34
PANEL INVESTIGATING ALLEGATIONS OF GROSS MISCONDUCT AGAINST DEPUTY GOVERNOR OF KOGI STATE REPORT OF PANEL VOLUME 3 DATED ___ DAY OF __________, 2019
PANEL INVESTIGATING ALLEGATIONS OF GROSS MISCONDUCT
AGAINST DEPUTY GOVERNOR OF KOGI STATE
REPORT
OF
PANEL
VOLUME 3
DATED ___ DAY OF __________, 2019
1
PANEL INVESTIGATING ALLEGATIONS OF GROSS MISCONDUCT AGAINST
DEPUTY GOVERNOR OF KOGI STATE
HIS EXCELLENCY, ELDER SIMON ACHUBA
Chairman: JOHN BAIYESHEA SAN
Member: HON. JUSTICE S.S IDAJILI (RTD)
Member: BARRISTER U. O. ONOJA
Member: BARRISTER E. I OMUYA
Member: VENERABLE Z. O ASUN
Member: ENGR. MUHAMMAD ADA SHUAIBU
Member: DR. I. NDAGI ADAMU
REPORT OF THE PANEL
1.0 INTRODUCTION
On the 26th of August, 2019, this Panel was inaugurated by the Hon. Chief
Judge of Kogi State, Justice Nasiru Ajana. Members of this Panel were sworn
in accordingly by the Chief Judge. Immediately after the swearing in on that
same day, we had a brief meeting, where we directed the Secretary of the
Panel to serve the notice of Allegations of Misconduct on the Deputy
Governor of Kogi State. We also directed the Secretary to search for a venue
of sitting of the Panel and we adjourned to a date to be subsequently named.
On the 5th of September, 2019 we had our inaugural sitting at the Conference
Room of Saatof Hotel, Lokoja. On that day, the Deputy Governor who is the
subject of the investigation attended the sitting with his team of lawyers. The
Complainant was also represented by a team of lawyers. Details of the
records of the proceedings of this Panel are contained in Volume 1 of our
report.
2
As a result of concerns raised about security and the unsuitable venue where
we had our inaugural sitting, both parties were asked to give their opinion
about the possibility of requesting the Chief Judge of Kogi State to provide a
place for us within the High Court Premises and it was agreed by all that a
letter be written to the Chief Judge of Kogi State to make that request. The
said letter was written, the Chief Judge of Kogi State graciously granted our
request and a court room was prepared for the sitting of the Panel within the
High Court premises and that is where the affairs of the Panel have been
conducted since 16th of September, 2019 when we resumed sitting.
The report we are to give essentially is to give account of the hearing, the
evidence, and the conclusion that this Panel has reached as required by
Section 188 of the Constitution of the Federal Republic of Nigeria 1999 (as
amended). Section 188 (8) of the said Constitution provides as follows:
“Where the Panel reports to the House of Assembly that
the allegation has not been proved, no further
proceedings shall be taken in respect of the matter.”
While Subsection 9 provides as follows:
“Where the report of the Panel is that the allegation
against the holder of the Office has been proved…”
From the foregoing, the Constitution envisages that this Panel is to make a
report on whether the allegations have been proved or have not been proved
and in order to be able to make such a report, the Panel will have to consider
the facts, the evidence, regulations, laws and other materials placed before
the Panel at the hearing.
Before proceeding further in this report, it is necessary to set out the Notice
of Allegation as presented to us by the Chief Judge of Kogi State from the
instruments he received from the Kogi State House of Assembly. They are
hereby set out hereunder as follows:
3
4
5
1. Financial Misappropriation and Non-compliance with Extant
Financial Regulations and Fiscal Responsibility Rules applicable in
Kogi State. Per the attached financial approvals and releases,
whereas His Excellency, Elder Simon Achuba is expected to
account by way of retirement for all funds released to him as
detailed in the attachments hereto, records from the Accountant-
General’s Office and other appropriate agencies indicate total
non-compliance.
2. Deliberate Disdain for Decisions of the Kogi State Executive Council
on Mode of Execution of Contracts Between the State and 3rd
Parties.
1. The Kogi State Executive Council, per the attached excerpts of
ExCo Meetings, resolved that nobody may enter into formal
contracts with any 3rd Party on behalf of the State except the
Secretary to the State Government, and only if said document
has gone through prior review by the Kogi State Ministry of
Justice, which upon finding it proper, must also affix the Official
Seal of the State.
2. The Deputy Governor as Chairman of several statutory boards
and committees deliberately ignored this ExCo decision and has
executed several Agreements/Contracts/Memoranda of
Understanding on behalf of the State with sundry 3rd Parties.
3. That it is instructive to note that in several instances, the terms to
which he obligated the State were oppressive and even
outrightly offensive.
4. That almost all of the Agreements/Contracts/Memoranda of
Understanding he so signed has led to disputes between the
State and other Parties, some of which still subsist.
3. Abscondment from Office and Abandonment of Official Duties and
Functions.
1. The Deputy Governor, even by his own admission, has not been
in his office or performed any official duties since about May
2018. He has also not attended any official
6
7
8
9
10
11
12
13
Before we go further in this report, it is pertinent to state also that in
accordance with Section 188 (7) of the Constitution, the Kogi State House of
Assembly made Rules of Procedure for the Investigation Panel dated 26th day
of August, 2019 under the hand of Right Hon. Matthew Kolawole, Speaker of
the Kogi State House of Assembly. It is also important to note that in this
assignment, the Panel relied on the Constitution of the Federal Republic of
Nigeria 1999 (as amended), guidance from the pronouncement of the Superior
Courts of Record on impeachment proceedings, particularly the Supreme Court
and other available rules and regulations that may be cited in the course of this
report as appropriate.
2.0 ADDRESS OF COUNSEL TO THE PARTIES
The address of J.S Okutepa (SAN), counsel to the respondent dated 7th October
2019, was filed on 8th October 2019. The said address was adopted at the
sitting of the Panel on the 11th October 2019. The address of Isaac Ekpa Esq,
counsel for the complainants was dated 9th October 2019 and filed same day
and was also adopted on the 11th October, 2019.
2.1 The respondent raised a preliminary objection to the effect that the
notice of gross misconduct is incompetent having not been served on the
Deputy Governor personally by the House of Assembly before this Panel was
set up to investigate the allegations. It is his submission that this Panel doesn’t
have the jurisdiction to deal with this matter. Counsel to the complainant
urged us to ignore this preliminary objection stating that jurisdiction of the
Panel doesn’t extend to issues that happened or didn’t happen at the House of
Assembly before this Panel was set up.
It is our report that we cannot look into what happened at the House of
Assembly. And we cannot pronounce on the legality and illegality of service of
the said notice on the respondents by the House of Assembly. That is for the
regular courts with requisite jurisdiction to do. We take the position that this
Panel duly complied with constitutional requirements for fair hearing by
ensuring that the notice of allegation of misconduct Exhibit C7 was duly served
by the secretary of this Panel on the Deputy Governor. Consequently in
response the Deputy Governor filed his defence by deposition in an affidavit
14
with exhibits. On the 5th of September 2019 which was our first sitting as borne
out in the record of proceedings Volume 2 of this report, the Deputy Governor
made appearance before us with his team of lawyers led by J.S Okutepa (SAN).
The Deputy Governor also attended subsequent proceedings with his lawyer
except for the proceedings of 11th October where he was absent but he was
represented by his team of lawyers. It is also on record that he participated
fully in the proceedings and took maximum advantage of the opportunity for
fair hearing which this Panel made available to all parties. We therefore hold
that all that the Panel did was within the constitutional purview.
2.2 Another preliminary point raised by the Deputy Governor’s counsel in
their address is that Exhibits C3 – C15a were not tendered by their maker
contrary to Section 83 of the Evidence Act and that the documents are of no
probative value. He cited a lot of authority and case law on the point. He also
stated that Exhibits C3 – C15a were not signed by the maker. It is our report
that since the Panel didn’t apply the strict rules of the Evidence Act, we
admitted the documents and will consider the probative value of the said
exhibits in our review of facts and evidence on record and will make further
report which will accord with the dictates of justice. We take note of all the
cases cited and since we are not writing a judgment of a court, we will
however be guided and be directed by the decisions of cases cited by counsel
to the parties.
2.3 On the merit of the case, the summary of the address of J.S Okutepa
(SAN), lead counsel of the Deputy Governor is that none of the allegations in
the notice of allegations Exhibit C7 was proved by the complainant against the
Deputy Governor. He cited several authorities to buttress his point. Counsel
urged us to prefer the defence put forward by the Deputy Governor and to
return a verdict of NOT PROVED in favour of the Deputy Governor in respect of
each of the allegations. Counsel also made a point that impeachment is not
made to score a political point, neither is it meant as a vendetta against the
Governor or Deputy Governor. On the other hand, Isaac Ekpa Esq, counsel who
stood in as a counsel at the address stage on behalf of Chief A.A Adeniyi, lead
counsel to the complainants, urged us to return a report that each of the
allegations have been proved except allegations No 2 and No 6 on the notice of
15
allegations Exhibit C7. Counsel admitted that those allegations were
abandoned and having been abandoned because no evidence was led on
them, they are of course NOT PROVED.
In the reply on point of law J.S Okutepa (SAN) counsel to the Deputy Governor
insisted that the allegations of misconduct against the Deputy Governor were
not proved at all by the complainant.
3.0 ISSUE(S) FOR DETERMINATION
We take cognisance of the issues formulated by the complainant and the
respondent in their final address. However, in consideration of the provision of
Section 188 (8) and (9) of the 1999 Constitution of the Federal Republic of
Nigeria (As amended), the lone issue for determination is as follows
‘’Whether the allegations of misconduct against the
Deputy Governor as contained in the notice of allegations
of misconduct, Exhibit C7 have been proved by the
complainants”.
4.0 PANEL’S REPORT
In coming to a conclusion whether the allegations against the Deputy Governor
have been proved or not proved, we take cognisance of the address of counsel
to both parties summarised above, details of which are in Volume 2 of this
report. In reviewing the facts and evidence, oral and documentary, placed
before us in order to make report, we decided to take each allegation seriatim,
that is, one after the other vis a vis the evidence of the Complainant and the
Respondent. We examined each of them and made report as follows:
4.1 ALLEGATION NUMBER 1:
“Financial Misappropriation and Non-compliance with
Extant Financial Regulations and Fiscal Responsibility
Rules applicable in Kogi State. Per the attached financial
approvals and releases, whereas His Excellency, Elder
Simon Achuba is expected to account by way of
16
retirement for all funds released to him as detailed in the
attachments hereto, records from the Accountant-
General’s Office and other appropriate agencies indicate
total non-compliance.”
4.2 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. This position is
buttressed by the answer of CW2 under cross – examination by J.S Okutepa
(SAN) counsel to the Deputy Governor where he stated as follows;
“There must be cash backup for schedules before
payment… Exhibit C8 – C12 are not payment vouchers …
Apart from the schedule, there must be a payment
voucher signed by the recipient of the money… Not all
approvals are cashed backed. There needs to be
availability of funds” (See record of proceedings Volume 2)
4.3 It is also to be noted that CW1 – CW8, all admitted that the Accounting
Officer in the Deputy Governor’s office is the Permanent Secretary and not the
Deputy Governor. We will highlight more on this later in this report. Suffice to
say for now that there is nothing on Exhibits C8 – C12 to indict the Deputy
Governor on.
17
Dealing with the issue of failure to retire funds, which is part of the first
allegation of misconduct quoted above, we find that this allegation has not
been established because some of the witnesses who testified for the
complainants, like CW 3, stated categorically under Cross-Examination by
saying that the “Accounting Officer for all funds in the Deputy Governor’s
office is the Permanent Secretary of that Office”. CW 4 also stated as follows
under cross examination that “It is common knowledge that the Permanent
Secretary in the Deputy Governor’s office is the Accounting Officer of that
office.” CW 5, Prince Ikuborije Olutoye Davies stated under cross examination
as follows ‘’As Permanent Secretary , Deputy Governor’s office , I am the
Accounting Officer and Chief Administrative officer., The said CW5 testified
on the 16th of September, 2019 and admitted categorically under
Examination-in-Chief that he is “the Accounting Officer and Chief
Administrative Officer” in the Deputy Governor’s office’’.
4.4 With regard to Exhibits C15 and C15a, it is our observation that the
document is for approval for the release of fund for the Deputy Governor’s
medical treatment abroad. We have not seen anything on the face of both
Exhibits C15 and C15a to show that the Deputy Governor personally received
the fund approved. On the face of the said Exhibits 15 and 15a titled ‘Release
of Fund’ (which is Exhibit C15), it is stated categorically that the fund to be
released is “payable through the Ag. Perm. Sec. Office of the Deputy
Governor”.
4.5 If indeed there was any release of fund, the actual voucher that the
recipient signed to collect the money was not placed before us. And even if
such a voucher exists, it will only be in the name of the Acting Permanent
Secretary who is authorised by the approving authority to receive the money
as clearly indicated on Exhibit C15. Under cross-examination by Chief A.A.
Adeniyi, lead counsel to the complainant, the Deputy Governor insisted that
even though the approved medical fund was his entitlement, it was not paid to
him directly but to the Permanent Secretary. And the Deputy Governor stated
further that even when he went for the medical trip, it was his aide that held
money and paid for bills when given.
4.6 This is therefore in consonance with the evidence of the Deputy Governor
by his deposition in Paragraph 14(a)-(i) of his affidavit wherein he maintained
18
categorically that he is not the accounting officer even for funds meant for him
or his Office. The Accounting Officer is the Permanent Secretary. The Deputy
Governor also said under cross-examination by Chief A.A Adeniyi and we found
it to be true from Exhibits C15 and C15a and the evidence of CW7–the
protocol officer, that no money is paid directly to the Deputy Governor but to
his officials even if meant for him. And that, it is the responsibility of those
officials, particularly the Permanent Secretary to retire such funds.
4.7 It is also our impression that even if there is a contention as to who
between the Deputy Governor and the Permanent Secretary in that office is to
give account or to retire funds, we resolve that contention in favour of the
Deputy Governor (and evidence on record, as we have stated, supports us that
it is the responsibility of the Permanent Secretary). There is nothing for us to
examine to the contrary especially since the Complainant did not tender
before us any “Financial Regulations and Fiscal Responsibility Rules
applicable in Kogi State” stated in the allegation to have been allegedly
breached. Mr Ekpa, counsel to the complainant when informed by Panel in the
course of address on the 11th 0f October 2019 that no such financial
regulations have been placed before the Panel, stated that it was not
necessary because it is not a law. We are unable to agree with him because
such a document or regulations or rules ought to have been tendered in
evidence or received as exhibit and will be put to witnesses through cross
examination particularly as it has become a vexed issue between the parties.
Non production of the document is a huge deficit to the complainant’s case.
4.8 Another important aspect of this allegation is the fact that the
complainants are building their case on Exhibits C15 and C15a to state that the
Deputy Governor didn’t retire funds for his medical bill but as we have stated
above, if the fund was ever released (Which there is no evidence of that before
us), it must have been released to the Acting Permanent Secretary in the office
of the Deputy Governor in 2017. But CW5 the Permanent Secretary in the
Deputy Governor’s office stated while under cross examination by J.S. Okutepa
(SAN) as follows “I resumed as Permanent Secretary in Deputy Governor’s
office in February 2nd (Sic), 2018”. This means therefore that CW5 was not the
Permanent Secretary that received the approved fund on Exhibit C15, (If it was
released) this is because the date on Exhibit C15 is 7/2/2017. The question
19
then is this, Why did the complainant not call the Permanent Secretary that
was in office at that material time since he would be the officer that in all
probability collected the fund which was directed by the approving authority
to be made payable through the Ag. Perm. Sec. Office of the Deputy Governor.
Failure to call that witness also is a major dent in the attempt of the
complainant to prove the first allegation of misconduct against the Deputy
Governor. We also did not find any evidence of financial misappropriation
against the Deputy Governor either in oral evidence of the 8 witnesses called
by them or Exhibits C8 – C15a. Therefore the allegation of non-retirement of
fund against the Deputy Governor is NOT PROVED.
4.9 The second aspect of this first allegation is the issue of an Audit report-
Exhibits C13-C14. Contrary to the submission of counsel to the complainant in
their address that the constitutional provision that audit report to be sent to
the House of Assembly also includes an extract, we are unable to accept an
extract of an Audit Report without the full Audit Report to determine the fate
of the defendant. Secondly, as we said earlier, CW 5 stated categorically that
he is the Chief Administrative Officer and Accounting Officer of the Deputy
Governor’s office. Therefore, by the same token it is our report that the officer
to answer for budgetary matters in the office of the Deputy Governor is the
Permanent Secretary. For whatever it is worth, even if Exhibit C13-C14 is to be
of any worthy consideration, it will appear that the said exhibits are faulty ab-
initio. This is because CW 6 the Auditor-General admitted under cross-
examination as follows: “I know about Audit query. I issued a query to the
office of the Deputy Governor. By issue (sic) of engagement, I issue to the
office not to a person”.
4.10 To any fair minded person, the query to the office of the Deputy
Governor should be answered by the Accounting Officer of that office which
even the witnesses for the complainant admitted to be the Permanent
Secretary of that office. Therefore it is our impression and conclusion that the
“sins” of the Permanent Secretary in that office, if any, cannot be visited on the
Deputy Governor. We state again for emphasis, that evidence has firmly
established before us, that the Permanent Secretary is the Accounting Officer
in that office and it is to the Office of the Deputy Governor that the audit query
was directed not the Deputy Governor personally/understandably. The officer
20
to answer for the Deputy Governor’s office is the Permanent Secretary in that
office. It is also to be noted that even the alleged query and response are not
before us.
On the whole, therefore on the first allegation, we find this allegation NOT
PROVED.
5.0 ALLEGATION NUMBER 2:
“Deliberate Disdain for Decisions of the Kogi State
Executive Council on Mode of Execution of Contracts
Between the State and 3rd Parties.”
This allegation was abandoned by the Complainant. Though the Deputy
Governor made copious averments in Paragraph 15 (a) – (h) of his deposition
and tendered Exhibits J and K in defence of that allegation, our report is that
since the Complainant did not lead any evidence at all to prove that allegation,
it is abandoned. What is abandoned is not proved. Therefore this allegation is
NOT PROVED.
6.0 ALLEGATION NUMBER 3:
“Abscondment from Office and Abandonment of Official
Duties and Functions.
1. The Deputy Governor, even by his own admission, has
not been in his office or performed any official duties
since about May 2018. He has also not attended any
official functions including the State Executive Council
meetings since then.
2.Apart from a notification dated 19th November, 2018,
signed by one of his aides informing the Executive
Governor of Kogi State of his intention to proceed on
leave from November 26, 2018 to January 26, 2019, there
is no communication whatsoever from the Deputy
21
Governor indicating why he has abandoned his duties
including attendance at his office.
3. Nearly all members can attest to having enquired at His
Excellency's office at one time or the other for the
purpose of official visits or meeting him for joint action on
serious matters of state but have always been informed of
his absence without any explanations.”
6.1 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.
6.2 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. Under cross-examination
by Chief A. A. Adeniyi for the Complainant, the Deputy Governor confirmed
22
that he had verbal approval to proceed on leave and this could not be
discredited. Before we get away from this allegation, it is important to direct
attention to sub-paragraph 3 of the said allegation which we quote as follows:
“Nearly all members can attest to having enquired at His
Excellency's office at one time or the other for the purpose
of official visits or meeting him for joint action on serious
matters of state but have always been informed of his
absence without any explanations.”
No member of the Kogi State House of Assembly testified before us to establish
this assertion and this is fatal.
On the whole, we find this allegation (No 3) NOT PROVED.
7.0 ALLEGATION NUMBER 4:
“4. Scandalisation of Kogi State and her People with
gratuitous, wild and unsubstantiated allegations of
Crimes, Non-Performance, brigandage and financial
impropriety against the Governor, the Government of
Kogi State and officials of Government.
1. On 3rd August, 2019 the Deputy Governor at his
official residence in Lokoja made a press conference
whereat he levied the following allegations:
'This I want to put to the public, and draw the
attention of the Inspector General of Police, the
Director SSS and all law enforcement agents that if
anything happens to me and any member of my
family, my aides or my staff, he (the Governor/
should be held responsible. I want to appeal to law
enforcement agents and the President of the Federal
Republic of Nigeria to beam his light upon Kogi State
because of the level of insecurity that is currently
tearing the State apart, the insecurity in Kogi State
today and the fear of the people of Kogi State is not
23
about armed robbery, it's not even about kidnapping
anymore, it's not about ritual killers, it is about the
gunmen of the Governor who are dangling gun in the
public without being restrained. This has to stop.'
2. On Monday 5th, August, 2019 the Deputy Governor of
Kogi State was at the Abuja Studios of Channels
Television on the widely watched 'Sunrise Daily'
Programme where he made the following statements in
response to questions put to him:
'The State of affairs is not very smooth, it is rough
because of the disposition of the Governor of Kogi State'
' .... Anyone elected to the Office of Governor, Deputy
Governor for whatever position you are elected into you
are expected to deliver on promises, or you are expected
to look at the wellbeing of the people and effect changes,
these changes are not forthcoming in Kogi State and as a
Deputy Governor and as one who has been part of
successive governments, I have tried my best internally to
ensure that the right things are done and for that sake I
am hated, I am denied my right and as a result he wants
me off the earth and that was why in my last press
interview, I cried out to the world and to the law
enforcement agents calling on them to focus on Kogi State
in view of the level of violence being perpetrated by the
sitting Governor of Kogi State. '
'Yes, the communication broke down at a point when it
became very glaring that he was not towing the part of
good governance, one, when you look at, you assess the
government of Yahaya Bello from day one, it has been
fighting, fighting and fighting, anyone that has a different
opinion from his becomes an enemy, anyone that says
anything that is not praise to him, he goes ahead to attack
the person and of course in governance, you must give
room for criticism either good or bad and as a leader, you
learn from criticism ... it was believed by the Governor
24
that civil servants are nobody are of no effect and I said if
they are not useful to us let's take them away and see
how we can function and so salaries of civil servants are
kept away and for your information I have details for 38
Months that is from February this year, the total sum of
money that has come to the coffers of Kogi State that is
Statutory allocation, +excess crude oil and VAT is 132
Billion. The estimated total revenue to the state internally
generated revenue is 51 Billion and money that came to
local governments is 111 Billion when you put all these
together that is 294 Billion now from what the
Government we have put forward as the wage bill that we
met which ls both State and Local Government, you have
5.8 Billion as salaries, now this 5.8 Billion Naira salary, if
you multiply it by the 38 months, what do you have, you
still have 220 Billion as salary and you have 74 billion as
money left, so in this 74 Billion, that is if there is no
screening at all, but with screening they say, they have
saved 1.4 and the total emolument for both state and
local government has fallen to 4.4 so if you multiply that
by 38 Months that is at February this year, that is 167
Billion so if you take this 167 Billion from 294, you still
have 127 Billion. What I have said does not in any way
include Paris club refunds, it does not include the bailout
with statutory allocation, it was convenient for the
Government to pay half the overhead to itself and do
projects, yes.'
'Thank you very much, you will recall that prior the last
election, the eve of the election my security men were
withdrawn by him (Governor) he called them to
Government house and for what reason, why would he
want me to go home without my security men? That is
one. Two is the fact that before now you will recall that
there was importation of Army Uniform, Police Uniform,
25
Military software so to say which was linked to him,
what was he doing with that?
And on the eve of that election, I saw people who are not
policemen who are in police uniform carrying dagger and
all manner of weapons, what is he doing with that? I
called the Commissioner of Police and I drew his attention
to it that I have by my gate here men carrying wearing
police uniform and carrying cutlasses and this is known to
everyone from Kogi State and if he denying that of
importation of those military software let investigation be
carried into it, let us look at the certificate he claimed he
had to bring them in and let a forensic study of that
certificate is carried out, whether at all he had that
certificate before importing them or he got the certificate
at the point of the trouble, you know you can do a
forensic study and know when a paper is issued. I can bet
on that.
'From the role I have played in bringing in some people to
intervene, writing letter in August last year, this year,
talking to some Governors it means I want peace to be
but he has with him his Chief of Staff who wants an
immunity, who wants to take over my office and become
Deputy Governor and that is just the battle, nothing else
and of course everybody in Kogi State know that the Chief
of Staff wields more power than the Governor himself
because he has his convoy so long even with military
men.'
3. On 6th August, 2019 the Deputy Governor of Kogi State
was also on African Independent Television where he
made allegations similar to those he earlier made on the
Channels interview of 5th August 2019 after which he
concluded that the APC Government of Kogi State has
failed.
4. Some of the Deputy Governor’s public comments
during the various interviews impinge directly on the
26
electoral fortunes of key national and state figures
including several members of this Honourable House
whose elections are still sub judice and ought not to be
commented upon in such a prejudicial manner by any
reasonable individual, much less a high-ranking member
of the Government of this state.”
7.1 The allegation above is hinged on copious quotations of/from what is
alleged to be speeches or statements credited to the Deputy Governor on
television and in other media. 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. In this report, we take note of the fact that we are not writing
a judgment in the way that the usual courts of record would do so we may not
be citing decided cases and authorities. However, we are bound to observe, as
said in the beginning of this report, and be guided by the provisions of the
Constitution of the Federal Republic of Nigeria 1999 (as amended) as a quasi-
judicial Panel. See Section 36 of the said Constitution. 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.
7.2 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 reason is simple and it is that
when you quote that a person made a statement in a press conference or on
television, there is a danger of misquoting and the only way or manner of
proving words like this, is to provide or produce the document if it is a press
conference signed by the person being complained against, or the tape or
video image or electronic copy of what the person is said to have uttered. And
27
usually such is subpoenaed from the media house(s) or television
outfits/channels where the person is said to have made appearance to make
such statements. This, the complainants did not do and they had every chance
to so. This is a crucial matter of proof that can never be taken for granted.
7.3 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. We are dealing with a situation in which
such a statement is being used as a means of indictment in order to remove the
Deputy Governor from office. We have to be sure that all the materials are
placed before the Panel in evidence. For this reason therefore, and many more
that we will highlight hereunder, we are not in a position to hold that those
statements are the exact words used by the Deputy Governor in order for this
Panel to indict him.
7.4 Be that as it may, we have examined/considered the evidence proffered
on this allegation and that is the evidence of CW 8, one Kingsley Olorunfemi
Fanwo, and it has to do essentially with facts and figures about money coming
into the state in which the witness is attempting to disagree with facts alleged
to have been given by the Deputy Governor in his statement. It is to be noted
that under cross-examination, by J.S. Okutepa (SAN), the lead counsel for the
Deputy Governor, the witness(that is CW8) admitted that he does not work in
the Accountant-General’s office and that what he came to say were his
findings. He even admitted that he could not fault what the Deputy Governor
said on statutory allocation. He put it as follows: “I did not fault the statutory
allocation.” He also stated as follows under cross- examination: “The Deputy
Governor can speak to the press if his life is threatened “. (See record of
proceedings of 17th September 2019). He admitted that the Deputy Governor
has a duty to expose corruption. He stated further under cross-examination
that he did not know whether the imprest under the Deputy Governor had
been paid. He said further that he went to the television station with
documents that he generated from the Secretary to the State Government. He
also stated that the Deputy Governor’s salary had been paid but that he did not
look out for the signature of the Deputy Governor on such documents to
confirm whether he actually collected such money. He also stated that it was
28
not his duty to forward allocation details to the Kogi State House of Assembly.
(All these are in his evidence under cross-examination in the proceedings of
17th September 2019 in volume 2 of this report.)
7.5 Essentially, therefore, the evidence of the witness is substantially hearsay,
and compared to the evidence of the Deputy Governor deposed to in
paragraph 17 (h) – (m) of his affidavit and the Exhibits RM, RM1, we are unable
to come to a conclusion that the allegation is proved. We also compared the
evidence of CW 8 and the Deputy Governor’s evidence under examination-in-
chief and under cross-examination and we find that the issues are about facts,
figures, events, and happenings which the Deputy Governor is said to have
talked about. CW 8 claimed to have countered those issues. Our impression
and report is that we are unable to hold that the allegation (No 4) has been
proved.
On the whole, the allegation is NOT PROVED.
8.0 ALLEGATION NUMBER 5:
“5. On 19th July, 2019 the Deputy Governor caused his
Lawyers to write a letter of demand to the State
Government demanding amongst other things, unpaid
salaries.
1. He and/or his lawyers caused the said letter to be
widely publicized with the caption that the State
Government was owing the Deputy Governor Salaries and
entitlements.
2. The allegations cannot be substantiated having regard
to the practice and procedure guiding budgeting,
approvals and release of funds guiding Kogi State.
3. That his claims as it regards non-payment 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 Honourable house who also
made efforts to find solutions.”
29
8.1 Our first observation on this issue is that with respect to the letter of the
lawyer to the Deputy Governor, that is, Falana Chambers – Exhibit C1, CW1
stated while she was being led in evidence that she replied the said letter on
behalf of the State Government. No such reply to the lawyer’s letter was put in
evidence before us. Instead, it is Exhibit C2- Letter from the office of the
Secretary of the State Government to the Kogi State House of Assembly and
also Exhibit C2A, letter from the same office to the Speaker of the Kogi State
House of Assembly that are before us. We will return to this observation later
in this report.
8.2 Taking the allegation from the sub-paragraphs one after the other, the
complainant stated that the Deputy Governor and his lawyers caused the
letter to be widely publicised with the caption that the State Government
was owing the Deputy Governor salaries and entitlements. In a matter of this
nature before this Panel, which is sitting as a quasi-judicial Panel, before an
indictment can be considered, there ought to be evidence of that publication of
the letter. But none was placed before us and we cannot assume that such
publication exists. It is when we have that kind of evidence before us that we
can consider whether even that kind of publication on its own will amount to
an indictable or impeachable conduct.
8.3 By Sub-paragraph 2 of allegation No 5 in the notice Exhibit C7, the
complainants state that the allegations cannot be substantiated having regard
to the practice and procedure guiding budgeting approvals and release of
funds. Our opinion and observation on this, is that this is a general and evasive
statement that does not address any critical issue on the claim of the Deputy
Governor that his salaries have not been paid. Again, no practice and
procedure guiding budgeting or approvals and release of funds guiding Kogi
State, was tendered before us for consideration. This is because that statement
presupposes that a document or a guideline exists against which the claim of
the Deputy Governor can and must be tested/verified. But none was placed
before us. This is also not helpful in proving anything against the Deputy
Governor.
8.4 In Sub-paragraph 3 of the allegation of misconduct Exhibit C7, the
complainant states as follows “That his claims as regards non-payment of
salaries is believed to be false upon an objective consideration of the state of
30
the State’s finances hitherto, which is well known to all members of this
Honourable House who also made efforts to find solutions. Our comment,
observation, and opinion on this is that, apart from just a feeble statement that
the claim of the Deputy Governor is false, there is nothing to suggest that the
complainants were asserting positively and categorically that the Deputy
Governor had been paid his salaries. However, the complainants want the
claim of the Deputy Governor to be subjected to objective consideration of the
finances of the State. We must confess that we do not understand what this
phrase is supposed to mean. But we interpret it actually in the context of the
whole paragraph to mean that, the Deputy Governor’s salaries were not paid
because the state has challenges with its finances and that the challenges are
known to the members of the House of Assembly (who incidentally are the
complainants) and that they’ve been making efforts to find solutions. In other
words, we take this as an admission against interest to say that the Deputy
Governor’s salaries have indeed not been paid and he has reason to complain.
Based on the Notice of Misconduct before us, this particular allegation does
not contain anything to show positively that the claims of the Deputy Governor
are not true.
8.5 However, in the observance of provisions for fair hearing, and to hear all
the parties and what they have to put in, the complainants were allowed
before commencement of hearing to bring in additional documents. And the
additional documents are Exhibits C1 to C6 which were tendered by CW 1, and
Exhibits C8- C12 tendered by CW2. By these exhibits, the complainants
attempted to establish that the Deputy Governor was paid his salary contrary
to his claim. However, it was revealed under cross-examination of CW1 and
CW2 by J.S. Okutepa (SAN) that the said Exhibits were mere Schedules of
Payment sent to the banks without cash backing. CW1 admitted under Cross-
examination and stated as follows: “There is a distinction between Schedule of
Payment and Actual payment. Salaries are not paid by cash and when they
are paid by cash, the beneficiary signs... We are not owing any civil servants
any salaries. We have paid them till August.” We observe here that the issue
has to do with the Deputy Governor’s salary who is a political office holder and
not a civil servant. It is also to be noted that Exhibits C8 – C12 tendered by CW2
are also schedules of payment. CW2 under cross-examination (See record of
proceedings of 16th September 2019 Volume 2) admitted that he did not make
31
any direct payments to the Deputy Governor. He also admitted that the
Exhibits are not payment vouchers and as such the Deputy Governor did not
sign the documents. From the evidence of these two witnesses, it cannot be
positively confirmed/asserted that the Deputy Governor’s claims of non-
payment of his salary is false. This is because from the totality of the evidence
as enunciated above, there is a doubt about the payment of salaries to the
Deputy Governor who is claiming that he has not been paid. We resolve this
doubt in favour of the Deputy Governor because the evidence on record is
Schedule of Payment and not evidence of actual payment. CW3 under cross
examination by J.S. Okutepa SAN (See proceedings of 16th September 2019
volume 2) stated as follows on the issue, “Schedule of payment and actual
payment is different. Until payment is made, approval to pay is not
payment.” Further on the claims on the issue of money, personal entitlements
and office running imprest, CW5-The Permanent Secretary in the Deputy
Governor’s office admitted under cross-examination by J.S. Okutepa (SAN)
Deputy Governor’s lead counsel (See proceedings of 16th September 2019
volume 2 of this report) that from February 2018 to date, no money has been
released for the running of the Deputy Governor’s office. He stated as follows
“From February 2018 till date He said security votes are to be given to the
Deputy Governor’s office on monthly basis. From 2018 till date, we have not
received security votes from the office of the Deputy Governor… Security
votes by practice are not subject to government financial rules. Other salaries
yet to be paid to other staff are still outstanding and unpaid. Schedule of
payment does not translate to payment”.
8.7 Putting all the foregoing together, and side by side with the evidence of
the Deputy Governor in his deposition on oath from paragraph 17 (k), (l),
(m)(vi), (m)(vii), (m)(viii), (m)(ix), (m)(x) and also his adoption of the evidence
on oath and cross-examination. And considering the fact that the Deputy
governor wrote Exhibit RP1- a letter to the President of the Federal Republic of
Nigeria dated 6th August 2018, Exhibit RP2- letter to the Vice President of
Nigeria, Exhibit RP3- a letter to the Secretary to the Federal Government,
Exhibit RP4- a letter to the President of Nigeria on the same issue dated 28th of
March, 2019, Exhibit RP5- another letter to the Vice President of Nigeria dated
28th March, 2019, and Exhibit RP6 – a letter to Adams Oshiomole, the National
Chairman of the APC, all these go to show that the Deputy governor
32
complained about non-payment of the salaries of his staff, security allowances,
office running, etc. Interestingly, there is nothing before us to show that the
complainants sent any correspondence to all these personalities to show that
they had paid and that what the Deputy Governor was saying was not true.
Neither was any response sent to the Deputy Governor’s lawyers in the same
vein. With all of this, we are not in a position to state or to conclude that
allegation No 5 has been proved. On the whole, it is our report that allegation
NO 5 on Notice of Misconduct Exhibit C7 is NOT PROVED.
9.0 ALLEGATION 6:
“6. Indictment in Sponsorship of Communal Unrest,
Murder of Constituents and Displacement of Communities
in lyano, Ibaji LGA, Kogi State.
1. The Panel of inquiry set up by the Kogi State
Government to look into the lyano Crisis fingered the
Deputy Governor as a person 'directly or indirectly
involved in the mayhem' which engulfed the
communities.
2. That the Panel's indictment following the unequivocal
testimony of multiple witness accounts, including
traditional rulers from the affected areas and senatorial
district are unbecoming of a person of the Deputy
Governor's position and caliber.”
9.1 This allegation was abandoned by the complainants in that no evidence
was led at all by the complainants for consideration in respect of this
allegation. Therefore same is abandoned. However, the allegation of the
complainants is that there is a report of a Panel that indicted the Deputy
Governor. No such report was placed before us. Instead, the Deputy Governor
in paragraph 17 (m) (xvi) averred categorically that the report, Exhibit RQ
which he tendered does not contain any indictment against the Deputy
Governor.
Consequently, this allegation having been abandoned is NOT PROVED.
33
10.0 CONCLUSION
In line with Section 188(8) of the Constitution of the Federal Republic of Nigeria
1999 (as amended) 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.
Dated this _____ day of _________________, 2019 under the hands of
John Baiyeshea, SAN (Chairman) ………………………….
Hon. Justice S. S. Idajili, (Rtd.) (Member) ………………………….
Barrister U. O. Onoja (Member) ………………………….
Barrister E. I. Omuya (Member) ………………………….
Venerable Z. O. Asun (Member) ………………………….
Engr. Muhammad Ada Shuaibu (Member) ………………………….
Dr. I. Ndagi Adamu (Member) ………………………….
