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PETITION TO THE SENATE BY TOLU BABALEYE ESQ. FOR THE INVESTIGATION OF ALLEGED MISSING FUND IN ONDO STATE;
IS THIS A GENUINE CASE OF IGNORANCE OF THE LEARNED, OR POLITICS TAKEN TOO FAR?
A REJOINDER BY FEMI EMMANUEL EMODAMORI
I have a lot of respect for Tolu Babaleye Esq., and I think the respect is mutual. We meet and exchange quite a lot of pleasantries every now and then. The last time we met at the Ondo State High Court in Akure, I humorously called him the Troubler of Israel. That drew a hilarious laughter from him and other colleagues who were with us. We are both Legal Practitioners. But he is equally a politician, while I am not. We have handled cases in courts as opposing counsel, a number of times.
The beauty of our training as Lawyers, however, is that even while we are in legal warfare for opposing parties in court, we remember and respect our sworn ‘oath’ as Learned Friends. But that would never take away our objectivity in driving home our divergent views with the expected vehemence.
I am afraid, I have to tackle Tolu Babaleye Esq. on one of such points of divergence, not in the Courtroom though, but in the Public Square, over a public issue that has rightly or wrongly generated a lot of public interest. That is, the allegedly missing N4.3Billion fund belonging to the Ondo State Government, which the State Commissioner for Finance as well as some principal officers of the State House of Assembly have repeatedly claimed was never missing, but actually discovered by the current administration sometime in year 2018 in a ten year old dormant (or secret?) account predating the administration, recovered, and appropriated in the 2019 Appropriation Law of the State.
On June 12, 2020, which coincidentally is a National Holiday to celebrate Democracy in Nigeria, or mourn the absence of it in the true sense, I read, with dismay, the news of a petition written by my learned friend, Tolu Babaleye Esq., to the Senate of the Federal Republic of Nigeria, calling for a probe or investigation into the alleged missing fund belonging to the Ondo State Government. Distinguished Senator Ayo Akinyelure, a PDP member representing Ondo Central, who is also the Chairman of the Senate Committee on Ethics, Privileges and Public Petition, was said to have drawn the attention of the Senate to the petition by Tolu Babaleye Esq. during a plenary on 11th June, 2020, and laid same before the Senate, after which it was referred to his Committee for report within four weeks.
With due respect, I regard Tolu Babaleye’s petition to the Senate as absurd, embarrassing, and a complete mockery of the spirit and letters of Federalism, as explicitly articulated in the Constitution of the Federal Republic of Nigeria, 1999 (as amended). I am not saying this for any political reason; neither would I want to dampen the zeal of Tolu Babaleye Esq. or any other Nigerian who may be genuinely interested in probity, accountability and good governance. No. In the concluding part of this write up, I will, with all sense of humility, let the readers into a glimpse of my public and private advocacy for transparency and accountability, based on which I could proudly say that I have been fighting that good cause with huge personal material and financial sacrifices, more than most of my contemporaries in the legal profession.
I am simply being driven in writing this rejoinder, by my personal conviction that Lawyers should talk and act like Lawyers, and not like carpenters, like Fela Anikulapo Kuti would say.
What Tolu Babaleye Esq. alleged in his petition, is “connivance” by “top management staff of Zenith Bank with some syndicate in the Ondo State Government for fraudulent concealment of over N4B….for ten years (sic) belonging to Ondo State Government.”
In the first place, the Senate does not have the constitutional power to investigate and/or prosecute fraud or other financial crimes. It is the various security or anti-corruption agencies established under our laws that have the powers to do so. These include the Economic and Financial Crimes Commission (EFCC), The Independent Corrupt Practices and other Related Offences Commission (ICPC) and the regular Nigeria Police Force, as strange as this may sound to the layman.
The constitutional function of the Senate, with regard to alleged misappropriation or mismanagement of public fund, is limited to what is called oversight functions, and the purpose of the senatorial inquest is only to make laws that would prevent future abuse of office and waste in the management of such public funds. Most importantly however, the Senate can only invoke such powers in dealing with the funds of the Federal Government which it (the Senate) had appropriated and/or persons connected with the management of such Federal Government fund.
Section 88 (1) & (2) of the Constitution is very clear on this, I quote same verbatim below:
“S.88 (1) Subject to the provisions of this Constitution, each House of the National Assembly shall have power by resolution published in its journal or in the Official Gazette of the Government of the Federation to direct or cause to be directed an investigation into:
any matter or thing with respect to which it has power to make laws; and
the conduct of affairs of any person, authority, Ministry or government department charged, or intended to be charged, with the duty of or responsibility for-
executing or administering laws enacted by the National Assembly, and disbursing or administering moneys appropriated by the National Assembly.
(2) The powers conferred on the National Assembly under the provision of this section are exercisable only for the purpose of enabling it to-
(a) make laws with respect to any matter within its legislative competence and correct any defects in the existing laws; and
(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”
The alleged missing fund in respect of which Tolu Babaleye Esq. wrote a petition to the Senate did/does not belong to the Federal Government, and was never appropriated by the National Assembly. Tolu Babaleye expressly referred to it as “fund belonging to Ondo State Government”. The Senate or National Assembly therefore lacks the constitutional power to investigate same, for any reason whatsoever.
It is only the Ondo State House of Assembly that could investigate and legislate on same, or expose any “corruption, inefficiency or waste” in its disbursement, by virtue of the corresponding powers conferred on the State House of Assembly in Section 128 of the same Constitution.
Nigeria is a Federal System of government, as expressly stated in Section 2(2) of the Constitution. Section 4(1) of the Constitution vests the legislative powers of the Federal Republic of Nigeria in a National Assembly for the Federation, which consists of the Senate and the House of Representatives, while Section 4(6) thereof clearly states that “The legislative powers of a State of the Federation shall be vested in the House of Assembly of the State.”
It is a constitutional aberration to be calling on the National Assembly to exercise the powers conferred on the Ondo State House of Assembly in this context. The Senate cannot summon or investigate any official of the Ondo State Government on the strength of the purported petition of Tolu Babaleye Esq. The anti-corruption agencies however have the powers to do so, irrespective of the fact that the fund in question belongs to the State, by virtue of the Supreme Court decision in DARIYE V. F.R.N (2015) 10 NWLR (PT 1467) 325 AT PAGES 353-354, PARAGRAPHS H-C. The learned Legal Practitioner and the Distinguished Senator Ayo Akinyelure should know better.
My second grouse with Tolu Babaleye’s petition is that the issue itself is already being investigated by the Ondo State House of Assembly. As earlier stated, I am aware that the State Commissioner for Finance as well as some principal officers of the State House of Assembly, have issued statements asserting that the money was actually discovered by the current administration in Ondo State sometime in year 2018, after ten years, and that same was recovered and captured in the year 2019 Appropriation Law of the State, as passed by the State House of Assembly.
Political commentators may be quick to ask if members of the State House of Assembly (or at least 19 of them) are not solidly behind Arakunrin Oluwarotimi Akeredolu, SAN, and had even collectively contributed millions of naira to purchase an expression of interest form for him to launch his second term bid? No comment. I am not a politician. My own constituency is the law. And as a Lawyer, I know that the 2019 Appropriation Law of Ondo State is a public document that is readily available and accessible for scrutiny for those who are sincerely pursuing accountability or transparency, and not something else.
Assuming there is any suspicious gap in the investigation and eventual report of the State House of Assembly on the matter, the instrumentality of the law is available for anyone who wants to go further.
Tolu Babaleye Esq., or any other person who is sure of his facts, can write a petition to the EFCC or ICPC, rather than making a mockery of our Federal system of government and the constitutionally stipulated division of powers among the federating units, by calling on the Senate to usurp the powers of the State legislature.
The move by Tolu Babaleye Esq. in this regard is either a case of sincere ignorance of the ‘learned’, for which he should nonetheless be commended but corrected, or a case of political hypocrisy taken too far. My fear is that it is actually going to be extremely difficult for me to tackle those who may regard the move as a product of the latter. I have my reasons.
Abdulmumin Jibrin, the former Chairman of the House of Representatives’ Committee on Appropriation, was illegally suspended from the House for 180 legislative days, with effect from September 28, 2016, for raising allegations of budget padding and other financial atrocities in the House of Representatives.
He fought his suspension in court. Virtually all Nigerians who yearn for probity and accountability in governance, and the National Assembly in particular, stood in solidarity with Abdulmumin Jibrin. But the same Tolu Babaleye was retained by Nicholas Ossai-the then Chairman of the House Committee on Ethics, which recommended Jubrin’s unconstitutional suspension-, and Orker Jev Yisa-who actually moved the motion for his suspension, to file all sorts of spurious interlocutory applications and appeals aimed at scuttling the hearing of the substantive case of the anti-corruption fighter.
The Supreme Court, eventually and unfortunately, had to descend on Tolu Babaleye Esq. with a fine of Two Million Naira, to be personally paid by him, for what the Court described as his “vexatious and frivolous appeals” aimed at delaying justice. He acted as an advocate, I may argue. But what do I tell those who would say that what we advocate tells a lot about who we are?
One of my favourite Bible verses is Act of the Apostles 1:1. It speaks of “…all the things which Jesus began both to do and preach.” We must all come to a point where we do what we preach. Only then can we be properly defined for what we are, and only then can we recreate the Nigeria of our dream.
I have been an advocate of accountability and transparency, not just in governance, but as a way of personal life.
For the past five years, every dime I have ever earned, including recharge card tokens sent by indigent clients showing appreciation is imputed into a central system in the office, and accessible to everybody in the Chambers, including non-Lawyers. May I never earn what I cannot publicly disclose. And honestly, I am not a poor man. You cannot ask, how does he get the money? You can only ask, how does he spend it?
The same believe in accountability and transparency drove me to take and fight the Freedom of Information case of MARTINS ALO V. SPEAKER, ONDO STATE HOUSE OF ASSEMBLY & ANOR, to assert the right of the citizens to demand accountability and audited accounts from their government, under the Freedom of Information Act. I started the case for Martins Alo, a Civil Rights Activist here in Ondo State, during the tenure of Dr. Olusegun Mimiko, against the Speaker of the State House of Assembly and the State Auditor-General, right from the State High Court, through the Court of Appeal, and same is now pending before the Supreme Court.
The High Court, presided over by Hon. Justice W.A Akintoroye, held, on 18th July, 2016, that the Freedom of Information Act was not applicable to States, and that my client had no locus standi or legal right to demand for the Audited Accounts of the Ondo State Government. We thanked His Lordship and moved upstairs.
The Akure Judicial Division of the Court of Appeal, in a locus classicus judgment delivered on 27th March, 2018 in Appeal No: CA/AK/4/2017, unanimously held that the Freedom of Information Act is applicable to States, and that the citizens have the legal right or locus standi to demand for accountability or Audited Accounts from their government, without even giving the government any reason for demanding for such documents. It was a revolutionary judgment that reverberated across the entire country, and boosted our collective fight for probity and accountability in governance. It was reported as ALO V. SPEAKER, ONDO STATE HOUSE OF ASSEMBLY & ANOR (2018) LPELR-45143(CA).
The Ondo State Government appealed the judgment to the Supreme Court in Appeal N. SC 1021/2018, and the appeal is still pending. I have been handling the case pro bono; that is, free of charge.
I have had to personally sue a former Acting Chief Judge in Ondo State in relation to alleged age falsification and illegal occupation of office. We all know what happened thereafter.
I have also had to personally file a Suit at the Federal High Court in Abuja, with number FHC/ABJ/ 1046/2015, against the National Judicial Council (NJC), for shielding a former Chief Judge from Ondo State who issued a false certificate to the effect that he was the person who administered the oath of office on an illegally sworn-in former ‘Deputy Governor’, whereas it was the then Attorney-General who administered the oath, in an unprecedented violation of Sections 185(1) & (2) and 187(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
I had written a petition to NJC over the false certification. My petition was sent to the Chief Judge for reaction. I later requested for the Certified True Copy of the reaction of the former Chief Judge to the same petition, but the NJC replied that it was a classified document which it could not oblige me. I approached the Court under the same Freedom of Information Act, and the NJC had to give me the funny reply of the former Chief Judge. The reply was published by the press, and I still have it in my archive.
I released the video of that illegal swearing-in ceremony to the whole world to show how dubious the certification of the former Chief Judge was, because I got all my facts before starting the battle.
I do not want to mention many other equally serious public advocacy battles that I have fought, at great risk to my personal safety, and huge financial sacrifices, using the instrumentality of the law, just to hold personality cults and institutions that are hitherto considered sacred, accountable.
With all sense of humility, not too many Lawyers have travelled, or would ever travel some of these dangerous paths.
All these I have done, not for any political reasons or incentives. I am not a member of any political party, and would never join any political party. I have never contested any election, and would never contest any election. I have never taken any political appointment, and would never take any political appointment, not even for the prestigious office of the Attorney-General. I have never taken a dime, either directly or by proxy, from any human being, dead or alive, to facilitate or sponsor my public advocacy. I am simply running a race in line with my own calling, and always ready to commit my resources to whatever I believe.
I therefore hope my beloved Learned Friend, Tolu Babaleye Esq., would learn to deal with politics as a politician, where propaganda and any other foul means would seem to be acceptable, but handle legal issues as a knowledgeable Legal Practitioner, so that the incarnates of Fela Anikulapo Kuti would stop calling us Suegbe Lawyers. His petition to the Senate is a monumental blunder.
Femi Emmanuel Emodamori
13th June, 2020.