A ‘Whistleblower’ Misadventure at NPA

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The reforms embarked upon by the Managing Director of the Nigerian Port Authority , Ms. Hadiza Bala-Usman, since her assumption of office, has left no one in doubt about her resolve to right the wrongs of the past, block all avenues of leakages and save more money for the government. Some of her actions that have ruffled feathers were targeted to rein in impunity and lawlessness by powerful private interests. Bala-Usman has burnt down their ‘untouchable’ aura, forced them to adhere to the rule of law and restored investor confidence in the system. To get back at her, entrenched interests have continued to make effort to get the government to reverse some of her tough decisions. The spurious claim few days ago by a ‘whistleblower’ of an account that was secretly being operated by the Nigerian Ports Authority to illegally collect revenue from vessels, is one of the many plan to get even with her. Eromosele Abiodun reports

Without any doubt, if there is any government agency in Nigeria today that epitomises the anti-corruption war of the Buhari administration, that institution is certainly the Nigerian Ports Authority (NPA) under the leadership of the current Managing Director, Hadiza Bala-Usman. However, in a country where entrenched interest will do anything to get people perceived to be stumbling block to their criminal enterprising that they have sustained by ripping off the Nigerian government via dubious contracts and violation of laid-down rules over the years, you never can be certain what extent they can go to achieve their object. Any discerning observer of recent developments in the Nigerian ports system will know that reforms embarked upon by Bala-Usman have ruffled feathers and they are ready to do anything to get back at the NPA. This was what played out a few days ago when a certain John Okupurhe wrote a letter to President Muhammadu Buhari, accusing the Office of the Attorney General of the Federation (AGF).

Okpurhe, in a letter written by his lawyer, Aliyu Lemu, dated June 22, 2020, accused the AGF of refusing to pay him commission after exposing over $1billion (N420 billion) hidden in Unity Bank Plc.

Okupurhe said he expected his share after he exposed the account that was secretly being operated by NPA to illegally collect revenue from vessels.

He said he provided the details to the Office of the AGF of the secret account in line with the whistle-blower policy, and that an agreement was signed.

The agreement stated that Okpurhe would be entitled to a commission if the information provided turned out credible.

Okpurhe said after playing his own part, the AGF’s office began to give excuses.

The letter read in part, “Pursuant to the whistleblower policy of the federal government, our client approached the Office of the AGF with confidential information in respect of hidden public funds concealed in a commercial bank in Lagos contrary to the Treasury Single Account policy which requires all public revenue or funds to be domiciled in the Central Bank of Nigeria.

“Our client presented the Office of the AGF with qualifying information on a cloned account with the Nigerian Ports Authority which was being used to illegally collect revenue from vessels by the signatories who are no longer in the service of the NPA.

“Upon establishing that our client’s information qualified under the whistleblower policy, the Office of the AGF signed a whistleblower agreement with our client through his appointed counsel- Mamman, Maiyaki & Co.

“The information provided by our client eventually led to the exposure of the hidden/concealed funds in Unity Bank Plc to the tune of $1,034,515, 000.”

He added that the Head of Asset Management and Recovery Unit, Mrs. Ladidi Mohammed, informed him that the matter was in court and that plans had changed.

He added: “On the next day, one Ms. Bunmi, who deputises for Mrs. Mohammed, called our client and asked him to come alone without a lawyer. Upon arrival, she informed our client that there was no pending matter in court on the account.”

He said he was told that because the money involved was huge, the Office of the AGF recommended a private firm with which he should enter into a contract to help him get the funds.

Okpurhe said upon the insistence of the AGF’s office, he was made to sign a Memorandum of Understanding with the company to forfeit 60 percent of his reward.

He said in a dramatic twist, his lawyer was attacked by armed policemen in his office, who robbed him and made away with the original copy of the agreement signed with the AGF.

Okpurhe, however, called on the President to quickly intervene as failure to pay him could compromise the whistleblower policy and affect public trust in the government.

Facts Laid Bare

In a swift reaction to the allegation, the NPA said the allegation was untrue and a misunderstanding of the purportedly hidden account.

According to NPA, “Although Mr. Okupurhe, claiming to be a whistleblower cited a wrong account number, the NPA truly operates an account with Unity Bank plc. However, this account has been inoperable due to a Suit No: FHC/L/CS/582/2010 GARNISHEE ORDER NISI- AMINU IBRAHIM & CO & ANOR. VS. NIGERIAN PORTS AUTHORITY. The fact of the case are as follows: The plaintiffs in this matter filed a suit against the Authority asking the Federal High Court to order the NPA to pay the sum of $9, 186, 701( Nine Million, One Hundred and Eighty Six Thousand, Seven Hundred and Forty-Million US Dollars) to the plaintiffs being the fees allegedly agreed on for consultancy services rendered by the plaintiffs and interest of the same sum at the rate of 10% from April 27 2004 until the final liquidation of the said debt.”

The plaintiff, the NPA added, claimed that they had carried out the assignment given to them by the NPA diligently and submitted their bills for payment, “but the Authority failed, refused or neglected to pay their professional fees. They accompanied their Writ of Summons with an affidavit stating that the Authority had no defence to the suit.

“In filling its defence, the Authority disputed the claims of the plaintiff for the following reasons: The plaintiffs did not carry out the assignment as required, a result of which there are discrepancies which made the reports they produced unreliable for the Authority’s use.

“The assignment was given on a “no cure, no pay basis,” which allowed the Authority not to pay in case of non-satisfactory performance. There was no evidence to ascertain how the consultants arrived at the sum claimed.

The Economic and Financial Crimes Commission, (EFCC) was investigating the matter at the time the suit was filed, a result for which payments for all contracts awarded during the period was suspended.”

NPA said it thereafter made an application requesting the court to allow it defend the suit on merit to enable it proffer evidence to confirm the failure of the consultants to execute the assignment diligently.

“The court reserved ruling on this application for December 13, 2006, but rather than deliver ruling on the set date, the court entered judgment against the Authority in the exact sums claimed by the plaintiffs.

“Dissatisfied by the judgment upon conviction that the weight of evidence favoured the Authority and that the learned judge erred in law and in fact by holding that the Authority had no defence, lawyers of the Authority were briefed to proceed to the Court of Appeal.

“The Court of Appeal entered judgment against to Authority on May 7, 2009 holding that there was no merit in its defence and therefore dismissing the appeal, “it stated.

The NPA added that it was surprised that the court did not consider the fact that the claim was the subject of an EFCC investigation and that the plaintiff did not deny its disputation of the means of computation of its alleged fees.

NPA Challenges Court Ruling

The NPA added that in view of the enormous sums of money awarded against it by the Court of Appeal and the conviction that there was apparent bias in the judgement of the court, it again, filed an appeal to the Supreme Court.

It added that it also applied for a stay of the execution of the Court of Appeal judgement on May 11, 2009.

It added, “On May 11, 2018, the Supreme Court, found that the plaintiffs rendered services, which were not paid for to the Authority and dismissed the Appeal. The authority had argued that the Federal High Court lacked jurisdiction to entertain the suit being a case for the recovery of professional fees and a matter of simple contract. But contrary to its earlier decisions in similar cases, the Supreme Court decided that the present case was not one of simple contract but the administrative decision of an agency of the federal government.

“Contrary to the authority’s hope that the Supreme Court would direct that the matter be referred to the appropriate trial court for fair hearing given the authority’s position that the services rendered did not satisfy the contract, it held that the authority should pay the plaintiffs the following: $9, 186, 701.00 plus pre and post judgment interest at the rate of 10% per annum with effect from April 27, 2004 until date of payment, N144, 303, 981.00 together with pre and post judgment interest at the rate of 10% per annum with effect from April 27, 2004 until date of payment.”

The above stated sums, it stated, translated into: Twenty-two Million, Five Hundred and Seven Thousand, Four Hundred and Seventeen United States Dollars and Forty-Five Cents.

“It should be stated at this juncture that following the judgement of the FHC in 2010, the judgment creditors had approached the court vide the Garnishee procedure to enforce the judgement. The FHC granted the Garnishee Order Nisi against the following banks with which the Authority holds accounts: Guaranty Trust Bank Plc, Access Bank Plc, Zenith Bank plc, United Bank for Africa plc, Unity Bank plc, Polaris Bank plc (Former Skye Bank). Union Bank Plc, Bank PHB, Ecobank Nigeria Plc and Intercontinental Bank plc.

“Based on the appeal going on then, the authority opposed the order of the court directing the bank to freeze the sums standing to its credit pending when the Garnishee Order will be absolute. The court then ordered a suspension of the Garnishee proceedings until the resolution of the appeal. Some of the banks, relying on the 2010 Garnishee order nisi, held on to the sums standing to the credit of the authority as at the date of the order and refused to transfer same to the Treasury Single Account when asked to,” it stated.

The NPA added, “Upon the determination of the case at the Supreme Court however, the judgment creditors continued with the Garnishee process. On May 30, 2019, the FHC made a garnishee order absolute against the authority’s account with Access Bank plc and GTBank. This was to the effect that the banks, may in satisfaction of the judgment debt transfer the sum to the judgment creditors.

“As the bank statement on the Nigeria Ports Authority’s Unity Bank Account No: 013670344 revealed, the debit of the sum of $1, 057, 772.0 on December 4, 2019 in favour of Suit No: FHC/L/CS/582/2010 GARNISHEE ORDER NISI- AMINU IBRAHIM & CO & ANOR. VS. NIGERIAN PORTS AUTHORITY was necessitated by Garnishee Order absolute.

“It is pertinent to point out that as of August 27, 2010 when the account was put on Garnishee, it had the total sum of $929,019.79. The difference between this sum and the sum of $1, 057, 772.0 on December 4, 2019, represents accrued interests in the period between August 27, 2010 and December 4, 2019 when the judgement creditor was credited.”

The NPA stressed that it is obvious that there is no cloned account as has been speculated in the alleged whistle blowing effort of Okpurhe.

The account under discussion, it added, was freezed on the strength of a court order while the money was transferred to the judgment credit, “without the knowledge of the authority following the Garnishee Order Absolute. The authority hereby reiterates its conviction that it did not get justice from the courts on this matter even though it pursued same to the Supreme Court.”

Malami Replies Okupurhe

Last week, the Attorney-General of the Federation and minister of Justice, Abubakar Malami (SAN) responded to Okupurhe’s allegation, that his office refused to pay him his fee after exposing over $1billion hidden in a bank.

The minister said the federal government only pays whistleblowers after a successful recovery of looted funds and not for mere tracing or exposure of suspected illegitimate funds.

In a statement by his special assistant on media and public relations, Dr. Umar Gwandu, Malami said, “The Office of the Attorney-General of the Federation and Minister of Justice wants to make it categorically clear that one does not get paid on account of exposing looted assets, but on successful recovery and lodgment of same into the designated assets recovery account at the Central Bank of Nigeria.”

Malami added, “The Office of the Attorney-General of the Federation and Minister of Justice wants to make it categorically clear that one does not get payment on account of exposing looted assets, but on successful recovery and lodgment of same into the designated assets recovery account at the Central Bank of Nigeria.”

While reeling out the procedure for engagement of a whistleblower or recovery agent as it relates to the Office of the AGF, he added: “A proposal is submitted to the Office of the Attorney-General of the Federation, a Letter of Engagement is issued to a whistleblower or recovery agent where the disclosure is assessed to have some prospects of success. The recovery agent or whistleblower is expected to notify in writing the acceptance of the engagement.

“The recovery agent or whistle-blower is expected, upon acceptance, to not only trace the assets but recover the same and have it deposited in a designated asset recovery account maintained by the federal government in the Central Bank which is usually provided to the recovery agent in writing.”

According to the AGF, where these funds are eventually claimed to have been lodged by a whistleblower or recovery agent, the Central Bank issues acknowledgment of receipt of the fund to the Office of Attorney-General on demand.

“It is the satisfaction of the above elements that entitles the whistle-blower or a recovery agent to a claim of the success fee and the payment is usually effected by the Federal Ministry of Finance and not the Office of the Attorney-General of the Federation.

“The role of the Office of the Attorney-General, in essence, is simply that of processing the above-listed documents to the Ministry of Finance which is the ministry saddled with the responsibility of effecting payment.”

Malami explained further that recovery is not about exposing the existence of certain assets in an account purported to have belonged to an agency of the government.

“It is about establishing that the funds in the account are looted assets or illegitimately warehoused and following that up with actual recovery and lodgement of the funds in the designated asset recovery account through judicial and extrajudicial means.

“Entitlement to recovery fees is for all intent and purposes contingent on lodgement of the purported/exposed assets constituting the subject of recovery into the Federal Government Recovery designated Account, “he added.

NPA Welcomes Reps Probe

Also last week, the NPA applauded the decision of the House of Representatives to probe an alleged secret account with Unity Bank Plc.

This follows a motion of urgent national importance and the consequent resolution of the House of Representatives to investigate an alleged secret account operated by the authority during plenary yesterday.

In a statement issued by its General Manager, Corporate and Strategic Communications, Jatto A Adams, the NPA reiterated the non-existence of such an account.

“While awaiting communications from the House committees on finance; and ports and harbours on the proposed investigations, the authority restates it position in the statement issued by management earlier this week that the Unity Bank account number: 0013680344, cited by the whistleblower, Mr. Okpurhe, does not exist as evidenced by a February 12,2020 letter from Unity Bank Plc,” it stated.

The NPA, added that it operates an account with Unity Bank Plc with account number: 0013670344 with a total sum of $1,057,772.03 as of December 4, 2019, “and not $1,034,515,000.00(one billion, thirty-four million, five hundred and fifteen thousand United States Dollars)” as alleged by the petitioner.