A Federal High Court in Abuja on Wednesday rejected the no-case submission brought before it by the suspended Director-General of the National Broadcasting Commission (NBC), Ishaq Kawu Modibbo, and two others over an alleged N2.5 billion fraud charge filed against them by the Independent Corrupt Practices and Other Related Offences Commission (ICPC).
Kawu, Pinnacle Communications Limited, its Chairman, Lucky Omoluwa, and the firm’s Chief Operating Officer, Dipo Onifade were alleged, in the charge, to have misappropriated the N2.5 billion in the course of disbursing the seed grant for the Federal Government’s Digital Switch-Over (DSO) project.
In a ruling on the no-case submission by the defendants, the trial judge, Justice Folashade Giwa-Ogunbanjo ordered them to enter their defence in the case.
The Judge rejected the defendants’ argument that the prosecution was unable to establish a prima facie case against them and slated July 1, 2020, for the defendants to open their defence in the matter.
Upon an application by the prosecution, the judge deleted the name of Omoluwa, who died some months ago, from the charge.
The ICPC, in a 12-count charge, accused Kawu and his co-defendants of abuse of office, money laundering and misleading a public officer with the intent to defraud the federal government, in contravention of Section 26 (1) (c) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 19 of the same law.
Kawu’s counsel, Abdulhakeem Mustapha, (SAN), had argued in the application that, the failure of the prosecution to link his client with any of the ingredients of the alleged offences necessitated the application.
He explained that the onus was on the prosecution team to establish a clear linkage of the defendant applicant with the alleged infraction that brought about the criminal charges.
According to him, Kawu as the chief executive of the NBC mandated to handle the country’s digital switch-over, had not committed any offence for recommending payment of the N2.5 billion seed grant to Pinnacle Communications.
The counsel also averred that Lai Mohammed, the Minister of Information and Culture, who approved the payment had not issued any query against the transaction.
He said it was unusual and unforgivable for the prosecution to avoid bringing the Minister of Information and Culture to testify in a transaction that was approved by him.
The counsel for the first defendant applicant further said the testimonies of the nine prosecution witnesses were contradictory and could not be used as vital evidence by the court.
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Mustapha said the proceeding is a violation of sections 302 and 303 of the Administration of Criminal Justice Act (ACDJA) as the prosecution failed to prove beyond reasonable doubt that the fraud and conspiracy occurred adding that, both digital switchover white paper and minutes of meeting leading to the approval and disbursement of the fund exonerate Kawu from any wrongdoing.
“My Lord, we, therefore, urge the court to discharge and acquit Kawu from further trial. We pray the court to uphold our no-case-submission,’’ Mustapha said.
Dr. Alex Izinyon, (SAN) Counsel for both Messrs Omoluwa and Onifade averred that the prosecution had failed to meet the minimum standard in criminal prosecution, adding that no criminal actions had been linked with his clients.
“Sections 302 and 303 of the ACJA have made it easier for the court to consider the merits of this case. The burden of proof lies with the prosecution and not the defendants as they have done in this regard. The prosecution has in this instance asked us to prove out guilt.
“From the surface meaning of the charge, the prosecution fails to establish the nucleus of the offence, but went ahead to rob my clients with offence of conspiracy.
“How could the prosecution claim that the applicants conspired when the root of the main offence is yet to be ascertained. The question to be asked is what the offence of my clients is really?’’.
“My Lord, my clients operate one of the prestigious indigenous digital switch over firm. It is also true that the firm won the bid to handle the country’s digital switch over contract.
“The digital switch over white paper spells out the modalities of the contract which includes payment of seed grant to companies engaged to handle the process.
“It was on the strength of this that NBC and Minister of Information gave approval for the payment of N2.5 billion to Pinnacle. The firm had delivered two of the projects and still working on others’’, Izinyon said and urged the court to uphold the no-case-submission in the interest of justice and fair play..
Counsel for the fourth defendant applicant (Pinnacle Communications V. Atuwewu (SAN) adopted the submissions made by the two defendants’ counsel, adding, however, that the charge was “a lie unto itself’’.
The counsel said it was clear that nobody had made any complaint on the transaction to ICPC and urged the court to uphold the motion on no-case-submission.
Henry Emore, the Prosecution counsel, however, urged that court to discountenance the prayers for the upholding of the motion, adding that the prosecution had established a prima facie against all the defendant applicants.
“At this stage My Lord, the minimal standard is the ability to establish a prima facie against the defendants. We are not obliged to prove the case beyond reasonable doubt at this stage of the trial.
“They have dwelled so much on the absence of the minister of information and culture to testify in this matter. We felt the nine witnesses we brought had done justice to the case.
“In any case, My Lord had urged them to invite the minister if they so wish and if that would help their defence. All we are holding onto is that the minister was misled to approve the seed grant of N2.5 billion to Pinnacle,’’ Emore said.
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