On March 28, Justice Abubakar Kutigi of the FCT High Court made far-reaching pronouncements in his ruling on the charges filed by the Economic and Financial Crimes Commission (EFCC) against Mohammed Bello Adoke, former Attorney-General of the Federation (AGF) and Minister of Justice, and six other defendants in the long-running OPL 245 saga. The judge accepted the no-case submissions made by Adoke and the other defendants because, in his words, the EFCC did not establish a prima facie case for a full trial. He lambasted the EFCC for filing frivolous charges and wasting the court’s time for four years.
This is not the more familiar issue of lack of diligent prosecution. This time, it is an abject lack of evidence to substantiate the 40-count charge. In-house, EFCC lawyers reportedly admitted long ago that the case was so bad and was going nowhere, although Offem Uket, the commission’s lead prosecutor, could not have conceded this in court. Of course, with many people not paying attention to the details of the case, the spin doctors went to town saying the trial was bungled, while insinuating, without evidence, that the prosecutors might have collected bribes from the defendants.
Remember, this was a case filed in 2020 by Bala Sanga, who abandoned it in 2022 after seeing that it was weak with Uket later brought in ostensibly to salvage the situation.
I have taken the time to read the full text of the judgment and I would advise EFCC’s lawyers to stop wasting the time of our courts. The truth of the matter is that the OPL 245 case was bad.
Little wonder Justice Kutigi declared that the charges were poorly drafted. And this is not about the regular grammatical errors but poor articulation of arguments. More specifically, the judge would also note that the EFCC failed to lead evidence linking Adoke and his co-defendants to the alleged crimes. For instance, the EFCC had accused Adoke of “knowingly disobeying the direction of law with intent to cause injury to the public” but did not provide the facts. “During the trial, none of the witnesses for the prosecution gave evidence or alluded to the nature of the direction of law that was disobeyed,” the judge stated in his ruling.
The EFCC had also accused Adoke of granting tax waivers to Shell and Eni. Even here, it is an open secret that tax waivers are granted by the Federal Inland Revenue Service (FIRS) subject to presidential approval and not the AGF. Justice Kutigi noted that the EFCC did not produce any evidence to back its claim against Adoke, not even a testimony by an FIRS official.
“Absolutely no evidence whatsoever was led as to the tax [Shell and Agip] were due to pay under the OPL 245 agreement or indeed any other tax and also how they instigated 1st Defendant (Adoke) in a manner geared towards committing the alleged offence,” the judge said. Simply put: The EFCC did not produce even the minimum evidence required to prove its case.
The EFCC also accused Adoke of collecting a bribe of N300 million from Aliyu Abubakar, a property magnate who was also arraigned, and this was supposed to be the smoking gun. The EFCC did not even attempt to prove this charge. Of this the judge said: “I have carefully gone through the evidence led by the prosecution witnesses and nobody alluded to any offer or gratification of N300 million by 2nd defendant (Abubakar) to 1st defendant (Adoke) and/or that they were privy to 1st defendant accepting any form of gratification from 2nd Defendant as a motive for showing favour in the exercise of his official functions. In addition to the failure to establish if a gratification was offered and accepted, no purpose for which the alleged gratification was given was defined or slated.”
Justice Kutigi pointed out a very amazing fact: “None of the prosecution witnesses even spoke to this count at all and this is fatal. There is really nothing on which the court can even rely on to proceed to determine whether a prima facie case was raised ab initio.”
How can you charge a defendant to court for allegedly receiving a bribe and not even one of your witnesses said anything about it? What is the court supposed to do? Should it help you create evidence and witnesses?
You would be forgiven for thinking the entire OPL 245 case was about Adoke. Of the 40 counts, only four mentioned his name, but he was made the poster boy. Indeed, 29 of the 40 counts were against Rasky Gbinigie, the company secretary of Malabu Oil and Gas Ltd, who was accused of removing Mohammed Abacha’s name as a director of the company and thus denied him the benefits that accrued from the sale of OPL 245 by Malabu to Shell and Eni/Agip in 2011. Instructively, Abacha was EFCC’s No 1 prosecution witness.
Adoke had always maintained that he did no wrong, and that the administration of former president, Muhammadu Buhari merely sought to help the Abacha family get a share from the proceeds of OPL 245. Adoke said there was a plot to criminalise him so that Nigeria could use that as evidence to win its OPL 245 cases in Europe.
He has been vilified for nine years and till date, has not been found guilty of any wrongdoing. Nigeria lost all OPL 245-related cases everywhere. All the courts said there was no evidence of corruption. The lesson here is the huge difference between a court trial and media trial. For while the EFCC may have done excellently well in media trials, now it has to sharpen its skills when it comes to the court of law, where hearsays and speculations are no substitutes for evidence.
- Ahmed, public affairs commentator, can be reach via dalhatu1985@gmail.com.
