The Court of Appeal’s decision setting aside the two-year jail term or an option of N750,000 fine slammed against convicted pension thief, Yakubu Yusuf, and substituting it with more a stringent punishment is reassuring, writes Davidson Iriekpen
At a time when all hope is lost that the judiciary can deal with corruption in the country, the Court of Appeal in Abuja last Wednesday proved everyone wrong when it set aside the two-year jail term and an option of N750,000 fine imposed by the High Court of the Federal Capital Territory on a former official of the Police Pension Office, Yakubu Yusuf, convited for stealing N24billion pension funds.
A three-man panel of the appellate court headed by Justice Abdu Aboki, in a unanimous judgment, described the high court’s sentence as unreasonable and substituted it six years imprisonment with an addition of N22.9billion fine.
Justice Emmanuel Agim who delivered the lead judgment of the court, ruled that “the sentences levied” by the high court “are clearly light and lenient ones.” He ruled that this allowed “the convict, who had admitted misappropriating or stealing N24billion, the option to pay the sum of N250,000 per count of offence in lieu of serving a prison term of two years for the offence,” to enjoy the huge balance he had in his possession.
Justice Agim held that the ‘amount’ of the sentences “is paltry, a pittance and unreasonably low.” He noted that it was “disproportionate to the amount stolen and therefore can comfortably and quickly be paid by the convict from the humongous amount stolen.”
He added that with the sentence, the convict would be left with “a huge balance of the stolen funds in his possession and without really causing him any pain of punishment.”
In 2013, this case drew a nationwide outrage against the judiciary when Justice Abubakar Talba convicted Yusufu and sentenced him to two years imprisonment with an option of N750,000 fine. The convict, a former Assistant Director in the federal civil service, admitted to being part of those who stole N32 billion. His sentence, which was the first conviction in an elaborate scam that came to light in 2012, involved several top officials, offices and banks.
The convict was tried on a 20-count charge alongside Atiku Abubakar Kigo (Permanent Secretary), Ahmed Inuwa Wada (Director), Veronica Onyegbula (Cashier) and Sani Habila Zira (ICT Officer). He later agreed to a plea bargain and pleaded guilty to betraying trust and fraudulently converting N2 billion of police pension funds. He admitted to offences relating specifically to him, each involving betrayal of trust and the conversion of N1 billion apiece.
But to the consternation of Nigerians, Justice Talba handed him a mere sentence of six years in jail and an option of N750,000 which the convict promptly paid and walked free shortly after the judgment was delivered.
Although two years imprisonment was the maximum jail term with an option of undisclosed fine prescribed as punishment by Section 309 of the Penal Code Act, under which the convict and his co-defendants were charged, many observers had contended that the judge did not exercise his discretion judiciously.
Following this, the Economic and Financial Crimes Commission (EFCC) which charged the convict, through its private prosecutor, Mr. Rotimi Jacobs (SAN), appealed against the judgment. But delivering the lead judgment,
Justice Agim held that the considerations of the trial judge in imposing the light sentence were contrary to judicially established principles. He noted that there was no monetary value of the properties already forfeited by Yusufu to justify the light sentence imposed on him.
“I hold that the sentence of fine of N250,000 in lieu of imprisonment for a term of two years for each offence is unreasonable, unjust, unfair, irrational, arbitrary, and contrary to judicially established principles as it is not the result of a judicious and judicial exercise of the trial court’s sentence discretion,” he said.
He held that considering the amount stolen, the nature and gravity of the offence, its destructive effect on the country, and its impact on retired police officers, the trial court ought to have imposed a severe sentence that would deter further commission of such crime and prevent the convict from retaining any part of the proceeds of the crime.
Justice Agim also imposed two years imprisonment on the convict on each of the three counts and in addition a fine of N20billion on the first count, N1.4 billion on the second count and N1.5 billion on the third count.
The judge held that while the monetary fines on each of the counts amounting to N2.9bn would “run cumulatively,” the two years jail terms on each of the three counts would run “consecutively,” giving rise to a total of six years imprisonment. He held: “In reviewing the sentence of imprisonment with option to pay fine, as in this case, this court can vary the sentence to one of both imprisonment and fine or imprisonment without option to pay fine.
“Considering the humongous amount stolen, the nature and gravity of the crime and its destructive effect on the country and its impact on retired police officers and the grave breach of public trust, a severe sentence that would deter the further commission of such a crime and prevent the convict from retaining any part of what he stole to avoid him obtaining financial benefit from his crime should be imposed.
Whether deliberately or otherwise, the same mistake that Justice Talba made 2013 was also repeated recently when Justice Adebukola Banjoko also of the same court delivered a similar judgment when she convicted a former Managing Director of the Rural Electrification Agency, Samuel Ibi Gekpe.
Gekpe and other directors of the agency were arraigned for disregarding the provisions of the Public Procurement Act by misappropriating a whopping sum of N6billion. The funds were mismanaged in the payment for rural electrification contracts which they purportedly awarded as the agency’s Public Procurement Committee in 2008.
The EFCC then moved in by arraigning them for criminal breach of trust before Justice Banjoko. The other defendants were a former Permanent Secretary in the Ministry of Power, Dr. Abdullahi Aliyu, an accountant in the agency, Simon Kirdi Nanle, a director, Lawrence Orekoya, an assistant director, Abdulsamad Jahun and the agency’s former Head of Legal Department, Kayode Oyedeji.
During the trial, the prosecution team, led by Mr. Kemi Pinheiro (SAN), called seven witnesses from the Corporate Affairs Commission (CAC), the Central Bank of Nigeria (CBN), the United Bank for Africa (UBA) Plc, the agency’s officers and an EFCC operative, Ibrahim Ahmed. The defendants, represented by Paul Ewekoro (SAN), made a no-case submission, which was dismissed.
But in her verdict, Justice Banjoko dismissed the first defendant’s application challenging the court’s jurisdiction to entertain the charge. She found that the prosecution proved the ingredients of the offences of criminal breach of trust and conspiracy.
The judge held that the defendants recklessly disregarded Public Procurement Act, misappropriated N6billion in contract payments. She found all the defendants guilty as charged. She sentenced Gekpe to three years imprisonment with an option to pay N5 million fine. The judge also sentenced the other defendants to three years imprisonment but with an option of N500,000 fine each. The fines according to her were to be paid within 30 days from judgment day.
In an era when the country is doing everything to reduce corruption to the barest minimum, observers had described the verdict as ridiculous and a slap on the wrist. They wondered why paltry sums of N5 million and N500,000 when compared to the N6billion that the convicts were said to have misappropriated. The observers had equally wondered who on earth, having stolen N6billion would not pay N5million or N500,000 to get himself freedom?
Today, Nigerians know that corruption is the greatest problem facing the country. The malaise is seen as the greatest problem militating against growth and development. It has been argued that the damage corruption had done to the polity and the generality of the people is immeasurable.
Observers believe that the menace has become so endemic and devastating that the nation now seems to be at crossroads. To them, nothing seems to be working well in the country because of corruption. The roads are bad, the power situation has remained deplorable, the railway lines remain dysfunctional, the airports are lacking the necessary facilities, hospitals are nothing but mortuaries and lacking in necessary facilities and the educational institutions are in comatose. All these are because the monies budgeted for these facilities to work are diverted to private pockets and accounts.
Even monies for pensioners are not spared. All too often, Nigerians are inundated with news of how pensioners die while waiting for their pensions or they are not paid at all because they have been pocketed by those in charge of pension management.
The Appeal Court judge said this much while expressing concerns over the plight of the retired police officers who must have been at the receiving end of the massive theft of the pension funds. He noted: “The offence committed by the respondent, by its nature, involves a grave breach of trust, erodes public confidence in public governance and causes retired police officers hardship and suffering. The funds stolen or misappropriated by the convict are police pension funds for the payment of monthly pensions and other retirement benefits of police officers nationwide.
“The theft or misappropriation of over N24billion of that fund would make the prompt payment of monthly pensions to retired police officers very difficult, if not impossible, with attendant hardship and suffering inflicted on such retired officers who rely on their monthly pensions as their only means or source of sustenance in retirement.
“The hopeless, helpless and dehumanising conditions the retired police officers have been put into by this offence that has become habitual and widespread amongst government officials in pensions departments of government whose duties are to be in custody of pension funds and process the payment of gratuities, monthly pensions and other retirement benefits to retired public servants is obvious.”
The judgment could not have come at a better time.
He held that considering the amount stolen, the nature and gravity of the offence, its destructive effect on the country, and its impact on retired police officers, the trial court ought to have imposed a severe sentence