The Federal High, Abuja has fixed March 26 to rule on a motion of no-case-submission filed by Director-General of the National Broadcasting Commission (NBC), Modibo Kawu over alleged inordinate disbursement of N2.5bn Federal Government Digital Switch Over project.
Pinnacle Communications Ltd, the company’s Chairman, Lucky Omoluwa and the Chief Operating Officer of the same firm, Dipo Onifade were the others whose similar motions would be decided on the next adjourned date.
Justice Folashade Ogunbanjo-Giwa fixed the date after counsel to all the parties adopted their addresses.
The Independent Corrupt Practices Commission, in a 12-count charge, accused them of abuse of office, money laundering and misleading a public officer with the intent to defraud the federal government, in contravention of Section 26 (1) (c) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 19 of the same law.
Mr Abdulhakeem Mustapha, SAN, Counsel for Kawu, said that the failure of the prosecution to link his client with any of the ingredients of the alleged offences necessitated the application.
Mustapha explained that the onus was on the prosecution team to establish a clear linkage of the defendant applicant with the alleged infraction that brought about the criminal charges.
He said Kawu as the chief executive of the commission mandated to handle the country’s digital switch over had not committed any offences for recommending payment of the N2.5 billion seed grant to Pinnacle Communications.
Mustapha also averred that Lai Mohammed, the Minister of Information and Culture, who approved the payment had not issued any quarries against the transaction.
He said it was unusual and unforgivable for the prosecution to avoid bringing the Minister of Information and Culture to testify in a transaction that was approved by him.
The counsel for first defendant applicant further said that the testimonies of the nine prosecution witnesses were contradictory and could be used as vital evidence by the court.
Mustapha said the proceeding is a violation of the sections 302 and 303 of the Administration of Criminal Justice Act (ACDJA) as the prosecution failed to prove beyond reasonable doubt that fraud and had conspiracy occurred.
According to him, both digital switch over white paper and minutes of meeting leading to the approval and disbursement of the fund exonerate Kawu from any wrongdoing.
“My Lord, we therefore urge the court to discharge and acquit Kawu from further trial. We pray the court to uphold our no-case-submission’’, Mustapha said.
Dr Alex Izinyo, SAN, Counsel for both Omoluwa and Onifade averred that the prosecution had failed to meet the minimum standard in criminal prosecution, adding that no criminal actions had been linked with his clients.
“Sections 302 and 303 of the Administration of Criminal Justice Act have made it easier for the court to consider the merit of this case. It is enough to prove a mere prima facie in criminal trial.
“The burden of proof lies with the prosecution and not the defendants as they have done in this regard. The prosecution has in this instance asked us to prove out guilt.
“From the surface meaning of the charge, the prosecution fails to establish the nucleus of the offence, but went ahead to rob my clients with offence of conspiracy.
“How could the prosecution claim that the applicants conspired when the root of the main offence is yet to be ascertain. The question to be asked is what the offences of my clients is really?’’.
“My Lord, my clients operate one of the prestigious indigenous digital switch over firm. It is also true that the firm won the bid to handle the country’s digital switch over contract.
“The digital switch over white paper spells out the modalities of the contract which includes payment of seed grant to companies engaged to handle the process.
“It was on the strength of this that NBC and Minister of Information gave approval for the payment of N2.5 billion to Pinnacle. The firm had delivered two of the projects and still working on others, so what is the offence?’’, Izinyo said.
He therefore said: “My Lord we urge you to uphold this no-case-submission in the interest of justice and fair play in the country’s business environment’’.
Mr A.V. Atuwewu, SAN, Counsel for the fourth defendant applicant (Pinnacle Communications) adopted the submissions made by the two defendants’ counsel, adding, however, that the charge was “a lie unto itself’’.
The counsel said it was clear that nobody had made any complaint on this transaction to the Independent Corruption Practices and Other Related Commission (ICPC).
“The fact that the fourth defendant applicant is a critical player in the digital switch over sector cannot be denied. The firm has done been meticulous in the handling of the project and has not drawn funds it was not entitled.
“I therefore urge the court to uphold this motion on no-case-submission as no evidence has been established linking my client with charge before the court’’, he said.
Mr Henry Emore, the Prosecution, however, urged that court to discountenance the prayers for the upholding of the motion, adding that the prosecution had established a prima facie against all the defendant applicants.
“At this stage My Lord, the minimal standard is the ability to establish prima facie against the defendants. We are not obliged to prove the case beyond reasonable doubt at this stage of the trial.
“They have dwelled so much on the absence of the minister of Information and Culture to testify in this matter. We felt the nine witnesses we brought had done justice to the case.
“In any case, My Lord had urged them to invite the minister if they so wish and if that would help their defence. All we are holding onto is that the minister was misled to approve the seed grant of N2.5 billion to Pinnacle’’, Emore said.