4th July, 2012
A Nigerian high court in the capital of Abuja has dismissed an application by former Chairman, House of Representatives Committee on Capital Markets and Institutions, Herman Hembe, asking the court to quash the criminal charge against him.
The presiding judge, Justice Abubakar Umar, in his ruling on Wednesday also turned down the application by the former deputy chairman of the comittee, Chris Azubuogu, challenging his arraignment.
They are facing a two-count charge of misappropriation and conversion of public funds following an allegation by the former Director-General of the Securities and Exchange Commission (SEC), Ms Arunma Oteh.
The allegation led to their suspension from the House.
The EFCC filed a criminal charge against the two over allegation that they converted to personal use, the 4,095 dollars (about N600,000) given to them by the SEC as travelling allowance for a conference in the Dominican Republic in October 2011.
The anti-graft agency says the offence is contrary to Section 308 of the Penal Code Act, Laws of the Federation of Nigeria, 2004 and if found guilty, they can serve a jail term of not less than seven years.
In his ruling, Justice Umar said that the preliminary objections filed by Hembe and Azubuogu challenging the jurisdiction of the court to entertain the charge, had failed.
The judge, who maintained that the prosecution had established a prima facie case against them, ordered that the two accused persons face trial to defend the charges against them.
Umar also held that from the proof of evidence before the court as filed by the EFCC, the two accused persons have explanations to make in the course of trial.
He also said that the EFCC Act 2004 was elastic enough to hold the accused persons liable to face trial.
On the argument by the defence counsel, Mr Jibrin Okutepa, that the charges were an abuse of court process, the judge held that the EFCC had sought leave of court to file criminal charges against Hembe and Azubuogu.
“I dismiss the prayers sought in the preliminary objections filed by the accused persons.
“All the court needs to consider at the moment is that from the proof of evidence, was money collected but not used for the purpose it was meant for?
“My answer is yes the accused persons collected the said amount. In fact, they did not deny collecting it.
“At the first look of the statement of the witnesses the EFCC intended to bring to court, there is evidence that if uncontested can establish a fact that the accused persons did not deny collecting the sum of 4,095 dollars.
“I, therefore, order the EFCC to unfailingly arraign the two accused persons,” he said.
He adjourned the case to July 18 for arraignment of the suspects and ordered an accelerated trial to commence on Thursday, July 19.
He also ordered the EFCC to ensure that the four witnesses it intends to call are produced in court on that day.
Justice Umar expressed disgust at the EFCC for asking for an adjournment because it was not ready to proceed with the case.
“It is always the case with the EFCC. You are not ready to proceed?
“You will be the same one that will rush to court with cases and then come back to say you are not ready,” he said.
The EFCC Counsel, Umma Mu’azu, who was holding brief for Mr Ojeffu Ibe, had told the court that she was sent to get an adjournment after the ruling.
But counsel to Hembe, Okutepa objected to the application for adjournment.
It will be recalled that Hembe’s counsel, Okutepa had in a preliminary objection challenging his arraignment, argued that the court lacked jurisdiction to hear the suit.
He said that because the allegation was still being investigated by the House of Representatives Committee on Ethics and Privileges.
Besides, he said that the counter-affidavit, which contained “extraneous facts and purports to make the EFCC a respondent in the suit is contrary to the Evidence Act.’’
He said that “there is contrivance and falsification of information’’, describing the entire charge as an avenue to waste public funds.
In her arguments, Azubuogu’s counsel, Linda Ikpeazu, also argued that since the report of the House Committee investigating the allegation had not been released, it will not serve the cause of justice to try his client.
She also said, “there is a case of inadequacy of documents and so, there is no case for my client to answer to, especially as he sought to return the money through the Clerk of the House.
“It was the Director-General of SEC who asked him to keep the money. Since there will be another conference.
“The absence of the Director-General of SEC in this case exposes the complicity in it, ” she said.