BODE GEORGE'S TRIAL, CONVICTION MIRED IN FRESH CONTROVERSY

·          DPP: We didn’t issue prosecution fiat

·     It’s a failed argument, says Keyamo as EFCC keeps mum

A fresh twist has emerged in the trial and conviction of a former Deputy Chairman (South) of the ruling Peoples Democratic Party, Chief Olabode George, who was sentenced to two-and-a-half years imprisonment in 2009 for corrupt practices during his tenure as the chairman of the Nigerian Ports Authority (NPA).

However, documents obtained by THISDAY showed that the Acting Director of Public Prosecution of the Federal Government, Mr. O.T Olatigbe, disowned the trial, because there was no fiat from the Federal Ministry of Justice for the prosecution of George.

When contacted early in the week, Mr. Festus Keyamo, the lawyer who prosecuted the case, described the development as a failed argument because it was thrown out at the Court of Appeal while the prosecution lasted.
Reacting to a memo from the Office of the Attorney General of the Federation, Mr. Mohammed Adoke (SAN), which had requested for the fiat upon which the trial was based, Olatigbe said there was no record of the fiat with the office.

Olatigbe, in the memo dated February 25, 2010, stated: “I contacted the legal adviser of EFCC, Mr. Chile, on the phone and he told me that the Lagos State Attorney General gave the EFCC the fiat to prosecute Chief Bode George at the Lagos State High Court, since the offence was a state offence and that no fiat was issued Mr. Festus Keyamo, and that it was EFCC that engaged him for the matter, based on the fiat issued to EFCC.

“Based on the above premise, it is my humble submission that EFCC failed to secure a fiat (from the Federal Ministry of Justice) for Festus Keyamo to represent a Federal Government agency in court, and that action alone is fatal to the trial of Chief Bode George, for it is only a legal officer in the employment of the Federal Ministry of Justice or under the employment of EFCC that can prosecute any matter for EFCC without a fiat.” 

He also stressed that the Federal Ministry of Justice always deploys competent legal officers to EFCC to prosecute its cases.
The AGF had in a memo dated April 16, 2010, with reference no: HAGF/EFCC/2010/1/47 and addressed to the Chairman of the EFCC, requested to be furnished with “details of any fiat issued to Mr. Festus Keyamo to prosecute the case against George in the High Court of Lagos State and also defend the appeal arising therefrom to this office immediately.”
The request from the office of the AGF was triggered by a letter from Michael Lana, solicitor to George, who claimed to have perused records and could not find a copy of any fiat purportedly issued to Keyamo to prosecute the case or appear in the appeal.

The first letter from Lana to the AGF was dated February 22, 2010, while a reminder was sent on March 10, 2010.
Consequently, the AGF sent a memo to the DPP for verification of the claims. But a reply by the Chief State Counsel, Mary Bamitale Baiyekusi, stated thus: “My inquiries from the DPP registry and colleagues in the department revealed that: (i) the above cases are not on records in the DPP department. (ii) Chief Bode George and others were prosecuted by the Economic and Financial Crimes Commission.

“I am therefore of the opinion that Michael Lana should be advised to liaise with the EFCC for necessary action.”
Justice Olubunmi Oyewole, then of a Lagos State High Court, had in October 2009 sentenced George and five others to jail for splitting and inflating contracts in NPA without the option of a fine.
The accused in the trial, which started on August 15, 2008, included a former Managing Director of the NPA, Aminu Dabo, Captain O. Abidoye, Alhaji Abdullahi Aminu Tafida, Alhaji Zanna Maidaribe and Mr. Sule Aliyu, who was joined as the sixth defendant after the charge was amended.

When contacted, Keyamo described the latest issue as an old development which had been raised at the Court of Appeal and thrown out.
“They raised it at the Court of Appeal and lost. That’s an old story. It’s stale.”
The activist lawyer could not however speak extensively on the issue, as he was boarding a flight for Abuja to appear in the same case – Bode George Vs EFCC & othrs – that came up last Thursday at the Supreme Court.

When contacted, a source close to George confirmed that the issue was raised at the Appeal Court and thrown out, but contended that the beauty of the latest development is that they now have access to the memo, which the Court of Appeal had asked of Keyamo but he was unable to produce, stating that no fiat was indeed issued to him to prosecute or appear in the appeals.

He said, ordinarily, because Keyamo could not produce the fiat on demand, the court should have quashed the case, “but because this was a conspiracy, those on the panel just disregarded that critical aspect and went ahead to convict him because they had a mindset.”

Commenting on the issue during the week, constitutional lawyer, Professor Itse Sagay (SAN), stated that because the NPA is a federal agency and since the offences were federal, it was then the prerogative of the Attorney General of the Federation to issue a fiat for prosecution.
“Clearly, the EFCC has the prosecutorial powers. But the offence was a federal offence committed against the NPA, established by a federal law. Normally, the state does not have a hand in it.

“But what I can’t tell is whether or not the EFCC has the powers to transfer prosecution to Lagos State. That I am not too certain about.”
Also, a former president of the Nigerian Bar Association (NBA), Mr. Olisa Agbakoba (SAN), said though the fiat is an instrument issued for the prosecution of a case, while recrimination over fiat issuance poses a challenge, the EFCC, he said, has the power to prosecute and might as well secure a fiat anywhere, depending on the offence committed and the correspondent charges.
“What is the offence being committed? A federal civil servant can commit a state offence and be tried in the state. But the bottom line is: what is the offence?” he asked.

Agbakoba, who was cautious in giving an opinion because he could not recall the substance of the case, contended that most criminal cases are state offences because they are generic, adding that federal criminal offences are very few and usually limited to treason.
Besides, he noted that depending on the offence involved, state and federal attorneys-general also concede fiat to each other over offences for which they have jurisdiction. “So, if George was charged with a state offence, the Lagos State Attorney-General will issue a fiat to try him.”

Another legal expert who pleaded anonymity told THISDAY that the issue now should be whether the EFCC gave the instruction for prosecution or not, adding that the administration of criminal justice law is clear as far as the issue of prosecution is concerned.

“If it is correct that the prosecution went ahead without a letter of instruction from the EFCC, then, an issue of a breach of rights is present. But I doubt that in spite of the limitations of our justice system that such injustice would be permitted,” he said.
However, when contacted, EFCC spokesperson, Mr. Wilson Uwujaren, said he could not confirm any of the correspondence because he had not assumed duty when the exchanges took place, but he promised to look into the matter later.

Also, there was no indication, through either a memo or any other means to establish the commission’s response to the AGF’s letter, asking for a copy of the fiat upon which George was tried.  

Source: Thisday