NAME: OYEWOLE JOSEPH OLABUNMI KAYODE
STATE OF ORIGIN: OSUN
EDUCATION: AUD Primary school, Ijebu ode: 1971-1972, St. Richard's Primary School, Eleiyele, Ibadan: 1973-1976, St.Charles Grammar School, Osogbo: 1976-1981, University of Ife (Now O.A.U), Ile-Ife: 1981-1985, Nigerian Law School: 1985-1986
PROFESSIONAL CAREER: Legal Officer, Public Complaints Commission, Makurdi: 1986-1987, Counsel, Afolabi Adeniran & Co (Legal Practitioners): 1987-1988, Principal Counsel, Olubunmi Oyewole & Co (Legal Practitioners); 1988-2001. Appointed Judge of the High Court of Lagos State: 24th May 2001.
Hobbies: Reading, Gardening and watching sports
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO 33, CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY TE 26TH DAY OF OCTOBER 2009.
SUIT NO: ID/71c/2008
BETWEEN
FEDERAL REPUBLIC OF NIGERIA - COMPLAINANT
AND
1. CHIEF OLABODE GEORGE - DEFENDANT
2. ARCHITECT AMINU DABO - DEFENDANT
3. CAPTAIN O. ABIDOYE - DEFENDANT
4. ALHAJI ABDULAHI AMINU TAFIDA - DEFENDANT
5. ALHAJI ZANNA MAIDARIBE - DEFENDANT
6. ENGR. SULE ALIYU - DEFENDANT
JUDGMENT
Editor’s Note:-
The pages of the judgement in this case containing the charges against the defendants, alone number 40. Accordingly they have been edited. Suffice to state here that the accused faced
7 counts of inflawn of contract to section 22 (3) of the corrupt practices and other related offences Act 2000
1 charge of conspiracy to disobey lawful order contrary to section 577 of the criminal code of Lagos State
49 charges of disobedience to lawful order contrary to section 203 of the criminal code of Lagos State 1994
11 charges of Abuse of office
Trial started immediately thereafter in the course of which 10 witnesses testified for the prosecution while only one witness, the 1st defendant testified for the defence. Prosecution tendered 20 exhibits while the Defence tendered 9 exhibits.
PW1 was Ayoola Elijah Ajala a Chief Superintendent of Police attached to thy Economic and Financial Crimes Commission (hereinafter called EFCC) as investigator.
His evidence in chief was that he was co-opted into the Committee set up by the Federal Government to review the activities of the Nigerian Ports Authority under the chairmanship of the then Executive Chairman of the EFCC, Mallam Nuhu Ribadu. For ease of reference the said Committee shall hereinafter in this judgment be referred to as "the Ridadu Committee".
He outlined the terms of reference of the said Committee and stated that it submitted Its report to the Government which then forwarded it to the EFCC for more detailed investigation but lie however could not participate in the said investigation as he was transferred out of Lagos. lie identified a certified true copy of the report of the said Committee and it was admitted as exhibit P1.
Under cross-examination from the lead counsel for the 1st defendant Mr. Ayanlaja (SAN), he testified that he was not a signatory to exhibit PI and that the defendants were invited by the said Committee.
Since he took no part in the subsequent investigation he could not testify about it but identified minutes of the 11th Board meeting of the NPA and it was admitted as exhibit Dl.
Shown portions of the said exhibit Dl relating to contracts alleged in the charge to have been inflated he stated that no inflation was apparent on the face thereof and would rather leave detailed testimony to the investigators.
He stated that the work of the Ribadu Committee extended beyond the board to the entire NPA and that the 1st defendant appeared before the said committee but he was not part of those who interacted with him personally.
He stated further that to effectively discharge its functions the committee co-opted professionals from various governmental institutions including theEFCC' and he headed the EFCC group.
He was confronted with a certified true copy of the minutes of the 9th board of directors meeting of the NPA and another certified true copy of the minutes of the 11th board of directors meeting of the NPA and they were admitted as exhibits D2 and D3 respectively. From the two exhibits no contract was seen to have originated from the NPA board, no inflation of contracts was apparent; he could not identify any split contract and not being an expert on pricing he could not testify on it.
He listed the contract approval levels identified by him in NPA and Indicated the difference between the board and management levels.
Under further cross-examination from the learned lead counsel for the 2nd defendant, Mr Adesina (SAN) he stated that was not aware of any government white paper on exhibit PI and was equally not aware it was rejected.
To his knowledge no contractor involved in the Counts being tried was interviewed by the Ribadu Committee, and he also knew that the NPA board used a 1999 guideline for the contracts awarded in the period under review but he was not aware of how the 2001 financial guideline was communicated to the NPA.
He stated that he was aware of a price survey unit in the NPA but would not know how it worked. He however insisted that the board of the NPA had a duty to verily every contract before approving it.
Shown exhibits D1 and D2 once again, he observed that the apparent contents thereof cannot be conclusive as indicated from later investigation and that a representative of the supervising Ministry of Transport participated in the board meetings.
Cross-examined further by Mr. Ojo the lead counsel for the 3rd Defendant, he stated that although he was not aware that exhibit PI was adopted by the Federal Government it was referred to the EFCC for further investigation.
He further Slated that the defendants sitting as board members of the NPA had responsibility to approve or reject contracts.
Under Cross-examination from Mr Sanni for the 4th defendant he stated that the 4th defendant was invited by the Ribadu Committee, that to his knowledge none of the defendants benefited from the awarded contracts and that none of the benefiting companies belonged to them.
Mr IJkoh the learned counsel for the 5th defendant adopted previous cross-examinations of other defence counsel while the lead counsel for the 6th defendant Mr Farounbi cross-examined him further and he stated that he never met the 6th defendant before coming to Court to testify and was not aware of his invitation by the Ribadu Committee.
He was shown exhibit D2 but could not explain why other named board Member were not charged along with the defendants.
He reiterated that no contract originated from the board or 6th defendant in particular and that although the contracts were expected to have been vetted by professionals the board still had responsibility to reject or approve any contract placed before it.
He was re-examined by Mr. Hassan the then lead prosecutor and he clarified the circulars board approval levels. He insisted that the board was not bound to approve all contracts recommended to it by the management.
PW2 was Engineer Mustapha Bukar a senior civil servant and one time director of Maritime in the Federal Ministry of Transport.
His evidence in chief was that in October 2003 he served as Chairman of the Administrative Panel set up by the then Minister of Transport to review contracts awarded by the NPA between 2001 and 2003.
In the course of his said assignment, he interacted with the 1st, 2nd and 31st defendants and identified the two government circulars which formed the basis of the review exercise as well as the interim and final reports of his Committee. They were admitted as exhibits P2 to P5 respectively.
He highlighted some of the irregularities noted by his Committee and reflected in its reports.
Cross-examined by Mr Ayanlaja (SAN) for the 1st defendant he stated-mat the? inclusion in his committee of a person who had previously expressly his grievances about activities of the NPA leadership did not affect its objectivity as the committee also noted the incongruity and ensured the said person played no prominent role in its activities.
He denied that his report was rejected but stated that it led to more detailed investigation.
His committee found that no contract originated from the board and although exhibits P2 and P3 came in the course of the life of the NPA board in which defendants served, the circular exhibit P3 was brought to their attention by the Ministry's representative on the board who later testified as PW4 and was not charged along with the defendants.
While he was aware that government parastatals differed in functions and revenue base, he was also aware that NPA generated its own revenue but he knew nothing of the expenditure limit of the NPA board prior to 2001.
He was shown exhibit P5 and stated that he did not come across any contract that was inflated or split at the board level as these took place at lower levels and while not in agreement with the J.K. Randle price report noted that NPA did not use its Internal price intelligence units.
Further cross-examined by Mr Adesina (SAN) for the 2nd defendant his attention was drawn to the portion of exhibit PI referring to government's views about his report but he insisted that his report was not rejected as the terms of reference of the later Ribadu Committee differed from his.
He once again denied being aware of the previous expenditure limit of the NPA board prior to 2001 and stated that the portion of his report exhibit P5 on the subject was based on information received by the Committee.
Shown the received stamp date on exhibit P3, he stated that it was an error.
Under cross-examination from Mr. Ojo for the 3rd defendant, he stated that he did not know if his report exhibit P5 was adopted by the Federal Government and insisted that although there was no NPA stamp on exhibit P3 it w^ deemed received by all those it was addressed to.
He further stated that his committee disagreed with the Randle price report and did not use it.
The learned counsel for the 4th defendant adopted previous cross-examinations by other defence counsel and under cross-examination from Mr. Ukoh for the 5th defendant he denied being aware that his committee was a fall out of the then feud between the I'1 defendant and the then Minister of Transport.
He admitted that his committee did not invite the 5th defendant and he never met him before appearing in court
Under final cross-examination from Mr Farounbi for the 6th defendant he stated that the 6th defendant was also not invited by his committee and he never mot him as well before coming to testify in court. He would not know if any of the; companies which benefited from the contracts belonged to the 6th defendant. and agreed that exhibit P3 emanated from the Ministry of Water Resources where he presently serves and not Transport.
He was not re-examined.
PW3 was Mr Bamanga Bello an operative of the EFCC. His evidence in chief was that he was co-opted into the Ribadu Committee and led the subsequent EFCC investigations based on the two Committees' reports; exhibits PI and P5 in the course of which assignments he interacted with the defendants.
In the course of the investigations he examined various documents including minutes of board meetings of the NPA which revealed that irregular contracts were awarded at the 9th and 11 board meetings of the NPA. To determine foreign exchange values, he contacted the Central Bank of Nigeria and after examining the minutes exhibits Dl, D2 and D3, relating them to the government circulars exhibit P2 and P3 and applying yardsticks for fair pricing adopted by the Ribadu Committee, he came up with schedules of contracts inflated, split or beyond approval levels. He identified the document to which was attached the prevailing rates in 2001 to 2003 obtained from the Central Bank of Nigeria as well as the schedules he made and they were all admitted as exhibits P6 to P9 respectively.
He was shown exhibit PI A and he went through it in details explaining the various entries therein.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he gave his academic qualifications and professional experience.
He explained that contract pricing was handled by a technical sub committee which he was not part of but that the criteria used were standard and not arbitrary.
By stated that his investigations took cognizance of the NPA Act and assumed that from the minutes exhibit D2 the defendants were aware of the financial guideline exhibit P3 and could at the stage it was brought to their notice recall all contracts already awarded at that meeting which were beyond the new approval limits.
He further stated that the defendants admitted knowledge of exhibit P3 in their various extra Judicial statements and that he was aware of the various composition of the NPA board during the period under review as well as the various ports under the NPA.
He was shown exhibits P6, P7 and P8 and he stated that apart from the minutes of meetings, he also saw the contract documents relating thereto and explained certain items said to be split.
He agreed that the minutes showed no resolution splitting contracts as the board approved what was presented by management but insisted the approvals were improper and could have been withheld.
He confirmed that the Nigerian Ports Authority Act, 1999 was used as guidelines and also agreed that the NPA is subject to the Minister of Transport but pointed out that going by exhibit D2 the government guideline in issue was forwarded by the said Minister of Transport. He read relevant portions of the said exhibit D2.
He identified the covering letter of the Secretary of the NPA to which was attached the guidelines said to have prevailed in NPA prior to 2001 and both WOT admitted together as exhibit D4.
He conceded that apart from the minutes of the board meeting he did not see any copy of the letter from the Ministry of Transport conveying exhibit P3 to the NPA and when his attention was drawn to the list of members of the Ribadu Committee stated in exhibit PI, he insisted that he was a co-opted member.
When shown discrepancies in the dates in exhibit PI A vis a vis the minutes of the board meetings, he explained that he was guided by the dates in letters of award of the contracts involved.
He reiterated that contracts were awarded by the defendants at prices far above the fair prices determined by the Ribadu Committee and stated that all the allegations now forming the present charge were put to the 1st defendant and his co defendants when they were interviewed individually.
He conceded that as at 2005 when the Committee sat the 2001 financial guidelines was not being used in the NPA but rejected the suggestion that it was because the 2001 guideline was never received. He was shown a letter from the Managing Director of the NPA confirming the prevailing guideline and It was admitted as exhibit D5.
He listed the various levels in the NPA at which contracts are awarded and the various personalities who were managing directors of the NPA in the years under review but pointed out that all the contracts found to be irregular were awarded at the 9th and 11th board meetings during the tenure of the 2nd defendant.
He agreed with the senior defence counsel that all the contracts involved emanated from the end users and that none originated from the board.
He was shown exhibit D3 and he identified certain items therein as examples of an obviously split contract which the board to which the defendants belonged approved thereby shirking their responsibilities.
He also stated that it was found that the NPA disregarded the in house price intelligence unit and acknowledged that some of the board members involved were not arraigned with the defendant which was outside his purview not being a prosecutor but insisted that the defendants were charged based on their personal roles as board members.
Cross-examined further by Mr Adesina (SAN) for the 2nd defendant he once again listed the various contract awarding levels in the NPA but could not remember off hand the names of all the board members of the NPA in the period under review, he however remembered that the secretaries were invited by the Ribadu Committee. When his attention was drawn to the list of members of members of the board in the said period who were not charged with the defendants, he insisted that the prosecution was not selective.
His attention was then drawn to exhibit D5 and he agreed that in 2005 the pre 2001 expenditure guideline was still being used in NPA well after the -defendants had ceased being members of the board.
He was shown the certified true copy of a letter from the secretary to the NPA staling the functions, powers and procedure of the NPA board and it was admitted as D6.
He stated that part of the documents factored into the price mechanism of the Ribadu Committee was the J.K. Randle report and the certified true copy of
the reaction of the NPA leadership to the said report was admitted as exhibit D7.
Under further cross-examination from Mr. Ojo for the 3rd defendant he stated that the NPA failed to put a due process team in place and that the board had supervisory jurisdiction.
He insisted that the identified item in exhibit D3 was split and that the defendants approved inflated contracts denying once again that prosecution was selective.
When cross-examined by Mr. Sanni for the 4th defendant, he stated that the 4th defendant appeared before his investigation team after PW1 had been transferred out of Lagos.
Learned counsel for the 5th defendant adopted the cross-examinations of the other defence counsel while under cross-examination from Mr Farounbi for the 6 defendant he insisted that the defendants represented the board of the NPA in the period under review.
He stated further that the 6th defendant was invited and appeared before his investigation learn and when shown exhibits D2 and D3 he stated that the board approved recommended prices which were inflated even if it never increased any recommended price.
When re-examined he said that he was co-opted into the Ribadu Committee and participated in the deliberations.
PW4 was Alhaji Wali Masur Kurawa a civil servant who sat on the same board of the NPA with the defendants as ex officio member representing the Ministry of Transport.
His evidence in chief was that he attended one out of the three meetings of the NPA board constituting the 9th Board meeting covered by exhibit D2. At the meeting he attended, he drew the attention of the board to the new approved expenditure guidelines but they refused to comply. He identified exhibit P3 as a copy of the guidelines he drew the defendants* attention to.
He confirmed that the said circular exhibit P3 extends to the NPA but would not know if It had been forwarded to the NPA prior to his bringing it to the board's attention. However as the said circular was meant for immediate implementation he expected that it would had been sent to the Managing Director of the NPA.
He stated that none of the defendants objected at that meeting to the decision not to comply with exhibit P3 and explained that contracts awarded by the NPA board in foreign currency were usually calculated at the Central Bank of Nigeria rate.
Under cross-examination from Mr. Ayanlaja (SAN) for the F1 defendant he was able to recall his invitation and testimony before the Ribadu Committee.
Because he left the NPA in 2004 he was not aware of exhibit D5 but knew that prior to the circular exhibit P3 the approval guideline in NPA was the 1999 guideline which gave N60million ceiling to the board.
He stated that no contract was awarded at the third and last session of the 9th board meeting where he brought up the circular exhibit P3 and now recalled that he attended a previous session of the said 9th board meeting where contracts were awarded.
He stated further that communications between the Minister of Transport and the NPA would either be in writing to the Managing Director or through the Ministry's representative on the board.
He reiterated that he would not know if the circular exhibit P3 had been communicated to the NPA before he did and that prior to that time he too was unaware of its existence.
To his knowledge the board did not inflate or split any contract although board papers were usually delivered late which he complained about.
He agreed that if implemented exhibit P3 could cripple port activities and recommended enhanced limits for the NPA in his testimony before the Ribadu Committee same as the former Minister of Transport, Mr Abiye Sekibo. He identified the minutes of the Ribadu Committee related thereto and it was admitted as exhibit D8.
Under further cross-examination from Mr. Adesina (SAN) he confirmed that decisions of the board were joint but was not conversant with the operations of the departments in NPA.
He staled that no contract originated from the board and that none was awarded at a higher price than recommended by management. He further stated that due to its sensitive nature, NPA needed to be able to take quick decisions.
Further cross-examined by Mr OJo for the 3rd defendant he stated that he was directed to bring up exhibit P3 at the board's meeting when the Minister of Transport noted that NPA was not complying therewith and to make up for the lapse of the planning department in the Ministry which had responsibility for circulating such directives, the Minister then wrote and he circulated.
He insisted that exhibit P3 emanated from appropriate quarters.
Learned counsel for the 4th, 5th and 6th defendants adopted the previous cross-examinations of the other defence counsel.
When re-examined he identified exhibit D5 as the circular stipulating previous approval level but noted that it did not actually contain N60 million limit for the NPA board as he previously stated under cross-examination.
PW5 was Mr Usman Jida Shuwa a civil servant. His evidence in chief was that he Is presently the director of administration in the Ministry of Interior but was the successor of W4 in the Ministry of Transport, He knew all the defendants except the 1st defendant and was a full member of thy Ribadu Committee, and chaired most of the meetings of the said committee in the absence of the substantive Chairman, Mallam Ribadu.
He recounted his wide experience in the Civil Service giving details of various positions previously held by him and identified exhibit D8 as minutes of several meetings of the said Ribadu Committee.
He also gave details of how the circular exhibit P3 emerged and stated that the NPA board failed to comply with it but rather continued to rely on the 1999 guidelines. The findings of his Committee as contained in exhibit PI also Included Inflation and splitting of contracts.
He identified (SKhibit D4 as the 1999 guidelines relied on by the NPA board.
He stated that Ministries were duty bound to convey government circulars to their parastatals which by the content of exhibit D2 was done in respect of exhibit P3 and that issues relating to inflation and splitting of contracts were handled by a technical sub-committee whose report was adopted by the larger Ribadu committee.
He defined what constitutes splitting of contracts in government procurement parlance.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he spelt out the communication channel between the Ministry of Transport and its parastatals and stated that although he saw no letter from the Minister of Transport to the NPA on exhibit P3 he was aware that PW4 brought it to the Defendants’ attention as shown in exhibit D2.
STATE OF ORIGIN: OSUN
EDUCATION: AUD Primary school, Ijebu ode: 1971-1972, St. Richard's Primary School, Eleiyele, Ibadan: 1973-1976, St.Charles Grammar School, Osogbo: 1976-1981, University of Ife (Now O.A.U), Ile-Ife: 1981-1985, Nigerian Law School: 1985-1986
PROFESSIONAL CAREER: Legal Officer, Public Complaints Commission, Makurdi: 1986-1987, Counsel, Afolabi Adeniran & Co (Legal Practitioners): 1987-1988, Principal Counsel, Olubunmi Oyewole & Co (Legal Practitioners); 1988-2001. Appointed Judge of the High Court of Lagos State: 24th May 2001.
Hobbies: Reading, Gardening and watching sports
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT NO 33, CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY TE 26TH DAY OF OCTOBER 2009.
SUIT NO: ID/71c/2008
BETWEEN
FEDERAL REPUBLIC OF NIGERIA - COMPLAINANT
AND
1. CHIEF OLABODE GEORGE - DEFENDANT
2. ARCHITECT AMINU DABO - DEFENDANT
3. CAPTAIN O. ABIDOYE - DEFENDANT
4. ALHAJI ABDULAHI AMINU TAFIDA - DEFENDANT
5. ALHAJI ZANNA MAIDARIBE - DEFENDANT
6. ENGR. SULE ALIYU - DEFENDANT
JUDGMENT
Editor’s Note:-
The pages of the judgement in this case containing the charges against the defendants, alone number 40. Accordingly they have been edited. Suffice to state here that the accused faced
7 counts of inflawn of contract to section 22 (3) of the corrupt practices and other related offences Act 2000
1 charge of conspiracy to disobey lawful order contrary to section 577 of the criminal code of Lagos State
49 charges of disobedience to lawful order contrary to section 203 of the criminal code of Lagos State 1994
11 charges of Abuse of office
Trial started immediately thereafter in the course of which 10 witnesses testified for the prosecution while only one witness, the 1st defendant testified for the defence. Prosecution tendered 20 exhibits while the Defence tendered 9 exhibits.
PW1 was Ayoola Elijah Ajala a Chief Superintendent of Police attached to thy Economic and Financial Crimes Commission (hereinafter called EFCC) as investigator.
His evidence in chief was that he was co-opted into the Committee set up by the Federal Government to review the activities of the Nigerian Ports Authority under the chairmanship of the then Executive Chairman of the EFCC, Mallam Nuhu Ribadu. For ease of reference the said Committee shall hereinafter in this judgment be referred to as "the Ridadu Committee".
He outlined the terms of reference of the said Committee and stated that it submitted Its report to the Government which then forwarded it to the EFCC for more detailed investigation but lie however could not participate in the said investigation as he was transferred out of Lagos. lie identified a certified true copy of the report of the said Committee and it was admitted as exhibit P1.
Under cross-examination from the lead counsel for the 1st defendant Mr. Ayanlaja (SAN), he testified that he was not a signatory to exhibit PI and that the defendants were invited by the said Committee.
Since he took no part in the subsequent investigation he could not testify about it but identified minutes of the 11th Board meeting of the NPA and it was admitted as exhibit Dl.
Shown portions of the said exhibit Dl relating to contracts alleged in the charge to have been inflated he stated that no inflation was apparent on the face thereof and would rather leave detailed testimony to the investigators.
He stated that the work of the Ribadu Committee extended beyond the board to the entire NPA and that the 1st defendant appeared before the said committee but he was not part of those who interacted with him personally.
He stated further that to effectively discharge its functions the committee co-opted professionals from various governmental institutions including theEFCC' and he headed the EFCC group.
He was confronted with a certified true copy of the minutes of the 9th board of directors meeting of the NPA and another certified true copy of the minutes of the 11th board of directors meeting of the NPA and they were admitted as exhibits D2 and D3 respectively. From the two exhibits no contract was seen to have originated from the NPA board, no inflation of contracts was apparent; he could not identify any split contract and not being an expert on pricing he could not testify on it.
He listed the contract approval levels identified by him in NPA and Indicated the difference between the board and management levels.
Under further cross-examination from the learned lead counsel for the 2nd defendant, Mr Adesina (SAN) he stated that was not aware of any government white paper on exhibit PI and was equally not aware it was rejected.
To his knowledge no contractor involved in the Counts being tried was interviewed by the Ribadu Committee, and he also knew that the NPA board used a 1999 guideline for the contracts awarded in the period under review but he was not aware of how the 2001 financial guideline was communicated to the NPA.
He stated that he was aware of a price survey unit in the NPA but would not know how it worked. He however insisted that the board of the NPA had a duty to verily every contract before approving it.
Shown exhibits D1 and D2 once again, he observed that the apparent contents thereof cannot be conclusive as indicated from later investigation and that a representative of the supervising Ministry of Transport participated in the board meetings.
Cross-examined further by Mr. Ojo the lead counsel for the 3rd Defendant, he stated that although he was not aware that exhibit PI was adopted by the Federal Government it was referred to the EFCC for further investigation.
He further Slated that the defendants sitting as board members of the NPA had responsibility to approve or reject contracts.
Under Cross-examination from Mr Sanni for the 4th defendant he stated that the 4th defendant was invited by the Ribadu Committee, that to his knowledge none of the defendants benefited from the awarded contracts and that none of the benefiting companies belonged to them.
Mr IJkoh the learned counsel for the 5th defendant adopted previous cross-examinations of other defence counsel while the lead counsel for the 6th defendant Mr Farounbi cross-examined him further and he stated that he never met the 6th defendant before coming to Court to testify and was not aware of his invitation by the Ribadu Committee.
He was shown exhibit D2 but could not explain why other named board Member were not charged along with the defendants.
He reiterated that no contract originated from the board or 6th defendant in particular and that although the contracts were expected to have been vetted by professionals the board still had responsibility to reject or approve any contract placed before it.
He was re-examined by Mr. Hassan the then lead prosecutor and he clarified the circulars board approval levels. He insisted that the board was not bound to approve all contracts recommended to it by the management.
PW2 was Engineer Mustapha Bukar a senior civil servant and one time director of Maritime in the Federal Ministry of Transport.
His evidence in chief was that in October 2003 he served as Chairman of the Administrative Panel set up by the then Minister of Transport to review contracts awarded by the NPA between 2001 and 2003.
In the course of his said assignment, he interacted with the 1st, 2nd and 31st defendants and identified the two government circulars which formed the basis of the review exercise as well as the interim and final reports of his Committee. They were admitted as exhibits P2 to P5 respectively.
He highlighted some of the irregularities noted by his Committee and reflected in its reports.
Cross-examined by Mr Ayanlaja (SAN) for the 1st defendant he stated-mat the? inclusion in his committee of a person who had previously expressly his grievances about activities of the NPA leadership did not affect its objectivity as the committee also noted the incongruity and ensured the said person played no prominent role in its activities.
He denied that his report was rejected but stated that it led to more detailed investigation.
His committee found that no contract originated from the board and although exhibits P2 and P3 came in the course of the life of the NPA board in which defendants served, the circular exhibit P3 was brought to their attention by the Ministry's representative on the board who later testified as PW4 and was not charged along with the defendants.
While he was aware that government parastatals differed in functions and revenue base, he was also aware that NPA generated its own revenue but he knew nothing of the expenditure limit of the NPA board prior to 2001.
He was shown exhibit P5 and stated that he did not come across any contract that was inflated or split at the board level as these took place at lower levels and while not in agreement with the J.K. Randle price report noted that NPA did not use its Internal price intelligence units.
Further cross-examined by Mr Adesina (SAN) for the 2nd defendant his attention was drawn to the portion of exhibit PI referring to government's views about his report but he insisted that his report was not rejected as the terms of reference of the later Ribadu Committee differed from his.
He once again denied being aware of the previous expenditure limit of the NPA board prior to 2001 and stated that the portion of his report exhibit P5 on the subject was based on information received by the Committee.
Shown the received stamp date on exhibit P3, he stated that it was an error.
Under cross-examination from Mr. Ojo for the 3rd defendant, he stated that he did not know if his report exhibit P5 was adopted by the Federal Government and insisted that although there was no NPA stamp on exhibit P3 it w^ deemed received by all those it was addressed to.
He further stated that his committee disagreed with the Randle price report and did not use it.
The learned counsel for the 4th defendant adopted previous cross-examinations by other defence counsel and under cross-examination from Mr. Ukoh for the 5th defendant he denied being aware that his committee was a fall out of the then feud between the I'1 defendant and the then Minister of Transport.
He admitted that his committee did not invite the 5th defendant and he never met him before appearing in court
Under final cross-examination from Mr Farounbi for the 6th defendant he stated that the 6th defendant was also not invited by his committee and he never mot him as well before coming to testify in court. He would not know if any of the; companies which benefited from the contracts belonged to the 6th defendant. and agreed that exhibit P3 emanated from the Ministry of Water Resources where he presently serves and not Transport.
He was not re-examined.
PW3 was Mr Bamanga Bello an operative of the EFCC. His evidence in chief was that he was co-opted into the Ribadu Committee and led the subsequent EFCC investigations based on the two Committees' reports; exhibits PI and P5 in the course of which assignments he interacted with the defendants.
In the course of the investigations he examined various documents including minutes of board meetings of the NPA which revealed that irregular contracts were awarded at the 9th and 11 board meetings of the NPA. To determine foreign exchange values, he contacted the Central Bank of Nigeria and after examining the minutes exhibits Dl, D2 and D3, relating them to the government circulars exhibit P2 and P3 and applying yardsticks for fair pricing adopted by the Ribadu Committee, he came up with schedules of contracts inflated, split or beyond approval levels. He identified the document to which was attached the prevailing rates in 2001 to 2003 obtained from the Central Bank of Nigeria as well as the schedules he made and they were all admitted as exhibits P6 to P9 respectively.
He was shown exhibit PI A and he went through it in details explaining the various entries therein.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he gave his academic qualifications and professional experience.
He explained that contract pricing was handled by a technical sub committee which he was not part of but that the criteria used were standard and not arbitrary.
By stated that his investigations took cognizance of the NPA Act and assumed that from the minutes exhibit D2 the defendants were aware of the financial guideline exhibit P3 and could at the stage it was brought to their notice recall all contracts already awarded at that meeting which were beyond the new approval limits.
He further stated that the defendants admitted knowledge of exhibit P3 in their various extra Judicial statements and that he was aware of the various composition of the NPA board during the period under review as well as the various ports under the NPA.
He was shown exhibits P6, P7 and P8 and he stated that apart from the minutes of meetings, he also saw the contract documents relating thereto and explained certain items said to be split.
He agreed that the minutes showed no resolution splitting contracts as the board approved what was presented by management but insisted the approvals were improper and could have been withheld.
He confirmed that the Nigerian Ports Authority Act, 1999 was used as guidelines and also agreed that the NPA is subject to the Minister of Transport but pointed out that going by exhibit D2 the government guideline in issue was forwarded by the said Minister of Transport. He read relevant portions of the said exhibit D2.
He identified the covering letter of the Secretary of the NPA to which was attached the guidelines said to have prevailed in NPA prior to 2001 and both WOT admitted together as exhibit D4.
He conceded that apart from the minutes of the board meeting he did not see any copy of the letter from the Ministry of Transport conveying exhibit P3 to the NPA and when his attention was drawn to the list of members of the Ribadu Committee stated in exhibit PI, he insisted that he was a co-opted member.
When shown discrepancies in the dates in exhibit PI A vis a vis the minutes of the board meetings, he explained that he was guided by the dates in letters of award of the contracts involved.
He reiterated that contracts were awarded by the defendants at prices far above the fair prices determined by the Ribadu Committee and stated that all the allegations now forming the present charge were put to the 1st defendant and his co defendants when they were interviewed individually.
He conceded that as at 2005 when the Committee sat the 2001 financial guidelines was not being used in the NPA but rejected the suggestion that it was because the 2001 guideline was never received. He was shown a letter from the Managing Director of the NPA confirming the prevailing guideline and It was admitted as exhibit D5.
He listed the various levels in the NPA at which contracts are awarded and the various personalities who were managing directors of the NPA in the years under review but pointed out that all the contracts found to be irregular were awarded at the 9th and 11th board meetings during the tenure of the 2nd defendant.
He agreed with the senior defence counsel that all the contracts involved emanated from the end users and that none originated from the board.
He was shown exhibit D3 and he identified certain items therein as examples of an obviously split contract which the board to which the defendants belonged approved thereby shirking their responsibilities.
He also stated that it was found that the NPA disregarded the in house price intelligence unit and acknowledged that some of the board members involved were not arraigned with the defendant which was outside his purview not being a prosecutor but insisted that the defendants were charged based on their personal roles as board members.
Cross-examined further by Mr Adesina (SAN) for the 2nd defendant he once again listed the various contract awarding levels in the NPA but could not remember off hand the names of all the board members of the NPA in the period under review, he however remembered that the secretaries were invited by the Ribadu Committee. When his attention was drawn to the list of members of members of the board in the said period who were not charged with the defendants, he insisted that the prosecution was not selective.
His attention was then drawn to exhibit D5 and he agreed that in 2005 the pre 2001 expenditure guideline was still being used in NPA well after the -defendants had ceased being members of the board.
He was shown the certified true copy of a letter from the secretary to the NPA staling the functions, powers and procedure of the NPA board and it was admitted as D6.
He stated that part of the documents factored into the price mechanism of the Ribadu Committee was the J.K. Randle report and the certified true copy of
the reaction of the NPA leadership to the said report was admitted as exhibit D7.
Under further cross-examination from Mr. Ojo for the 3rd defendant he stated that the NPA failed to put a due process team in place and that the board had supervisory jurisdiction.
He insisted that the identified item in exhibit D3 was split and that the defendants approved inflated contracts denying once again that prosecution was selective.
When cross-examined by Mr. Sanni for the 4th defendant, he stated that the 4th defendant appeared before his investigation team after PW1 had been transferred out of Lagos.
Learned counsel for the 5th defendant adopted the cross-examinations of the other defence counsel while under cross-examination from Mr Farounbi for the 6 defendant he insisted that the defendants represented the board of the NPA in the period under review.
He stated further that the 6th defendant was invited and appeared before his investigation learn and when shown exhibits D2 and D3 he stated that the board approved recommended prices which were inflated even if it never increased any recommended price.
When re-examined he said that he was co-opted into the Ribadu Committee and participated in the deliberations.
PW4 was Alhaji Wali Masur Kurawa a civil servant who sat on the same board of the NPA with the defendants as ex officio member representing the Ministry of Transport.
His evidence in chief was that he attended one out of the three meetings of the NPA board constituting the 9th Board meeting covered by exhibit D2. At the meeting he attended, he drew the attention of the board to the new approved expenditure guidelines but they refused to comply. He identified exhibit P3 as a copy of the guidelines he drew the defendants* attention to.
He confirmed that the said circular exhibit P3 extends to the NPA but would not know if It had been forwarded to the NPA prior to his bringing it to the board's attention. However as the said circular was meant for immediate implementation he expected that it would had been sent to the Managing Director of the NPA.
He stated that none of the defendants objected at that meeting to the decision not to comply with exhibit P3 and explained that contracts awarded by the NPA board in foreign currency were usually calculated at the Central Bank of Nigeria rate.
Under cross-examination from Mr. Ayanlaja (SAN) for the F1 defendant he was able to recall his invitation and testimony before the Ribadu Committee.
Because he left the NPA in 2004 he was not aware of exhibit D5 but knew that prior to the circular exhibit P3 the approval guideline in NPA was the 1999 guideline which gave N60million ceiling to the board.
He stated that no contract was awarded at the third and last session of the 9th board meeting where he brought up the circular exhibit P3 and now recalled that he attended a previous session of the said 9th board meeting where contracts were awarded.
He stated further that communications between the Minister of Transport and the NPA would either be in writing to the Managing Director or through the Ministry's representative on the board.
He reiterated that he would not know if the circular exhibit P3 had been communicated to the NPA before he did and that prior to that time he too was unaware of its existence.
To his knowledge the board did not inflate or split any contract although board papers were usually delivered late which he complained about.
He agreed that if implemented exhibit P3 could cripple port activities and recommended enhanced limits for the NPA in his testimony before the Ribadu Committee same as the former Minister of Transport, Mr Abiye Sekibo. He identified the minutes of the Ribadu Committee related thereto and it was admitted as exhibit D8.
Under further cross-examination from Mr. Adesina (SAN) he confirmed that decisions of the board were joint but was not conversant with the operations of the departments in NPA.
He staled that no contract originated from the board and that none was awarded at a higher price than recommended by management. He further stated that due to its sensitive nature, NPA needed to be able to take quick decisions.
Further cross-examined by Mr OJo for the 3rd defendant he stated that he was directed to bring up exhibit P3 at the board's meeting when the Minister of Transport noted that NPA was not complying therewith and to make up for the lapse of the planning department in the Ministry which had responsibility for circulating such directives, the Minister then wrote and he circulated.
He insisted that exhibit P3 emanated from appropriate quarters.
Learned counsel for the 4th, 5th and 6th defendants adopted the previous cross-examinations of the other defence counsel.
When re-examined he identified exhibit D5 as the circular stipulating previous approval level but noted that it did not actually contain N60 million limit for the NPA board as he previously stated under cross-examination.
PW5 was Mr Usman Jida Shuwa a civil servant. His evidence in chief was that he Is presently the director of administration in the Ministry of Interior but was the successor of W4 in the Ministry of Transport, He knew all the defendants except the 1st defendant and was a full member of thy Ribadu Committee, and chaired most of the meetings of the said committee in the absence of the substantive Chairman, Mallam Ribadu.
He recounted his wide experience in the Civil Service giving details of various positions previously held by him and identified exhibit D8 as minutes of several meetings of the said Ribadu Committee.
He also gave details of how the circular exhibit P3 emerged and stated that the NPA board failed to comply with it but rather continued to rely on the 1999 guidelines. The findings of his Committee as contained in exhibit PI also Included Inflation and splitting of contracts.
He identified (SKhibit D4 as the 1999 guidelines relied on by the NPA board.
He stated that Ministries were duty bound to convey government circulars to their parastatals which by the content of exhibit D2 was done in respect of exhibit P3 and that issues relating to inflation and splitting of contracts were handled by a technical sub-committee whose report was adopted by the larger Ribadu committee.
He defined what constitutes splitting of contracts in government procurement parlance.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he spelt out the communication channel between the Ministry of Transport and its parastatals and stated that although he saw no letter from the Minister of Transport to the NPA on exhibit P3 he was aware that PW4 brought it to the Defendants’ attention as shown in exhibit D2.
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He was sure that prior to exhibit P3 the financial guideline was not exhibit D4 as according to him no Minister had powers to unilaterally stipulate financial guideline for parastatals under him and produced the Government financial guidelines which preceded exhibit P3 and it was admitted as exhibit D9.
He confirmed that no contract emanated from the board but contended that the board was not bound to approve all recommendations made to it. He admitted not being part of the Ministry of Transport during the period under review but could not ascertain whether exhibit D9 was shown to the defendants or PW4 by his committee even when shown the minutes of the proceedings of that Committee exhibit D8 and was not aware of any disciplinary measures taken against the signatory to exhibit D4 for writing the said letter.
His attention was drawn to the views of the then Minister of Transport that the implementation of exhibit P3 would ground the ports and in reaction thereto he stated that while this could be so, the right procedure was to bring the situation to the President's attention for a waiver to be granted.
He stated further that his knowledge of the contracts involved emanated from the evidence presented to his Committee and was sure that defendants were confronted with allegations of contract splitting and inflation which they all denied.
Under further cross-examination from Mr. Adesina (SAN) for the 2nd Defendant he stated that exhibit P3 was meant for all government ministries and parastatals including NPA and that none can claim exemption and further that after being made aware of exhibit P3 the defendants continued to award contracts in disregard thereof.
He willed that he was posted to the Ministry of Transport in 2005 as Maritime Director but he never sat on the board of NPA as the board was not constituted during his tenure.
He was shown exhibit pi and confirmed that it did not contain names of contractor's involved in the Counts being tried and when shown exhibit D9 he also confirmed that the certification thereon was made by the EFCC but insisted that all Government Ministries and Parastatals got the said exhibit D9.
He stated that he did not sign exhibit PI as Chairman since Mallam Nuhu Ribadu was the appointed Chairman and agreed with the learned senior counsel that exhibit D4 preceded the defendants' membership of the NPA board and that exhibit D6 written by the Legal Adviser to the NPA conforms with exhibit D4 which the defendants said they complied with.
Further cross-examined by Mr Ojo for the 3rd defendant he stated that he did not know if exhibit PI was adopted by the Federal Executive Council.
He insisted that the board members of the NPA had responsibility to ensure that only proper contracts were approved and to also direct management in appropriate circumstances.
He said that while serving as Director of Maritime Services in the Ministry of Transport exhibit D4 was never brought to his attention and denied the suggestion that exhibit D9 was prepared for the purposes of this trial insisting [t was a genuine government circular.
Mr, Sanni for the 4th defendant adopted the previous cross-examinations of the other defence counsel while he was cross-examined by Mr. Ukoh for the 5th defendants and he stated that government circulars on the face thereof never state the law enabling them.
Under cross-examination from Mr Farounbi for the 6th defendant he stated that only the 1st and 2nd defendants appeared before his Committee but he did not know the capacity in which the defendants were charged and was not aware of any other instance where anyone other than PW4 brought exhibit P3 to the attention of the defendants.
When re-examined by the learned prosecutor he stated that exhibit D9 was the appropriate operating financial guideline before exhibit P3 and not exhibit D4 which had no legal mandate,
PW6 was Mr Olanrewaju Yusuf Olaleye a quantity surveyor and civil servant in the Federal Ministry of Works, Housing and Urban Development.
His evidence in chief was that he has about 18 years professional experience and initially served as a pioneer consultant to the Budget Monitoring and Price Intelligence Unit located in the Presidency otherwise called the Due Process Office before he was later absorbed into the Federal Civil Service.
He was a member of the Ribadu Committee and chaired the technical sub-committee which handled the issue of pricing of contracts for which exercise he co-opted relevant professionals from various governmental bodies related to NPA activities.
His technical sub-committee inspected all available contract records painstakingly and physically inspected various project sites where possible. Prices were determined using acceptable industry standards and at the end of the exercise they found some of the contract prices fair, some high and some indeterminable due to absence of documents. They also found incidents of splitting and inflation of contracts.
in line with standard professional practice, their findings were initially made across to the defendants and others affected for them to have the opportunity to respond and possibly provide justifying documents. They obtained responses from some of the past Managing directors and these responses were reflected in the final report but none of the board members responded.
He identified exhibit PI A as the findings of his Committee any explained how fair price of the contracts involved were determined emphasizing that his Committee was thorough and fair.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he denied being aware of any price intelligence unit in the NPA and did not personally ask about it. He also did not personally question the defendants when they appeal'o4 before the Committee as he was busy at the premises of the NPA with the activities of his technical sub-commute but he attended meetings of the main committee.
Despite the enormity of the necessary expenditure profile of the NPA which could be striped with the implementation of exhibit; P3 he still felt the proper thing was to obtain presidential waiver instead of willful disobedience.
He stated that he found mat all contracts approved by the defendants originated from the user departments which did not include board members and that the board minutes did not reflect resolutions to split or inflate contracts but that the approvals made were irregular for failing to comply with government guidelines.
He stated further that due to the absence of resident due process teams in the NPA, it was impossible for him to identify the stage in the process when contracts splitting and inflation occurred but that the approvals by the defendants were not disputed.
He did not agree that the "NPA was not covered by exhibits P2 and P3 and insisted that as directed by exhibit P2, the NPA board as final authority ought to have set up due process teams different from appraisal officers in use in NPA,
He further insisted that the defendants were afforded right of reply to the report of his technical sub-committee but failed to utilize it unlike past Managing Directors and Managers who exploited the opportunity.
He was of the view that PW4 was not a full member of the NPA board as he only represented the Ministry of Transport and when shown exhibit D9, the minutes of some of his Committee meetings he conceded that the only issue put lo the 1st defendant was about approval beyond limit but he was resolute that a review of the minutes of the relevant NPA board meetings in question will reveal splitting of contracts.
He said that the term 'split of contracts' as shown in exhibits P2 and P3 had special meaning in procurement and that the defendants were notified in that sense but could not say whether exhibit P2 was received in the NPA. He specifically referred to pages 75 and 78 of exhibit D2 as example of a split contract which the defendants wrongly approved.
He stated that his committee was concerned about the entire approving and awarding authorities in the NPA which included the defendants and that the absence of due process teams allowed the prevalence of arbitrariness in the NPA although no appraisal officer confessed such to him.
He explained that before any contract could be approved by the Federal Executive- Council it would be accompanied by a due process certificate unlike what obtained in the NPA board in which the defendants served.
He stated that he never personally met or interviewed PW4 as he interacted with some appraisal officers but was aware he represented the Ministry of Transport on the NPA board. He insisted that price determinants are standard and once again explained how fair prices in this instance were arrived at. He agreed with the learned senior counsel that knowledge of exhibits P2 and P3 was crucial to compliance therewith.
Further cross-examined by Mr. Adesina for the 2nd defendant he pointed out that only the presidency had a due process department and that what NPA did not have in place was a due process team comprising relevant professionals. He further stated that all contracts ought to have a due process certificate but agreed that this was not indicated in exhibit PI, the committee's report.
He maintained that he actively compiled exhibit PI A with his committee members and that he is a pioneer consultant on due process in the country.
He said that his price evaluation included cost of training and when his attention was drawn to exhibits D2 and D3 concerning contracts mentioned in Counts 1-7 whose awarded prices included cost of staff training, he agreed that it would affect the final price.
He also agreed that contracts awarded by the defendants were done at below contractor quotes and that none of the defendants worked as appraisal officers in NPA.
Concerning appropriate foreign exchange rates, he stated that he relied on exhibit P9 despite the date on the covering letter thereof but agreed that contractors were not bound to source their foreign currency needs from the Central Bank of Nigeria.
Shown exhibit P1 he conceded that none of the contractors involved in the counts being tried was interviewed by his Committee but however explained that this was deliberate to avoid possibility of prejudice.
He stated that he sent out his subordinates to find out prices from manufacturers representatives and agents locally and was well aware of the disagreements with the J.K. Randle prices but that his Committee only relied on some other aspects of the said report other than pricing.
When asked about the other publications and documents relied on for pricing guidance, he responded that they were not in court and could not recall their names in full offhand.
Under additional cross-examination from Mr. Ojo for the 3rd defendant, he stated that the defendants were concerned with contract approvals after their subordinates must have completed the preliminary stages. He maintained his earlier definition of contract splitting and insisted that the defendant approved split contracts even if from exhibits D2 and D3 they did not pass any resolution to split contracts.
Learned counsel for the 4th and 5th defendants adopted the previous cross-examinations of the other defence counsel while under more cross-examination from Mr Farounbi for the 6th defendant he stated that no single contract approved by the defendants had due process certification and that notwithstanding the content of exhibit PI, PW4 was not a full member of the board 4th he only represented the Ministry of Transport-He agreed with the learned counsel that his sub-committee solely handled technical issues.
When re-examined by learned lead prosecutor, he stated that what guided his committee on foreign exchange was the attachment to exhibit P9 and not the covering letter.
PW7 was Mr Azuonye Okorocha a staff of the Central Bank of Nigeria. His evidence in chief was that his office received a letter from the EFCC asking for the prevailing foreign exchange rates from 2001 to 2003 and the said information was supplied.
He identified exhibit P9 as the letter signed by him for the Central Bank of Nigeria and that the attachment thereto represented the requested rates for 2001 to 2003 which is system generated and unalterable.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he stated that foreign exchange rates are determined on daily basis while the attachment to exhibit P9 does not reflect daily entries.
Under further cross-examination from Mr. Adesina (SAN) for the 2nd defendant he read the attachment to exhibit P9 showing monthly rates.
Learned counsel for the remaining defendants adopted the cross-examination already made and he was not re-examined.
PW8 was Mr Sanusi Mohammed an operative of the EFCC. His evidence in chief was that he got to know the defendants through his Involvement in the investigation of this case in the course of which he supervised thy extra judicial statements made to the EFCC by the 3rd, 4th, 5th and 6th defendants.
He identified the said statements and they were admired as exhibits P10, P11, P12 and P13 respectively.
Cross-examination for the 1st defendant he stated that his only role was supervising the statements he tendered. Other defence counsel adopted the cross-examination made for the 1st defendant and he was not re-examined.
PW9 was Mr. Temilu Alkali also an operative of the EFCC. His evidence in chief was that he knew the defendants during the investigation Of this case and personally interviewed the 1st and 2nd defendants when they made statements to the EFCC. He identified the statements made by the 1st defendant and they were admitted as exhibits PI 4 to PI 8 respectively.
Under cross-examination for the I'1 defendant he insisted that by was present and supervised the making of exhibit P14 by the 1st defendant in Abuja and also witnessed the remaining ones in Lagos. He stated that his only role was in supervising the making of the statements in question.
He was not cross-examined by the remaining defence Counsel and was also not re-examined.
PW10 was Mr. Ibrahim Shetima an engineer with the Nigerian Maritime Administration and Safety Agency otherwise called NIMASA. His evidence in chief that he was co-opted into technical sub-committee of the Ribadu Committee under the leadership of PW6 which dealt with issues of contract splitting and inflation. He saw documents relating to the contracts involved and as an electrical Engineer visited most of the sites physically and .also for price Verification visited manufacturers, manufacturer's representatives, agents and in some cases checked the internet.
He identified exhibit PI A as the findings of his sub-committee and pointed out item 18 thereon as an instance of split contract and item 4 as inflated contract arid explained how he came to the conclusion,
Under cross-examination for the 1st defendant he stated that he was not aware of the professional leaning of the 5th defendant and never knew there was any engineer on the board of NPA.
He agw4 that the contracts in question originated from end users and also agreed that what he saw on the internet was the price situation as at 2005 which Would not contain maintenance and training costs factored in for many of the contracts in issue.
He stated that in 2005 he had about 3 years experience in procurement and that the contract documents relied on by him were available but not produced in court.
Ho further stated that the total yardstick for assessing the contract prices was provided by PW6 and that he personally visited the site of agenda item 13 of exhibit D2 with PW3.
He agreed that he was not the sole electrical engineer in the committee and did not work with exhibit D2 or any minutes or document prepared by the board but instead used the bill of quantities and contract award papers.
Further crossexamination for the 2nd defendant he stated that he did not know the capacity in which the defendants were charged or whether they were also NPA contractors. He instead that his task in the committee included verification of prices.
Cross-examined further for the 3rd defendant he agreed that appraisal officers in NPA fixed prices and not the board.
Learned counsel for the 4th and 5th defendants adopted previous cross-examinations of the other counsel and in answer to the additional cross-examination for the 6th defendant he stated that the inflation of item 4 in exhibit P1A Is included in the report and that he was not aware of the prices approved by the board.
When re-examined he stated that he limited his search on the internet to prices and did not consider staff training and maintenance.
With the consent of all defence counsel PW3 was recalled by the prosecution and he tendered the extra judicial statements made to the EFCC by the 2nd defendant and they were admitted as exhibits P19 and P20 respectively.
He was not cross-examined by all the defence counsel and with his evidence this prosecution closed its case.
The defence opted to call evidence and the 1st defendant testified from the witness box as the sole defence witness.
He is Chief Olabode George an engineer and company director who described himself as a politician by vocation.
In his evidence in chief he traced his academic background and professional experience in the Nigerian Navy until his retirement and his political career in civil life afterwards.
From 2001 to 2003 he was the Chairman of the Board of directors of the NPA and the other defendants were some of the director who served with him on this said board. He listed those who served as lumbers of his board including PW4 Who were however left out of the present trial by the prosecution.
Oh being inaugurated they were briefed by the secretary of the board who gave them the enabling Act, standing orders of the board and, the approved expenditure limits. His perusal of the said enabling Act made it clear to him that the sole authority representing the government to which the board was answerable was the Minister of Transport. Using exhibit D4 as example he pointed out that the standard communication between the Minister of Transport and the NPA is through the Managing Director of the NPA.
He stated that he understood the counts dealing with alleged splitting of contracts and denied he or the board he was pan of, ever doing so. He used agenda 12 of exhibit D2 as an example to show how contracts were presented to the board by the executive director in charge of the user department with a recommendation based on the appraised price and eventually the resolution to award without splitting coming into the discussion.
He similarly denied the counts dealing with alleged inflation of contracts stating emphatically that no such act was undertaken by the board over which he presided as they never added to any recommended price.
He explained the functions of appraisal officers within the NPA stating that they had responsibilities for issues relating to consideration of quotations and recommendation of prices of items presented to the board for approval, the board had no responsibility to determine fair prices and only worked with recommended prices of management.
On allegations of awarding contracts beyond approval limits he stated once again that he understood the counts and explained what constituted the approval limits of the various contract awarding levels in the NPA based on the guidelines given to them on assumption of office and which still operated till date.
According to him, the responsibility for setting approval limits rested with the Minister of Transport in consultation with the President and that due to its commercial and sensitive nature, subject to the directives of the Minister, NPA had financial autonomy.
He was shown exhibit P3 arid he was emphatic that it was not the approval limit he received from the Minister of Transport and that he and the other defendants never got the said document whilst in office and never acknowledged receiving it. When PW4 brought a copy of the said circular to their attention, they felt it was irregular not having been forwarded under the hands of the Minister of Transport to the Managing Director and that it was administrative since it was signed by the Finance Minister.
When referred to the portion of exhibit D2, the board minutes where exhibit P3 was discussed, he stated that the said portion of the minutes was incorrect and gave his own version of what transpired at the said meeting.
He stated that no contract was awarded at the meeting where exhibit P3 was circulated and discussed and no response was received to their letter to the Minister of Transport on the said exhibit P3 asking for clarifications as implementation would have crippled the NPA considering its complex nature and the highly intensive expenditure profile.
He explained steps taken by the board to secure mobilization fees approved on contracts and denied ever receiving exhibit P2. He also denied any conspiracy to disobey lawful instructions as alleged.
Under cross-examination for the 2nd defendant he explained the complex and international implications of the operations of the NPA and the expected role of the board under the NPA Act.
He gave the names of other members of the board who were left out of the charge by the prosecution including PW4 who according to him never objected to any of their decisions.
He was shown exhibit P3 and he pointed out that it has the stamp of the Federal Ministry of Water Resources insisting that the 2nd defendant never received any such document to his knowledge. He further stated that no other contract was approved after exhibit P3 was received and discussed and that exhibit D4 which they relied on came from the Minister of Transport and preceded the appointment of all the defendants to the NPA board and also conformed with exhibit D6 the brief from the legal adviser of the board and exhibit D5 which was still in use in NPA as at 2008.
He stated that the board did not confer a unilateral approval limit on itself and that the reasons adduced for not complying with exhibit P3 were genuine.
He denied all the counts and insisted that the board in which all the defendants served never inflated nor split any contract as alleged and made copious references to the minutes.
Further cross-examined for the 3rd defendant he explained the processes a contract would have passed through from the user department before getting to the board for approval asserting that the board did not appraise prices and never engaged in contract splitting or inflation.
He was sure that prior to exhibit P3 the financial guideline was not exhibit D4 as according to him no Minister had powers to unilaterally stipulate financial guideline for parastatals under him and produced the Government financial guidelines which preceded exhibit P3 and it was admitted as exhibit D9.
He confirmed that no contract emanated from the board but contended that the board was not bound to approve all recommendations made to it. He admitted not being part of the Ministry of Transport during the period under review but could not ascertain whether exhibit D9 was shown to the defendants or PW4 by his committee even when shown the minutes of the proceedings of that Committee exhibit D8 and was not aware of any disciplinary measures taken against the signatory to exhibit D4 for writing the said letter.
His attention was drawn to the views of the then Minister of Transport that the implementation of exhibit P3 would ground the ports and in reaction thereto he stated that while this could be so, the right procedure was to bring the situation to the President's attention for a waiver to be granted.
He stated further that his knowledge of the contracts involved emanated from the evidence presented to his Committee and was sure that defendants were confronted with allegations of contract splitting and inflation which they all denied.
Under further cross-examination from Mr. Adesina (SAN) for the 2nd Defendant he stated that exhibit P3 was meant for all government ministries and parastatals including NPA and that none can claim exemption and further that after being made aware of exhibit P3 the defendants continued to award contracts in disregard thereof.
He willed that he was posted to the Ministry of Transport in 2005 as Maritime Director but he never sat on the board of NPA as the board was not constituted during his tenure.
He was shown exhibit pi and confirmed that it did not contain names of contractor's involved in the Counts being tried and when shown exhibit D9 he also confirmed that the certification thereon was made by the EFCC but insisted that all Government Ministries and Parastatals got the said exhibit D9.
He stated that he did not sign exhibit PI as Chairman since Mallam Nuhu Ribadu was the appointed Chairman and agreed with the learned senior counsel that exhibit D4 preceded the defendants' membership of the NPA board and that exhibit D6 written by the Legal Adviser to the NPA conforms with exhibit D4 which the defendants said they complied with.
Further cross-examined by Mr Ojo for the 3rd defendant he stated that he did not know if exhibit PI was adopted by the Federal Executive Council.
He insisted that the board members of the NPA had responsibility to ensure that only proper contracts were approved and to also direct management in appropriate circumstances.
He said that while serving as Director of Maritime Services in the Ministry of Transport exhibit D4 was never brought to his attention and denied the suggestion that exhibit D9 was prepared for the purposes of this trial insisting [t was a genuine government circular.
Mr, Sanni for the 4th defendant adopted the previous cross-examinations of the other defence counsel while he was cross-examined by Mr. Ukoh for the 5th defendants and he stated that government circulars on the face thereof never state the law enabling them.
Under cross-examination from Mr Farounbi for the 6th defendant he stated that only the 1st and 2nd defendants appeared before his Committee but he did not know the capacity in which the defendants were charged and was not aware of any other instance where anyone other than PW4 brought exhibit P3 to the attention of the defendants.
When re-examined by the learned prosecutor he stated that exhibit D9 was the appropriate operating financial guideline before exhibit P3 and not exhibit D4 which had no legal mandate,
PW6 was Mr Olanrewaju Yusuf Olaleye a quantity surveyor and civil servant in the Federal Ministry of Works, Housing and Urban Development.
His evidence in chief was that he has about 18 years professional experience and initially served as a pioneer consultant to the Budget Monitoring and Price Intelligence Unit located in the Presidency otherwise called the Due Process Office before he was later absorbed into the Federal Civil Service.
He was a member of the Ribadu Committee and chaired the technical sub-committee which handled the issue of pricing of contracts for which exercise he co-opted relevant professionals from various governmental bodies related to NPA activities.
His technical sub-committee inspected all available contract records painstakingly and physically inspected various project sites where possible. Prices were determined using acceptable industry standards and at the end of the exercise they found some of the contract prices fair, some high and some indeterminable due to absence of documents. They also found incidents of splitting and inflation of contracts.
in line with standard professional practice, their findings were initially made across to the defendants and others affected for them to have the opportunity to respond and possibly provide justifying documents. They obtained responses from some of the past Managing directors and these responses were reflected in the final report but none of the board members responded.
He identified exhibit PI A as the findings of his Committee any explained how fair price of the contracts involved were determined emphasizing that his Committee was thorough and fair.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he denied being aware of any price intelligence unit in the NPA and did not personally ask about it. He also did not personally question the defendants when they appeal'o4 before the Committee as he was busy at the premises of the NPA with the activities of his technical sub-commute but he attended meetings of the main committee.
Despite the enormity of the necessary expenditure profile of the NPA which could be striped with the implementation of exhibit; P3 he still felt the proper thing was to obtain presidential waiver instead of willful disobedience.
He stated that he found mat all contracts approved by the defendants originated from the user departments which did not include board members and that the board minutes did not reflect resolutions to split or inflate contracts but that the approvals made were irregular for failing to comply with government guidelines.
He stated further that due to the absence of resident due process teams in the NPA, it was impossible for him to identify the stage in the process when contracts splitting and inflation occurred but that the approvals by the defendants were not disputed.
He did not agree that the "NPA was not covered by exhibits P2 and P3 and insisted that as directed by exhibit P2, the NPA board as final authority ought to have set up due process teams different from appraisal officers in use in NPA,
He further insisted that the defendants were afforded right of reply to the report of his technical sub-committee but failed to utilize it unlike past Managing Directors and Managers who exploited the opportunity.
He was of the view that PW4 was not a full member of the NPA board as he only represented the Ministry of Transport and when shown exhibit D9, the minutes of some of his Committee meetings he conceded that the only issue put lo the 1st defendant was about approval beyond limit but he was resolute that a review of the minutes of the relevant NPA board meetings in question will reveal splitting of contracts.
He said that the term 'split of contracts' as shown in exhibits P2 and P3 had special meaning in procurement and that the defendants were notified in that sense but could not say whether exhibit P2 was received in the NPA. He specifically referred to pages 75 and 78 of exhibit D2 as example of a split contract which the defendants wrongly approved.
He stated that his committee was concerned about the entire approving and awarding authorities in the NPA which included the defendants and that the absence of due process teams allowed the prevalence of arbitrariness in the NPA although no appraisal officer confessed such to him.
He explained that before any contract could be approved by the Federal Executive- Council it would be accompanied by a due process certificate unlike what obtained in the NPA board in which the defendants served.
He stated that he never personally met or interviewed PW4 as he interacted with some appraisal officers but was aware he represented the Ministry of Transport on the NPA board. He insisted that price determinants are standard and once again explained how fair prices in this instance were arrived at. He agreed with the learned senior counsel that knowledge of exhibits P2 and P3 was crucial to compliance therewith.
Further cross-examined by Mr. Adesina for the 2nd defendant he pointed out that only the presidency had a due process department and that what NPA did not have in place was a due process team comprising relevant professionals. He further stated that all contracts ought to have a due process certificate but agreed that this was not indicated in exhibit PI, the committee's report.
He maintained that he actively compiled exhibit PI A with his committee members and that he is a pioneer consultant on due process in the country.
He said that his price evaluation included cost of training and when his attention was drawn to exhibits D2 and D3 concerning contracts mentioned in Counts 1-7 whose awarded prices included cost of staff training, he agreed that it would affect the final price.
He also agreed that contracts awarded by the defendants were done at below contractor quotes and that none of the defendants worked as appraisal officers in NPA.
Concerning appropriate foreign exchange rates, he stated that he relied on exhibit P9 despite the date on the covering letter thereof but agreed that contractors were not bound to source their foreign currency needs from the Central Bank of Nigeria.
Shown exhibit P1 he conceded that none of the contractors involved in the counts being tried was interviewed by his Committee but however explained that this was deliberate to avoid possibility of prejudice.
He stated that he sent out his subordinates to find out prices from manufacturers representatives and agents locally and was well aware of the disagreements with the J.K. Randle prices but that his Committee only relied on some other aspects of the said report other than pricing.
When asked about the other publications and documents relied on for pricing guidance, he responded that they were not in court and could not recall their names in full offhand.
Under additional cross-examination from Mr. Ojo for the 3rd defendant, he stated that the defendants were concerned with contract approvals after their subordinates must have completed the preliminary stages. He maintained his earlier definition of contract splitting and insisted that the defendant approved split contracts even if from exhibits D2 and D3 they did not pass any resolution to split contracts.
Learned counsel for the 4th and 5th defendants adopted the previous cross-examinations of the other defence counsel while under more cross-examination from Mr Farounbi for the 6th defendant he stated that no single contract approved by the defendants had due process certification and that notwithstanding the content of exhibit PI, PW4 was not a full member of the board 4th he only represented the Ministry of Transport-He agreed with the learned counsel that his sub-committee solely handled technical issues.
When re-examined by learned lead prosecutor, he stated that what guided his committee on foreign exchange was the attachment to exhibit P9 and not the covering letter.
PW7 was Mr Azuonye Okorocha a staff of the Central Bank of Nigeria. His evidence in chief was that his office received a letter from the EFCC asking for the prevailing foreign exchange rates from 2001 to 2003 and the said information was supplied.
He identified exhibit P9 as the letter signed by him for the Central Bank of Nigeria and that the attachment thereto represented the requested rates for 2001 to 2003 which is system generated and unalterable.
Under cross-examination from Mr. Ayanlaja (SAN) for the 1st defendant he stated that foreign exchange rates are determined on daily basis while the attachment to exhibit P9 does not reflect daily entries.
Under further cross-examination from Mr. Adesina (SAN) for the 2nd defendant he read the attachment to exhibit P9 showing monthly rates.
Learned counsel for the remaining defendants adopted the cross-examination already made and he was not re-examined.
PW8 was Mr Sanusi Mohammed an operative of the EFCC. His evidence in chief was that he got to know the defendants through his Involvement in the investigation of this case in the course of which he supervised thy extra judicial statements made to the EFCC by the 3rd, 4th, 5th and 6th defendants.
He identified the said statements and they were admired as exhibits P10, P11, P12 and P13 respectively.
Cross-examination for the 1st defendant he stated that his only role was supervising the statements he tendered. Other defence counsel adopted the cross-examination made for the 1st defendant and he was not re-examined.
PW9 was Mr. Temilu Alkali also an operative of the EFCC. His evidence in chief was that he knew the defendants during the investigation Of this case and personally interviewed the 1st and 2nd defendants when they made statements to the EFCC. He identified the statements made by the 1st defendant and they were admitted as exhibits PI 4 to PI 8 respectively.
Under cross-examination for the I'1 defendant he insisted that by was present and supervised the making of exhibit P14 by the 1st defendant in Abuja and also witnessed the remaining ones in Lagos. He stated that his only role was in supervising the making of the statements in question.
He was not cross-examined by the remaining defence Counsel and was also not re-examined.
PW10 was Mr. Ibrahim Shetima an engineer with the Nigerian Maritime Administration and Safety Agency otherwise called NIMASA. His evidence in chief that he was co-opted into technical sub-committee of the Ribadu Committee under the leadership of PW6 which dealt with issues of contract splitting and inflation. He saw documents relating to the contracts involved and as an electrical Engineer visited most of the sites physically and .also for price Verification visited manufacturers, manufacturer's representatives, agents and in some cases checked the internet.
He identified exhibit PI A as the findings of his sub-committee and pointed out item 18 thereon as an instance of split contract and item 4 as inflated contract arid explained how he came to the conclusion,
Under cross-examination for the 1st defendant he stated that he was not aware of the professional leaning of the 5th defendant and never knew there was any engineer on the board of NPA.
He agw4 that the contracts in question originated from end users and also agreed that what he saw on the internet was the price situation as at 2005 which Would not contain maintenance and training costs factored in for many of the contracts in issue.
He stated that in 2005 he had about 3 years experience in procurement and that the contract documents relied on by him were available but not produced in court.
Ho further stated that the total yardstick for assessing the contract prices was provided by PW6 and that he personally visited the site of agenda item 13 of exhibit D2 with PW3.
He agreed that he was not the sole electrical engineer in the committee and did not work with exhibit D2 or any minutes or document prepared by the board but instead used the bill of quantities and contract award papers.
Further crossexamination for the 2nd defendant he stated that he did not know the capacity in which the defendants were charged or whether they were also NPA contractors. He instead that his task in the committee included verification of prices.
Cross-examined further for the 3rd defendant he agreed that appraisal officers in NPA fixed prices and not the board.
Learned counsel for the 4th and 5th defendants adopted previous cross-examinations of the other counsel and in answer to the additional cross-examination for the 6th defendant he stated that the inflation of item 4 in exhibit P1A Is included in the report and that he was not aware of the prices approved by the board.
When re-examined he stated that he limited his search on the internet to prices and did not consider staff training and maintenance.
With the consent of all defence counsel PW3 was recalled by the prosecution and he tendered the extra judicial statements made to the EFCC by the 2nd defendant and they were admitted as exhibits P19 and P20 respectively.
He was not cross-examined by all the defence counsel and with his evidence this prosecution closed its case.
The defence opted to call evidence and the 1st defendant testified from the witness box as the sole defence witness.
He is Chief Olabode George an engineer and company director who described himself as a politician by vocation.
In his evidence in chief he traced his academic background and professional experience in the Nigerian Navy until his retirement and his political career in civil life afterwards.
From 2001 to 2003 he was the Chairman of the Board of directors of the NPA and the other defendants were some of the director who served with him on this said board. He listed those who served as lumbers of his board including PW4 Who were however left out of the present trial by the prosecution.
Oh being inaugurated they were briefed by the secretary of the board who gave them the enabling Act, standing orders of the board and, the approved expenditure limits. His perusal of the said enabling Act made it clear to him that the sole authority representing the government to which the board was answerable was the Minister of Transport. Using exhibit D4 as example he pointed out that the standard communication between the Minister of Transport and the NPA is through the Managing Director of the NPA.
He stated that he understood the counts dealing with alleged splitting of contracts and denied he or the board he was pan of, ever doing so. He used agenda 12 of exhibit D2 as an example to show how contracts were presented to the board by the executive director in charge of the user department with a recommendation based on the appraised price and eventually the resolution to award without splitting coming into the discussion.
He similarly denied the counts dealing with alleged inflation of contracts stating emphatically that no such act was undertaken by the board over which he presided as they never added to any recommended price.
He explained the functions of appraisal officers within the NPA stating that they had responsibilities for issues relating to consideration of quotations and recommendation of prices of items presented to the board for approval, the board had no responsibility to determine fair prices and only worked with recommended prices of management.
On allegations of awarding contracts beyond approval limits he stated once again that he understood the counts and explained what constituted the approval limits of the various contract awarding levels in the NPA based on the guidelines given to them on assumption of office and which still operated till date.
According to him, the responsibility for setting approval limits rested with the Minister of Transport in consultation with the President and that due to its commercial and sensitive nature, subject to the directives of the Minister, NPA had financial autonomy.
He was shown exhibit P3 arid he was emphatic that it was not the approval limit he received from the Minister of Transport and that he and the other defendants never got the said document whilst in office and never acknowledged receiving it. When PW4 brought a copy of the said circular to their attention, they felt it was irregular not having been forwarded under the hands of the Minister of Transport to the Managing Director and that it was administrative since it was signed by the Finance Minister.
When referred to the portion of exhibit D2, the board minutes where exhibit P3 was discussed, he stated that the said portion of the minutes was incorrect and gave his own version of what transpired at the said meeting.
He stated that no contract was awarded at the meeting where exhibit P3 was circulated and discussed and no response was received to their letter to the Minister of Transport on the said exhibit P3 asking for clarifications as implementation would have crippled the NPA considering its complex nature and the highly intensive expenditure profile.
He explained steps taken by the board to secure mobilization fees approved on contracts and denied ever receiving exhibit P2. He also denied any conspiracy to disobey lawful instructions as alleged.
Under cross-examination for the 2nd defendant he explained the complex and international implications of the operations of the NPA and the expected role of the board under the NPA Act.
He gave the names of other members of the board who were left out of the charge by the prosecution including PW4 who according to him never objected to any of their decisions.
He was shown exhibit P3 and he pointed out that it has the stamp of the Federal Ministry of Water Resources insisting that the 2nd defendant never received any such document to his knowledge. He further stated that no other contract was approved after exhibit P3 was received and discussed and that exhibit D4 which they relied on came from the Minister of Transport and preceded the appointment of all the defendants to the NPA board and also conformed with exhibit D6 the brief from the legal adviser of the board and exhibit D5 which was still in use in NPA as at 2008.
He stated that the board did not confer a unilateral approval limit on itself and that the reasons adduced for not complying with exhibit P3 were genuine.
He denied all the counts and insisted that the board in which all the defendants served never inflated nor split any contract as alleged and made copious references to the minutes.
Further cross-examined for the 3rd defendant he explained the processes a contract would have passed through from the user department before getting to the board for approval asserting that the board did not appraise prices and never engaged in contract splitting or inflation.
