Why Kogi Panel Cleared Former Deputy Gov of Gross Misconduct

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•State assembly failed to call relevant witnesses, present documents
•Could not substantiate four charges, abandoned two pleadings

•Breaches constitution despite these findings

Alex Enumah in Abuja

The probe panel, which investigated the former Deputy Governor of Kogi State, Mr. Simon Achuba, on allegations of gross misconduct, returned a not-guilty verdict against him because none of the six-point charge against him was substantiated by the state House of Assembly, THISDAY learnt yesterday.

A copy of the report submitted to the state legislature last Friday, upon which the lawmakers summarily removed Achuba from office, despite his clearance, detailed how the legislators either failed to provide proofs to back their allegations against Achuba, or in cases where witnesses were called against the former deputy governor, their testimonies were too weak to convince the panel.

The panel, chaired by a Senior Advocate of Nigeria (SAN), Mr. John Baiyeshea, has as members: retired Justice S.S. Idalu, U.O. Onoja, E.I. Omuya, both lawyers, Venerable Z.O. Asun, Mohammed Ada Shuaibu, an engineer, and Dr. I. Ndagi Adamu.

The report said while the complainant, the Kogi State House of Assembly, had during the hearing failed to call relevant witnesses and tendered relevant documents to prove four of the charges against Achuba, it, however, abandoned two of the charges by not leading any evidence in them.
The seven-member panel, which the Chief Judge of Kogi State, Justice Nasiru Ajana, constituted on August 26, began sitting immediately by ordering the serving of the notice of allegations of gross misconduct on Achuba.

The allegations range from financial misconduct to scandalising the government and people of Kogi State.
However, the panel in its report titled Panel Investigating Allegations of Gross Misconduct against Deputy Governor of Kogi State: Report of Panel, Volume 3, dismissed one after the other, the six-point allegations against Achuba.

In hearing the petition, the panel said it was guided by section 188 of the 1999 Constitution in considering the facts, evidence, regulations, laws and all materials placed before it, adding that, “the issue for determination was whether the allegations of misconduct against the deputy governor as contained in the notice of allegations of misconduct have been proved by the complainant.”

On the allegations of financial misconduct and non-compliance with extant financial regulations and fiscal responsibility applicable to Kogi State, levelled against Achuba, the panel held that the allegations were not proved because it could not attach probate value to the documents tendered by the complainant as proof of the allegation.

It said: “In an attempt to establish this allegation, the Complainant called 8 witnesses and tendered Exhibits C13 – C14 (Extract of Audit Report) and Exhibits C15 – C15a, which are documents titled Release of Funds and Request for Approval of Funds. The summary of the evidence of all the said witnesses is that the Deputy Governor ought to retire some funds and reference is made in this allegation to records from the Accountant-General’s Office and other appropriate Agencies, which the Complainants claim indicate total non-compliance by the Deputy Governor but Exhibit C8, C9, C10, C11, C12 produced from the Accountant General’s office tendered by CW2, firstly are not signed documents except for its certification. So the maker is not known and by reason of them having not been signed originally, they are of no probative value. However, the said exhibits even if we are to take it that the certification on them by Elijah Ebinemi (Acting Director of treasury) are proper, will still not be helpful to prove the first allegation in that they are mere schedules of payment and not tantamount to actual payment. In fact there is no evidence before us to show that any amount stated in those exhibits was paid personally to the Deputy Governor.

“The witnesses under cross-examination by counsel to the respondent, Jibrin Okutepa SAN, all admitted that the Accounting Officer of the deputy governor’s Office is the permanent secretary and not the deputy governor.”
The panel further held that the allegation of financial impropriety was not established because vouchers to prove that the deputy governor actually collected money were not placed before it, a condition which was fatal to the allegation.

On the second charge, which bordered on deliberate disdain for decision of the Kogi State Executive Council on mode of execution of contracts between the state and third parties, the panel held that failure of the complainant to lead any evidence in that direction made the allegation deemed abandoned and is consequently not proved.
On the allegation of absconding from office and abandonment of official duties and functions, the panel also held that the allegation, like previous ones, was not proved.
“On this allegation, we find the evidence of CW1 – Secretary to the State Government, unhelpful to establish the allegation. Under cross-examination by J. S. Okutepa (SAN), counsel to the Deputy Governor, when the counsel wanted to know whether the way to know that the Deputy Governor was not at the ExCo meeting was to see the attendance in the minutes of the meeting, she answered that the minutes is a secret document. And when asked whether her office served notice on the Deputy Governor to attend meetings, her evasive answer was that attendance of ExCo meetings is statutory.

“Again when asked whether she issued query to the Deputy Governor on this allegation, she said the Deputy Governor is her boss, so she cannot issue him query. When asked whether the Governor issued a query to the Deputy Governor, she said no. The Panel finds it difficult to rely on this kind of evasive answers as evidence of proof of the allegation. Our position is reinforced by the defence of the Deputy Governor in Paragraph 16 (a) – (f) of his deposition wherein he gave facts to show that he has been attending to his official responsibilities.

The Deputy Governor also tendered Exhibit RL1, RL2, RL3, RL4 (which we accept) as evidence of performance of duties; attending to files, correspondence and official communications requiring his personal attention. CW 5 – The Permanent Secretary confirmed the facts in this Exhibit under cross-examination. CW 5 stated also under examination-in-chief that since he resumed in the Deputy Governor’s office in 2018, the Deputy Governor has attended to his duties except for occasions when he did not come to the office. But the witness did not say how many those occasions were. We accept the evidence of the Deputy Governor that apart from when he was on leave, there was no time he absconded from his duties as alleged,” the report said.
In dismissing the fourth allegation, which bordered on scandalising the state government, the panel held that the evidence led by the complainant fell short of the required minimum standard of acceptable prove.

The panel, in its verdict, said: “ In the usual normal legal context of matters of this nature, the material containing the exact words used or alleged to have been used by the Deputy Governor, which the Complainants have gone at length to quote supposedly verbatim (with underlining for emphasis), is supposed to be tendered in evidence. In the proceedings before us, in which we are being invited to pronounce on whether the allegation is proved or not proved, the standard of proof cannot be lowered since the determination of the civil rights and obligations of the Deputy Governor is seriously at stake in the proceedings.

“Therefore, it is our report that in our accusatorial legal system, the party that is accusing another, in this case, the complainant accusing the Deputy Governor, must bring evidence that meets the required minimum standard of acceptable proof. Therefore, in this particular allegation, since the complainants have gone to quote in extenso, allegedly/supposedly verbatim what they claim the Deputy Governor said on television/press, they have a duty to prove that those were the exact words of the Deputy Governor.

“The complainants are not to presume or assume that by merely quoting and even underlining for emphasis what they claimed the Deputy Governor said that the Panel would just believe it and it would be taken as the gospel truth of what is contained therein.”
Similarly on the allegation that the governor ridiculed the state by making public claim of his unpaid salaries, the panel held that failure of the complainant to present publication of his letters by his lawyers was fatal to the case.

The panel held that if anything, the position of the complainant, “his claim as regards nonpayment of salaries is believed to be false upon an objective consideration of the state of the state’s finances hitherto which is well known to all members of this house who also made efforts to find solutions” is an admission that the deputy governor’s salaries have indeed not been paid and has reason to complain.”

The panel further held that the complainant have not placed anything before it to show that the claim of the deputy governor is not true.
Following the failure of the complainant to lead any evidence on the sixth issue which alleged indictment of sponsoring communal unrest, murder and displacement of communities in Iyano, Ibaji LGA of Kogi State, the panel held that the allegation was not proved. “Also the report indicting the deputy governor was not presented,” the panel said.

It concluded: “In line with section 188(8) of the Constitution quoted herein before, we hereby report to the Kogi State House of Assembly that the allegations contained in the notice of allegations admitted in evidence by this panel as exhibit C7 have not been proved.”