First Guarantee v. Nze Chidi Duru:  One Week, One Trouble?

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In a space of a few  weeks, the former Vice Chairman of First Guarantee Pension  Limited, Hon  Nze Chidi Duru, has been arraigned twice in two different courts at two different locations, on criminal charges allegedly committed in the pension industry.  Olaoluwakitan Babatunde who has been following developments around the Pension Fund Administrator (PFA) concludes that it is becoming a matter of one week, one trouble for the ex-Rep  member.

In a space of just three weeks, the Federal Government has demonstrated its determination to defend the integrity of the nation’s pension industry and protect its assets, which is worth nearly N7 trillion at the moment.

 Incidentally, the recent events revolve around one person, being the erstwhile Vice-Chairman of the First Guarantee Pension Limited, FGPL, Nze Chidi Duru, who was arraigned before His Worship, A. Akinfulire of the Lagos State Magistrate Court, Tinubu, Lagos.

 The Police in Lagos on 16 January 2017 docked Hon. Duru along with a legal practitioner, Mr. Smart Iheazor, on four-count charge of theft, conspiracy, impersonation, and the breach of peace. This followed what police described as unlawful invasion of the premises of the FGPL at No. 65 Kudirat Abiola Way, Oregun, Ikeja, in the Lagos Magistrate District.

 In the case titled Commissioner of Police vs. Nze Chidi Duru, Smart Iheazor, No. 12/02/2017, the police accused the two men, and others said to be at large, of conspiracy to “commit felony to wit stealing”; theft of “(3) three office files, (1) one HP Laptop valued at the sum of 250,000 (Two Hundred and Fifty Thousand Naira) property of First Guarantee Pension Limited (FGPL)”; “wilfully and unlawfully invading First Guarantee Pension Limited (FGPL) offices with an intent to forcefully takeover the management and assets of the company and thereby committed an offence punishable under Section 111(d) of the Criminal Laws of Lagos State, 2011”; and introducing themselves “as Vice Chairman/Secretary, respectively, of First Guarantee pension Limited (FGPL) and acted same in an attempt to takeover the management and assets of the company”.  

 They, however, pleaded not guilty of the accusations and were subsequently granted bail in the sum of N500,000 each with one surety each in the same sum.

 But the arraignment was full of drama as Duru, who came to court in his pyjamas, speaking through his lawyer, Mr. Emeka Etiaba, SAN, said he took ill in Police custody and could not stand trial. However, the prosecution informed the court that doctors had certified him fit to stand trial. The magistrate thereupon ruled that he should stand trial.

 

More Trouble for Chidi Duru

 While the dust was yet to settle, Nze Duru was arraigned again on 7 February 2017, before Justice Peter Affen, Court 24, of the Federal Capital Territory High Court, Maitama, Abuja. 

He was arrested on Saturday February 4 by operatives of the Economic and Financial Crimes Commission, EFCC, over alleged criminal breach of trust, forgery, and diversion of funds worth N16.1 million. He allegedly took ill again in EFCC custody.

 

Arraignment and Charges:

 Duru’s counsel, Mr. Abdul Mohammed, opposed his arraignment, arguing that his client was not supposed to be charged in the first place, citing provisions of the Administration of Criminal Justice Act (ACJA) as well as the absence of the defendant’s lead counsel, Mr. Emeka Etiaba, SAN.

 But Hon. Justice Affen said he could not assume jurisdiction to entertain his preliminary objection unless Duru was first arraigned and that as a SAN, Mr. Etiaba was aware that court resumes at 9.00am.

 The Court Registrar read the charges entitled “Federal Government of Nigeria Vs. Nze Chidi Duru” marked FCT/HC/CR/75C/2017.

 Excerpts of the four-count charge are: “That you Nze Chidi Duru while being the Vice Chairman of First Guarantee Pension Ltd sometime in July 2010 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory, being entrusted with dominion over certain properties to wit:  N15,000,000.00 (Fifteen Million Naira) being part payment of 30% equity shares of First Guarantee Pension Ltd sold to Novare Holdings Proprietary Ltd committed criminal breach of trust in respect of the said fund by diverting same to pay for land allocations from Lagos State Government in favour of Grand Towers Plc, and MVJJDA Africa Ltd, companies of which you have interest; (and) N1, 123, 646.68 (One Million, One Hundred and Twenty-Three Thousand, Six Hundred and Forty-Six Naira, Fifty-Eight Kobo), being part payment of 30% Equity Shares of First Guarantee Pension Ltd sold to Novare Holdings Proprietary Ltd committed criminal breach of trust in respect of the said sum by authorizing same to be paid into the First Bank PLC account of B.P. Outsourcing Ltd, a company of which you have interest and you thereby committed an offence punishable under Section 315 of the Penal Code Act, CAP 532 Laws of the Federation of Nigeria, 1990.

 “Did knowingly and fraudulently make a false document to wit: an ordinary resolution of First Guarantee Pension Ltd dated 2nd June 2008 purporting same to have been signed by all the subscribers/shareholders of the said First Guarantee Pension Ltd….

 “Did knowingly and fraudulently use as genuine a forged document, to wit: an ordinary resolution of First Guarantee Pension Ltd dated 2nd June 2008 purporting same to have been signed by all the subscribers/shareholders of the said First Guarantee Pension Ltd and forwarded same to Folasade Ogundare and Hon. Tsegba Terngu with the intention of causing it to be believed that the said document was genuine, which you knew to be false and thereby committed an offence contrary to Section 366 of the Penal Code, cap 532 Laws of the Federation of Nigeria (Abuja) 1990 and punishable under Section 364 of the same Act”.

 Nze Duru, however, pleaded “not guilty’” to all the charges. He was subsequently granted bail on the grounds that he deposited his travel documents, which bars him from leaving the country.  

 Defence counsel told the court that they had Preliminary Objection to the charges, following which the matter was adjourned to 27 February 9, 2017.

 There was however a suppressed drama as the ex-Rep who was supported to court due to alleged illness could walk out of the court premises unsupported.

 

Matters Arising:

 Sources familiar with the case claim that the Preliminary Objection might not be unconnected with the statement issued by Duru’s family following his arrest by the EFCC.

 A statement by his media aide, Osita Ogbuagu, expressed the family’s displeasure with the arrest as the offences for which he was arrested had been allegedly been withdrawn by the EFCC in Lagos.

 “This case was however withdrawn from a Lagos Court and now they intend to arraign him in an Abuja Court, this is a clear case of double jeopardy”, the family said.

 However, some senior lawyers opine that withdrawal of charges are not the same as acquittal and discharge. They said there are many grounds upon which a case could be withdrawn and filed again, as double jeopardy only arises when a person is being tried for exactly the same offence on which the court had delivered judgement. To them, the family should rather save their energy for the court where the accused would have his day to prove his innocence beyond reasonable doubt.

 Also, on his arraignment before Lagos Magistrate Court, Nze Duru insists he acted upon court orders and a letter by the Office of the Attorney General of the Federation (AGF) mandating him to takeover the FGPL.  In an interview in major national dailies, he claimed to have received from his lawyers, “a copy of a letter that had been written by the AGF and Honourable Minister of Justice, to the Director-General (DG), PENCOM, reprimanding PENCOM for consistently disobeying the orders of court, while requesting the DG to immediately comply with the relevant judgments of the court (supposedly) recognising him as the vice Chairman of FGPL)”.

 However, not a line in the said letter authored by the Director of Public Prosecution of the Federation (DPPF) and dated 4 January 2017 supports his claim.

 The letter, Reference No. DPPA/PET/111/16, only “refers” PENCOM to “petition…wherein the petitioner complained of the failure of your Commission to comply with the judgment of the FHC in Suit No: FHC/ABJ/CS/709/2011 delivered by Hon. Justice D. U Okorowo on 18th day of July 2012, restraining your Commission from interfering in the business of the petitioners and consequent removal as directors. It also requested the Commission to brief the AGF on its “level of compliance with the letters mentioned in the paragraph 2 above”.

 PENCOM, in its reply, maintained that it had neither disobeyed nor frustrated the decision of the court in civil suit, FHC/ABJ.709/2011. Rather, an appeal against the Judgment was filed and an order of stay of execution issued in favour of PENCOM by Hon Justice G.O. Kolawole of the Federal High Court, Abuja, pending the appeal in CA/A/428/2012. 

 The Commission said, among others, that at a meeting of all parties summoned by the former AGF, Mohammed Adoke, SAN, on August 26, 2011, the AGF confirmed “that the Commission was well within its powers to establish the Interim Management Committee (IMC); that the affected Directors stood removed; that the IMC should remain…and that the findings of the Commission against the erstwhile Directors of FGPL were tainted with criminality”.

 It explained that even “the Honourable AGF had also filed a separate appeal challenging the same Judgment of the Federal High Court in the case under reference through Mrs. Olabisi Soyebi, SAN of Abdulahi Ibrahim & Co. The Appeals had been consolidated and adjourned to 5 April, 2017”.

 All eyes are now on the judiciary and prosecutorial agencies for speedy dispensation of justice in what appears to be one week one trouble for the ex-Rep.