the commission has power to prosecute the former governor.
According to him, the Commission can accept and institute criminal charges against any agency whether State or Federal or any individual, organization or entity and that the Constitution empowers and stipulates that the Attorney General can take over any case on behalf of the Federal government.
“My learned friend has also said in the 37 paragraph affidavits that it is only Ogun state and Ogun State Local government that can complain or write petition alleging that a crime has been committed against it. My Lord this is a misconception of Law.
“It is also a misconception to say that the EFCC lacks the powers to prosecute this case. Anybody can be prosecuted by the EFCC, anybody can raise an allegation before anybody and the EFCC based on powers conferred on it by the Act establishing it has the powers to cause an investigation to be conducted,” Jacobs said.
He also produced a fiat, which empowers the Commission to prosecute the accused person on behalf of the Attorney General.
Justice Mabekoje adjourned proceedings till 2 March for ruling.