JUSTICE ADEMOLA’S DISCHARGE & ACQUITTAL SIMPLIFIED (PART 1)

This article is an explication of the ruling that acquitted Justice Adeniyi Ademola, his wife, Olabowale Ademola and a senior legal practitioner, Joe Agi SAN. The ruling upon which this article is based was read by the author on https://www.lawyard.ng/rulingwhy-justice-ademola-was-discharged-of-corruption/; https://www.lawyard.ng/ruling-2-why-justice-adeniyi-ademola-was-discharged-off-corruption/ and https://www.lawyard.ng/ruling-3-why-justice-adeniyi-ademola-was-discharged/.

 

The aim is to inform and educate both lawyers and non-lawyers interested in the details of the outcome of the trial. It is not a critique of the ruling but simply breaks down the charges against the defendants and the evidence given upon which the court relied in reaching its conclusion with fewer legalese. Hopefully, it will spark a more intelligent and informed discussion and constructive debate on the various issues we need to deal with in tackling the menace of corruption and prosecution of offenders.

 

In line with this objective, the legal principles governing the determination of an application for ‘No Case to Answer Submission’ and the conditions to be fulfilled for a court to uphold same as provided for in the Administration of Criminal Justice Act (ACJA) 2015 and case law would be skipped. Other legal issues regarding the validity of some of the counts would also be skipped.

 

The 18-count charge which was amended at least twice in the course of the trial related to six incidents:

  • The payment of a total sum of N30 million into the account of Mrs. Ademola between the 11th and 26th of March 2015 by Joe Agi SAN;
  • The purchase of a BMW Salon 320i car valued at about N5 million for the son of Justice Ademola, Ademide Ademola by Joe Agi SAN in February 2015;
  • The sums of N54 million, $121,279, 1,010 Rupees and 4,400 Euros recovered from Justice Ademola’s house during the raid of the 9th of October 2016;
  • The transfer of the sum of N85 Million and N90 Million by Justice Ademola from his account to a property company in February 2014;
  • Attempt to obtain gratification in the sum of N25 Million from a Sanni Shaibu Teidi;
  • Possession of firearms without a valid license.

 

Regarding the first two incidents, the prosecution’s case was that Mr. Agi SAN paid and Justice Ademola received bribes (N30 Million and the BMW car) to influence and be influenced in the performance of his duties as a Judge. They presented evidence from several witnesses in respect of this. The evidence presented can be easily summarized.

 

The transaction involving the car happened first – on the 5th of January 2015 and only one witness was called in respect of that transaction – a sales consultant with Coscharis Motors Ltd, where the car was purchased. She testified that she had begun having talks with Ademide Ademola, Justice Ademola’s son over the purchase of a ‘regular’ car for himself in December 2014. By January 2015, he had selected a BMW Salon 320i car and requested that she issue a proforma invoice for the car and attention it to Mr. Agi SAN. The car cost N8 Million with VAT in the sum of N400,000.00. Payment was made for the car by a transfer from the account of Joe Agi & Associates after which the car was delivered to and received by Ademide.

 

In March 2015, there were three transfers of the sum of N10 Million each totaling N30 Million from the Zenith Bank account of Joe Agi & Associates into Olabowale Ademola’s account with Guaranty Trust Bank. Officers from the different banks testified to the transactions and tendered the relevant bank statements. It is pertinent to note two points: Firstly, the Statement of account tendered for Olabowale Ademola had neither an account name nor account number on it. The officer from the bank through whom the statement of account was tendered however identified it as the statement of account for Olabowale Ademola. The second point to note is that the statement of account for Justice Ademola was also tendered in evidence.

 

The key witness for the prosecution in respect of these incidents and indeed for the entire trial was an investigating officer, Mr. Babatunde Adepoju (PW 16). He investigated Justice Ademola on allegations of misuse of judicial powers, corrupt practices, bribe taking and so on. He was the witness that attempted to tie all the monies and gifts to cases pending before the Judge. He testified that when during his investigations, he noticed the payments of a total sum of N30 million into Olabowale Ademola’s account by Joe Agi in March 2015, he was naturally suspicious and therefore dug deeper to find out if there were any cases that tied the Judge and the senior legal practitioner together during that time frame. He found two cases – ALGON V FEDERAL GOVERNMENT OF NIGERIA (mostly referred to as LINAS INT. LTD V. FEDERAL GOVERNMENT OF NIGERIA in the ruling) and FRIDAY UKPONG V CHIEF OF NAVAL STAFF. Two facts about these two cases aroused his suspicions. First, Justice Ademola had granted garnishee orders nisi in favour of Joe Agi’s clients for huge sums of money in both cases. The ALGON case had three such orders. The first garnishee order in the sum of N637 million was granted in February 2015, just a few days after the car was collected by Ademide while the second garnishee order was made on the 27th of March 2015, a day after the last tranche of N10 million was paid into Olabowale Ademola’s account. The second suspicious fact was that the court processes were filed in Calabar, the judicial division where Justice Ademola sat before being transferred to Abuja but the two cases still followed him to Abuja. The court processes and garnishee orders made were of course tendered.

 

This solid case however begins to unravel when PW 16 is cross-examined by the different lawyers for the defendants. Apparently, Mr. Agi SAN in his statement to the DSS admitted making the payments to Mrs. Ademola’s accounts but stated that he made them on behalf of two of his clients – Mr. Ken Hubert and Mr. Bassey Bassey who had directed that he pays the sum of $150,000 to Justice Ademola’s family to support them on the occasion of their daughter’s wedding that took place in April 2015. When he converted the money at the time, it came to about N37 Million and he had further stated that he met these two clients who operated maritime companies both within and outside Nigeria through Justice Ademola who is a close friend of his. He maintained that he has known Justice Ademola for about 17 years, was a family friend to the Ademolas and their lawyer. Did the investigator contact Mr. Hubert and Mr. Bassey? Yes, he did and stated that because they were outside the country (the USA and the UK), he sent questionnaires which they replied by answers sworn on oath before a commissioner for oaths and admitted instructing Mr. Agi SAN to pay the money to support Justice Ademola and his family on the occasion of their daughter’s wedding.

 

He then investigated further as to whether either Mr. Hubert and Mr. Bassey or their companies had or was interested in any case presided over by Justice Ademola. He found none. Did he confirm if Justice Ademola’s daughter indeed got married during that period? Yes, he did and discovered that his daughter had gotten married in April 2015 at Oriental Hotels in Victoria Island, Lagos.

 

He was then confronted with another cash gift Justice Ademola also received during that period and supposedly for the same reason from another senior legal practitioner, Mr. Kola Awodein SAN who was representing President Buhari in a case relating to his certificate pending before Justice Ademola. He had also given the Judge half a million Naira for his family on the occasion of his daughter’s wedding. PW 16 maintained that President Buhari could not have been bribing the judge as saying that would amount to mere speculation. He was also then confronted with court processes and applications dealing with the transfer of the cases he had tied the bribe or gratification to and he confirmed that the Federal Government of Nigeria and the Attorney General of the Federation who were the Defendants did not oppose the application to transfer the case to the Abuja Division. The order to transfer the case was made by Justice E. A. Obile. It was therefore not Justice Ademola’s decision. He admitted that he was just getting to know how the case got transferred from Calabar Division to Abuja Division. The last and perhaps most devastating confrontation to the prosecution’s case was when he was confronted with the records of proceedings in the LINAS INT. LTD V. FEDERAL GOVERNMENT OF NIGERIA case where he had previously testified that Justice Ademola granted orders in favour of Joe Agi’s client. He had testified that Justice Ademola made the last garnishee order nisi in favour of Joe Agi’s client a day after the last tranche of N10 Million was paid into the account of Mrs. Ademola. When he was asked to read the record of proceedings, he admitted that the order made that day was against Joe Agi’s client and went further to admit that it is not reasonable for Mr. Agi to be paying for an order made against him. He finally admitted that his initial view on the matter was based on incomplete knowledge.

 

The court took note of all the contradictions as follows:

In coming to the above view, the Court particularly reckons with the evidence of the Pw16 who testified he investigated this case. It is instructive that after his initial testimony under evidence in chief with respect to payments of N10, 000, 000.00 in three tranches into the 2nd Defendants Account by the 3rd Defendant at different times the latter had Garnishee proceedings before the 1st Defendant, under cross examination he admitted unambiguously that he does not know of any case in relation to which lodgements were made from the 3rd Defendants Account to influence the 1st Defendant (see page 173 paragraph 3 of Records of Proceedings). After contending under Evidence in Chief that the 1st Defendant made Garnishee Orders in favour of the 3rd Defendants client Linas International Ltd in Suit No: FHC/ABJ/CA/130/13 after the last tranch of N10, 000, 000.00 was paid into him, he did a summersault under cross examination and said the 1st Defendants order was against the interest of the 3rd Defendant. That the 3rd Defendant could not have been paying the 1st Defendant to made Orders against him (see page 182 paragraph 1 of Records). Significantly too, the witness testified that the 3rd Defendant told him and his investigations also revealed that the duo of Mr. Hubert and Mr. Bassey Bassey passed through him to the 2nd Defendant a gift of N30, 000, 000.00 during her daughter’s wedding. He admitted under cross examination that neither of these persons could in his investigations be linked with the case of Friday Ukpong V Chief of Naval Staff which the 1st Defendant heard. He admitted that while the Ukpong was in 2014, the gift from the duo as in 2015. He also admitted there was no link between the gentlemen was and the case of LINAS INT. LTD & 234 V FEDERAL GOVERNMENT OF NIGERIA & 2 ORS which the 1st Defendant heard.

Again, after the initial insinuation that the 1st Defendant caused suit no: FHC/CA/CA/32/2012 (Exhibit WW to WW2) formerly pending before him while sitting in Calabar to be transferred to his Court in Abuja upon his transfer to Abuja, he did when confronted with Exhibits III (ie Order of Transfer made by Hon. Justice Obile) and Exhibit JJJ (copy of letter of transfer of the case file) admit under cross examination (at page 179 last paragraph) that it is only today he got to know how the case was transferred from Calabar to Abuja.

Very significantly, the witness after his attention was drawn to certified true copy of proceedings in suit No: FHC/ABJ/CA/01/15: MR. CHUKWUWEIKE OKAFOR V GENERAL MOHAMMADU BUHARI ie Exhibit FFF and he contended that the Presidents Counsel in the said case by making a wedding gift to the 1st Defendant was not bribing him admitted that it would be speculative to say that gifts from common friends passed on to the 1st Defendant by the 3rd Defendant was gratification (see paragraphs 1 and 2 of page 176 of Records).

To cap his litany of evidence against the interest of the Prosecution and in support of the Defendants case, the witness after having been confronted with documentary evidence (ie Exhibit MMM, LLL, KKK and SSS) showing no N30, 000, 000.00 or tranch of N10, 000, 000.00 was paid into the 1st Defendants account to influence him in the course of his official functions particularly in relation to cases before him admitted the fact of his earlier testimonies being based on speculation. He said:-

With all I have now seen, my initial view on the matter was based on incomplete knowledge (see paragraph 2 of page 182 of Records).”

 

The Court took particular note of the fact that there was no evidence that the money was transferred to Justice Ademola directly and stated: “It needs be pointed out that any money paid into the Bank Account of the 2nd Defendant cannot without evidence clearly showing it was paid to her on behalf of or for the benefit of the 1st Defendant, be treated as money paid to the 1st Defendant to influence him in his official function.

Even if any such evidence exists (though records show none) unless and until it is shown the purpose of the payment was to influence him in the performance of a particular official function or functions, that count of the charge cannot be said to have been proved by prima facie evidence.”

 

 

Surely, the transactions and its timing are very suspicious. On that, the court had this to say:

 

“Temptation is very strong for the Court to draw the inference that given the circumstances in which the N30, 000, 000.00 were paid in three tranches at different times the 3rd Defendant had matters before the 1st Defendant hence the lodgements were made with an intention to influence him in his official functions. This temptation however disappears in the light of the PPw16s evidence that he could not link the givers of the gifts with any case before the 1st Defendant. Even the 3rd Defendant who had some, had orders made against him. This is further reinforced by the Pw16s testimony under cross examination that in the circumstances in which the money was given (ie as wedding gift) it will be speculative to view it as gratification aimed at influencing him. This piece of being one by a Prosecution witness against the interest of the Prosecution, our legal system being adversarial, the issue of the 3rd Defendant having given the said N30, 000, 000.00 with the intention of influencing the 1st Defendant in his official functions must be resolved against the Prosecution in favour of the Defendants. The Pw16 having said it would be speculative to treat the gift as gratification in the circumstance, the Court agrees with the witness. As the Court cannot act or convict based on speculation or suspicion no matter how strong, the Court holds the evidence of the Prosecution does not disclose a prima facie case in proof of Count II of the Information for which the Defendants should be called upon to put up their defence.”

 

Who has the duty here? Should a public officer be made to defend gifts given to him or is it the prosecution that must prove that such gifts were given as gratification? The court had this to say:

 

“Before I drop my pen on this issue, I must point out that a critical reading of Sections 53 and 60 of the Act shows that it is not the intention of the legislature that mere giving of gift as provided in Section 17(1) of the Act, without proof that the gift is or is intended to be a gratification will give rise to the presumption in Sections 53 and 60 that the gift was corruptly given or accepted as an inducement or reward for something done or left undone. It cannot be the intention of the law maker that the mere giving of a gift without proof that it is or is intended to be an inducement or reward for something done or to be done, automatically qualifies the gift as a gratification for which the receiver is required in the last limb of Section 53 to prove the contrary. As aforesaid, the recipient of the gift will be required to prove the contrary only after it has first been proved that the gift was a gratification. To contend otherwise, as the prosecution has urged the Court in this case will amount to the Defendant being required to prove his innocence. This certainly will do violence to the provision of Section 36(5) of the 1999 Constitution of Nigeria which mandatorily provides that Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.

 

On the car given to Ademide, the court stated:

“The sole witness on this issue having not identified either Ademide Ademola or the 3rd Defendant as an agent of the 1st Defendant or stated the 3rd Defendant gave the vehicle to Ademide Ademola on behalf of the 1st Defendant as his agent, there is no need to proceed further as the cardinal ingredient of the Section 17(b) of the Act has not been supported by any iota of evidence. In the circumstances, it serves no useful purposes considering whether or not the vehicle was corruptly given by the 3rd Defendant to any agent of the 1st Defendant ie Ademide Ademola or that he acted as the 1st Defendant agent. Establishment of the agency relationship with respect to the transaction between Ademide Ademola or even the 3rd Defendant and the 1st Defendant is a sine qua non which if not satisfied the charge predicated on Section 17(b) of the Act would collapse. There is no such evidence before the Court.”

 

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