EFCC as Prosecutor Not Persecutor in Bello’s Trial

Respite came the way of former Kogi State Governor, MrYahaya Bello, last week following his release on bail by a Federal High Court sitting in Abuja, writes Alex Enumah

After spending about 24 days in the custody of both the Economic and Financial Crimes Commission (EFCC) and the Correctional Service Center in Kuje, former governor of Kogi State, MrYahaya Bello, regained freedom last week to now prepare for his trial on alleged corruption, money laundering, breach of trust, among other charges filed against him by the anti-graft agency.

The EFCC is specifically accusing the former governor who is the 1st defendant among three others of diverting funds belonging to Kogi State during his tenure as governor, between 2015 and 2023.

Both at the Federal High Court in Abuja and the High Court of the Federal Capital Territory (FCT) where he was arraigned, Bello pleaded not guilty to all the charges preferred against him and was admitted to bail in the sum of N500 million by each of the two courts.

The import of the bail demonstrates the position of the law that a defendant is “presumed innocent untill proven others”. Bail, although is usually at the discretion of the court, is however granted when there is some measure of assurance that the defendant would not escape from trial and would also not be a threat to witnesses that may be called to give evidence against him or even tamper with evidence.

Besides, bail is also granted to enable the defendant prepare adequately for his trial as he or she is not in custody where access to his lawyer or his own witnesses are curtailed or deprived.

Before any application for bail is granted, the prosecution has a right to oppose and if it produced very strong evidence as to why a defendant should not be released, the defendant is then remanded throughout the duration of the trial.

However, in the instant case, despite filing its counter affidavit to the former governor’s bail application in the two courts, the anti-graft agency showed understanding with the legal team of the defendants to enable a smooth and accelerated trial by not insisting the former governor remains in custody pending the conclusion of trial.

Like the lead counsel to the Commission, Mr Kemi Pinheiro, SAN, said and demonstrated, the “EFCC is a Prosecutor and not a Persecutor”. Recall that it took about seven months for this trial to commence, due to litigations against his arraignment, which ran all the way from the high court to the Supreme Court. In one instant, the EFCC had threatened to use maximum force, including that of the military to invade wherever it believed the former governor was and bring him to face trial. However, this was not the case and despite the heat and tension the matter had generated, heaven did not fall, neither was there any fire and brimstone during the arraignment of the former governor.

Peaceful resolution of the stalemate first came on November 26, 2024 when Bello turned himself in to the Commission, which had for several months sought for his arrest and prosecution of his management of Kogi State’s funds as governor.

Upon his surrendering at the headquarters of the anti-graft agency in Jabi, Abuja, Bello was taken into custody and then brought before Justice Maryanne Anenih of the High Court of the FCT. Recall that, the judge had earlier issued a public summons against the 1st defendant over a charge filed against him. Upon arraignment, he pleaded not guilty to the 16-count charge read against him and the two other defendants.

His lawyer, Chief Joseph Daudu, SAN, subsequently moved his bail application, which was objected to by the prosecution. While the judge then adjourned her ruling in the bail application to December 10, she ordered that the former governor continue to be in the custody of the EFCC. With this order, the prosecution then took him before Justice EmekaNwite of the Federal High Court, where a 19-count criminal charge bordering on money laundering, fraud and misappropriation of funds to the tune of N80.2 billion was first filed against him as far back as April, 2024.

He was said to have committed the alleged offences when he was governor of Kogi State between 2015 and 2023.

The judge had earlier adjourned to January, 2025 to rule whether to try the 1st defendant in absentia as was requested by the counsel to the prosecution.

At the resume trial on December 13, 2024, Pinheiro had informed the court of the prosecution’s intention to withdraw an earlier application for abridgment of the earlier date fixed for arraignment, on grounds that the application had been overtaken by events (the availability of the 1st defendant in court). Responding, Bello’s lawyer said he was not opposed to the application, following which the judge granted the request.

After the defendant had taken his plea, Daudu made clarifications on the reasons he had not been in court during the previous hearings. “I would like to place on record that for any impression that might have been created that the defendant did not wish to appear before your lordship, coincidentally, the ruling on my lord’s sitting this morning dealt with the issue of jurisdiction.

“What the defendant did was to ask his counsel to challenge the jurisdiction of the court, which got to the Court of Appeal and the Supreme Court.

“So it was not a wishful disrespect but he was only trying to defend himself. So we all hold your lordship in high esteem. If that impression must have been, he should not have presented himself for arraignment. That episode is gone and things are clearer now,” Daudu stated.

While moving an application for bail, he assured that the former governor would always be present in court for the trial.

“I am saying this with the highest sense of responsibility that the defendant, a two-term governor of Kogi State, who travelled only two times out of his eight years in service, will always be present in court at all times.

“There should be no apprehension that he will jump bail. So we urge your lordship to grant us very reasonable conditions of bail such that he will be able to bear,” the senior lawyer said.

He also informed the court of an understanding between counsel not to stress the court over the issue of bail.

Responding, Pinheiro confirmed that “we have been engaging in series of discussion to ease the burden on your lordship in compliance with Rule 26 of Rules of Professional Ethics.

“I also note that your lordship had delivered not less than five rulings in this matter and it is our aim to ease the work. We are prosecutors not persecutors and EFCC is a professional commission, a prosecutorial and not persecutorial commission,” he said.

“We accept the assurances of the very eminent SAN that the defendant will make himself available subject to your lordship’s discretionary terms that may be imposed.

“By so doing, we will ease the burden on the court. Therefore, we will not be opposing the eminent SAN’s submission”, he added.

Pinheiro said although they had filed a counter-affidavit, they would not oppose the bail, going by the assurances of the learned SAN.

Delivering ruling in the bail application Justice Nwite held that he was minded to grant the bail even though it was at his discretion, due to the good behaviour of Bello’s lawyer, Chief Joseph Daudu, SAN and the show of understanding from prosecution lawyer, Mr Kemi Pinheiro, SAN.

“I have listened to the submissions of both counsels. It is not in dispute that both counsels have filed applications in respect of this.

“Based on the account exhibited by learned counsel for the defendant, which was exhibited and supported by prosecution counsel, I am minded to change my earlier stand on this matter”, the court held.

The court accordingly admitted the defendant to bail in the sum of N500 million with two sureties in like sum, who must own landed properties in Abuja, and also swore to an affidavit of means. According to Justice Nwite, the said property’s documents must be verified by the registrar of the court. The two sureties alongside with Bello shall deposit a recent passport photographs to the court, while Bello in addition is to deposit his international passport with the court.

Justice Nwite who ordered that the defendant be remanded in the Kuje Correctional Center in Abuja, however held that the former governor should be released upon perfection of the bail conditions.

At the FCT High Court, although Justice Anenih in her ruling on December 10, 2024 declined to admit the 1st defendant to bail on the grounds that the application was premature, because it was filed before arraignment, the judge in her ruling on December 19, 2024 also admitted the former governor to bail in the sum of N500 million with three sureties in like sum, upon a fresh application.

When the matter was called for hearing, Daudu, informed the court that the defence counsel had filed a further affidavit in response to the counter affidavit filed and served by the prosecution counsels. He, however, applied to withdraw the further affidavit, saying, “We do not want to make the matter contentious.”

Since the counsel to the prosecution, OlukayodeEnitan, SAN, raised no objections the court therefore, granted the application for withdrawal, striking out the further affidavit.

Speaking further, Bello’s lawyer drew the court’s attention to an understanding reached by parties towards the speedy trial of the matter. He therefore urged the court to release his client on bail to enable him prepare adequately for the trial.

The senior lawyer, however, prayed the court to kindly review the bail conditions for the 1st, 2nd, and 3rd defendants. According to Daudu, the court should broaden the scope of properties to be used as bail sureties to include locations across the FCT, rather than limiting the location solely to Maitama.

Responding, Enitan said, “I confirm the evidence given by the distinguished member of the bar that is leading the Defence, J.B. Daudu, SAN, that he has been in conversation with the leader of the prosecuting team.

“As with the legal tradition that we should cooperate with members of the bar when it does not affect the course of justice, we have decided not to make this contentious, bearing in mind that no matter how industrious the defence counsel might be in pushing forward the application for bail and no matter how vociferous the prosecution counsel can argue against the bail application, your lordship is bound by your discretion to grant or not to grant the application. We are therefore leaving this to your lordship’s discretion.”

Justice Anenih, while delivering ruling acknowledged that the offence the 1st defendant was charged with was bail-able and subsequently granted him bail in the sum of N500 million, with three sureties in like sum. The sureties according to the judge must be notable Nigerians with landed property in Maitama, Jabi, Utako, Apo, Guzape, Garki and Asokoro.

In addition, the 1st defendant is to deposit his international passport and other travel documents with the court and is to remain at the Kuje Correctional Center pending the perfection of his bail.

Following the perfection of the two bails, the former governor was on Friday, December 20, 2024 released from custody of the Correctional Service Center. Also, in the absence of a fresh charge filed against him by the EFCC, it can adequately be said that there is no threat of his re-arrest and as such he can begin adequate preparations for his proper trial.

His release, no doubt would also bring some serenity and normalcy to the Federal High Court, Abuja and FCT High Court, Maitama, which were usually condoned off and taken over by security personnel, causing untold hardship to court staff and users.