By Gowon Emakpe:

A Federal High Court sitting in Abuja yesterday ordered the Economic and Financial Crimes Commission (EFCC) to provide proof that the chairman of the House committee on power, Ndudi Elumelu, and eight others who are standing trial over allegations regarding a N5.2 billion Rural Electrification Agency contract, actually stole the said money.

In his ruling on a motion on notice, the trial judge, Adamu Bello, ordered the EFCC to provide proof of evidence in all the 135 count charges proffered against the accused persons and adjourned the matter to March 17, 2010 for hearing.

Mr. Elumelu and others, in their motion, asked the court to compel the graft agency to bring its proof of evidence before the court to enable them prepare adequately for their defence. The application, which came via Motion on Notice, was brought in pursuant to section 36(5) (c) and (d) of the constitution of the Federal Republic of Nigeria 1999, asking for an order compelling the prosecution in the case to make available to the accused/applicant the proof of evidence to be used or relied upon by the prosecution.

Specifically, in the application, they asked the court to take notice that the proof of evidence in the case was not attached to the charge sheet and that fair hearing entails fair trial as enshrined under the provision of section 36(c)and (d) of the constitution of the Federal Republic of Nigeria 1999.

Need for evidence

In an eight-paragraph affidavit, the eight accused person, Ndudi Elumelu, stated that he needs the facts against him to enable him prepare adequately for his defence and that unless the proof of evidence is made available to him, he will not be able to prepare adequately. He noted that the court has the powers to compel the EFCC to do so.

Counsel to Elumelu, Olushola Dare, brought the application, and the counsel to the other eight accused persons simply adopted his arguments and also urged the court to grant the application.

But the EFCC counsel, Godwin Obla, told the court that section 33 of the Federal High Court, Act Cap F12 laws of the Federation of Nigeria 2004 provides for the procedures guiding criminal trials in the Federal High Court and it states that all criminal cases or matters before the court shall be tried summarily.

He also stated that this position is confirmed by the Court of Appeal in the case of Chief Diepreye Solomom Alamieyeseigha vs The Federal Republic of Nigeria & 7 others {2006] 16 NWLR [Pt1004] 1 @ 96.

In his counter affidavit in opposition to the eight accused person’s motion on notice, deposed to by one John Okopi Alu, a legal practitioner, the prosecution counsel stated among other things that the court has properly read and explained the charges to the accused persons in the language they understand, and that as at the time the charges were read, none of them objected to the clarity or comprehension of the charges. The prosecution counsel then urged the court to dismiss the application for lack of merit.

A plea for bail

The court had previously granted bail to the chairman of the Senate committee on power and his counterpart in the House of Representatives, Nicholas Ugbane. They are standing trial over an alleged N5.2 billion Rural Electrification Agency (REA) contract scam.

Also released on bail were the Permanent Secretary in the Ministry of Power, Abdulahi Aliyu, and the Managing Director of the Rural Electrification Agency, Samuel Ibi Gekpe, Simon Nanle, Lawrence Orekoya, Abdulsamad Jahun, Kayode Oyedeji, Jibo Mohammed, who are equally facing prosecution by the EFCC over the same issue.

The accused persons were remanded in EFCC custody last month, when the graft agency amended its count charges to 135 of meddling with procurement procedures in the award of N5.2 billion contract in the REA of which they pleaded not guilty, and were granted bail after a formal bail application before the court.

The other defence lawyers, who argued in like manner, prayed the court to grant their clients bail, having not defaulted since June 23 when the matter was mentioned and would continue to stand their trial as responsible citizens.

In addition, they told the court to release the accused persons on bail since the prosecution counsel, Godwin Obla, did not oppose the bail and did not file a counter affidavit to challenge the bail application. Some of the 135-count charges read, “While being public servants/officers and in such capacity involved in the processing of public procurement on the rural electrification Agency (REA) agreed among yourselves to do unlawful acts, not conducting procurement, fraud by means of fraudulent and corrupt acts, unlawful influence and undue interest in the awards of grid extension and solar electrification projects unlawfully awarded from the 2008 amended budget of rural electrification agency and, thereby, committed an offense contrary to section 58 (4) (b) and punishable under section 58 (i) and (5) (a) and (b) of the public procurement Act 2007.

“While being public servants and in such capacity involved in the process, public procurement in the REA failed to advertise the intention to bid for 1 (N0) solar electrification project awarded to Aviva Global Concept for the sum of N32, 814, 631. 28, unlawfully drawn from the 2008 amended budget of the REA and, thereby, committed an offense contrary to section 25 (2) (i) and punishable under section 58 (1) (5) (a) and (b) of the public procurement Act 2007.

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