Why Kogi Panel Cleared Former Deputy Gov of Gross Misconduct – TheNigerialawyer

•State assembly failed to call relevant witnesses, present
documents
•Could not substantiate four charges, abandoned two pleadings
•Breaches constitution despite these findings

The probe panel, which investigated the former Deputy Governor
of Kogi State, Mr. Simon Achuba, on allegations of gross
misconduct, returned a not-guilty verdict against him because none
of the six-point charge against him was substantiated by the state
House of Assembly.

A copy of the report submitted to the state legislature last
Friday, upon which the lawmakers summarily removed Achuba from
office, despite his clearance, detailed how the legislators either
failed to provide proofs to back their allegations against Achuba,
or in cases where witnesses were called against the former deputy
governor, their testimonies were too weak to convince the
panel.

The panel, chaired by a Senior Advocate of Nigeria (SAN), Mr.
John Baiyeshea, has as members: retired Justice S.S. Idalu, U.O.
Onoja, E.I. Omuya, both lawyers, Venerable Z.O. Asun, Mohammed Ada
Shuaibu, an engineer, and Dr. I. Ndagi Adamu.

The report said while the complainant, the Kogi State House of
Assembly, had during the hearing failed to call relevant witnesses
and tendered relevant documents to prove four of the charges
against Achuba, it, however, abandoned two of the charges by not
leading any evidence in them.
The seven-member panel, which the Chief Judge of Kogi State,
Justice Nasiru Ajana, constituted on August 26, began sitting
immediately by ordering the serving of the notice of allegations of
gross misconduct on Achuba.

The allegations range from financial misconduct to scandalising
the government and people of Kogi State.
However, the panel in its report titled Panel Investigating
Allegations of Gross Misconduct against Deputy Governor of Kogi
State: Report of Panel, Volume 3, dismissed one after the other,
the six-point allegations against Achuba.

In hearing the petition, the panel said it was guided by section
188 of the 1999 Constitution in considering the facts, evidence,
regulations, laws and all materials placed before it, adding that,
“the issue for determination was whether the allegations of
misconduct against the deputy governor as contained in the notice
of allegations of misconduct have been proved by the
complainant.”

On the allegations of financial misconduct and non-compliance
with extant financial regulations and fiscal responsibility
applicable to Kogi State, levelled against Achuba, the panel held
that the allegations were not proved because it could not attach
probate value to the documents tendered by the complainant as proof
of the allegation.

It said: “In an attempt to establish this allegation, the
Complainant called 8 witnesses and tendered Exhibits C13 – C14
(Extract of Audit Report) and Exhibits C15 – C15a, which are
documents titled Release of Funds and Request for Approval of
Funds. The summary of the evidence of all the said witnesses is
that the Deputy Governor ought to retire some funds and reference
is made in this allegation to records from the Accountant-General’s
Office and other appropriate Agencies, which the Complainants claim
indicate total non-compliance by the Deputy Governor but Exhibit
C8, C9, C10, C11, C12 produced from the Accountant General’s office
tendered by CW2, firstly are not signed documents except for its
certification. So the maker is not known and by reason of them
having not been signed originally, they are of no probative value.
However, the said exhibits even if we are to take it that the
certification on them by Elijah Ebinemi (Acting Director of
treasury) are proper, will still not be helpful to prove the first
allegation in that they are mere schedules of payment and not
tantamount to actual payment. In fact there is no evidence before
us to show that any amount stated in those exhibits was paid
personally to the Deputy Governor.

“The witnesses under cross-examination by counsel to the
respondent, Jibrin Okutepa SAN, all admitted that the Accounting
Officer of the deputy governor’s Office is the permanent secretary
and not the deputy governor.”
The panel further held that the allegation of financial impropriety
was not established because vouchers to prove that the deputy
governor actually collected money were not placed before it, a
condition which was fatal to the allegation.

On the second charge, which bordered on deliberate disdain for
decision of the Kogi State Executive Council on mode of execution
of contracts between the state and third parties, the panel held
that failure of the complainant to lead any evidence in that
direction made the allegation deemed abandoned and is consequently
not proved.
On the allegation of absconding from office and abandonment of
official duties and functions, the panel also held that the
allegation, like previous ones, was not proved.
“On this allegation, we find the evidence of CW1 – Secretary to the
State Government, unhelpful to establish the allegation. Under
cross-examination by J. S. Okutepa (SAN), counsel to the Deputy
Governor, when the counsel wanted to know whether the way to know
that the Deputy Governor was not at the ExCo meeting was to see the
attendance in the minutes of the meeting, she answered that the
minutes is a secret document. And when asked whether her office
served notice on the Deputy Governor to attend meetings, her
evasive answer was that attendance of ExCo meetings is
statutory.

“Again when asked whether she issued query to the Deputy
Governor on this allegation, she said the Deputy Governor is her
boss, so she cannot issue him query. When asked whether the
Governor issued a query to the Deputy Governor, she said no. The
Panel finds it difficult to rely on this kind of evasive answers as
evidence of proof of the allegation. Our position is reinforced by
the defence of the Deputy Governor in Paragraph 16 (a) – (f) of his
deposition wherein he gave facts to show that he has been attending
to his official responsibilities.

The Deputy Governor also tendered Exhibit RL1, RL2, RL3, RL4
(which we accept) as evidence of performance of duties; attending
to files, correspondence and official communications requiring his
personal attention. CW 5 – The Permanent Secretary confirmed the
facts in this Exhibit under cross-examination. CW 5 stated also
under examination-in-chief that since he resumed in the Deputy
Governor’s office in 2018, the Deputy Governor has attended to his
duties except for occasions when he did not come to the office. But
the witness did not say how many those occasions were. We accept
the evidence of the Deputy Governor that apart from when he was on
leave, there was no time he absconded from his duties as alleged,”
the report said.
In dismissing the fourth allegation, which bordered on scandalising
the state government, the panel held that the evidence led by the
complainant fell short of the required minimum standard of
acceptable prove.

The panel, in its verdict, said: “ In the usual normal legal
context of matters of this nature, the material containing the
exact words used or alleged to have been used by the Deputy
Governor, which the Complainants have gone at length to quote
supposedly verbatim (with underlining for emphasis), is supposed to
be tendered in evidence. In the proceedings before us, in which we
are being invited to pronounce on whether the allegation is proved
or not proved, the standard of proof cannot be lowered since the
determination of the civil rights and obligations of the Deputy
Governor is seriously at stake in the proceedings.

“Therefore, it is our report that in our accusatorial legal
system, the party that is accusing another, in this case, the
complainant accusing the Deputy Governor, must bring evidence that
meets the required minimum standard of acceptable proof. Therefore,
in this particular allegation, since the complainants have gone to
quote in extenso, allegedly/supposedly verbatim what they claim the
Deputy Governor said on television/press, they have a duty to prove
that those were the exact words of the Deputy Governor.

“The complainants are not to presume or assume that by merely
quoting and even underlining for emphasis what they claimed the
Deputy Governor said that the Panel would just believe it and it
would be taken as the gospel truth of what is contained
therein.”
Similarly on the allegation that the governor ridiculed the state
by making public claim of his unpaid salaries, the panel held that
failure of the complainant to present publication of his letters by
his lawyers was fatal to the case.

The panel held that if anything, the position of the
complainant, “his claim as regards nonpayment of salaries is
believed to be false upon an objective consideration of the state
of the state’s finances hitherto which is well known to all members
of this house who also made efforts to find solutions” is an
admission that the deputy governor’s salaries have indeed not been
paid and has reason to complain.”

The panel further held that the complainant have not placed
anything before it to show that the claim of the deputy governor is
not true.
Following the failure of the complainant to lead any evidence on
the sixth issue which alleged indictment of sponsoring communal
unrest, murder and displacement of communities in Iyano, Ibaji LGA
of Kogi State, the panel held that the allegation was not proved.
“Also the report indicting the deputy governor was not presented,”
the panel said.

It concluded: “In line with section 188(8) of the Constitution
quoted herein before, we hereby report to the Kogi State House of
Assembly that the allegations contained in the notice of
allegations admitted in evidence by this panel as exhibit C7 have
not been proved.”

Culled from THISDAY

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