Date Published: 12/16/09
Justice Oyewole: Is it “Lawful” or “Unlawful” order? By Sylvester P. Ogbunna
It is absolutely imperative to, as a matter of fact, save Nigeria’s public from falling into the tricks of people who use all means to play on our emotion and distract our attention from pursuing the reality of issues regarding some important aspects concerning the state of the nation.
It is quite surprising, the judgement by the High Court Judge of Lagos, to convict Chief Ola bode George the erstwhile Chairman of the Board, and Arch. Aminu Dabo, the former Managing Director of the premier Nigeria Port Authority with four others on charges referred to as “Disobeying a lawful Order” and “Contract Splitting”,
Being a stakeholder and a retiree of the Ministry for Transport, I felt I owe it a duty to come out with some revealing facts and figures which will save the public from being distracted on understanding actual truth of the matter.
Let me in the first place draw the attention of the Judge and the counsels to EFCC, that it will be good enough to have clear knowledge of the NPA itself, so that they will understand that, being a Board chairman or an MD in that organisation, is not as simple as heading a common secondary school.
NPA was created by an Act which is guided by International and Local Laws, due to its commercially operational nature. In fact, this was done to facilitate and protect its economic activities, away from bureaucratic bottlenecks, just as the EFCC’s activities were carved out from the Police functions to save it from the same bottlenecks and be more effective.
This special protection for special agencies made NPA unique in so many aspects. It is the only agency allowed to retain, entirely its total revenue. This makes it to have independent salary structure, housing scheme, pension scheme etc. It also received directly, 7% of the revenue, generated by the Nigerian Custom Service, for servicing its Heavy Duty infrastructure, because their collection as the nation’s second largest revenue source, depends entirely on the operations of the NPA.
It is not by error that it is being called the Gateway to the Nation’s Economy. In fact, the Oil and Gas being the source of the revenue to the country, depends largely on the operations of the NPA. This is very clear, because it is the gateway through which 95% of the foreign earnings came. Take for instance the crude oil which gives the country the largest revenue, is being exported, and refined one imported through the port. 90% of all imports and exports are through the ports, what else therefore remain for the economy?, and at the same time we are being made to believe that, approval limit for its operations was reviewed down to something less than a million Naira, at the time when a single tyre for a crane can cost nothing less than a million Naira.
To make it more clear, NPA has eight different levels of approval, as par its large structure and strategic function. These include the Federal Executive Council, the Transport Ministry, the Board of Directors, the Executives Management, the Managing Director, the Executive Directors, the General Manager and the Port Managers. One may therefore wonder, why only one, out of eight levels was charged with disobeying the lawful order in awarding the said contracts.
This controversy emanated from a purported circular of Federal Ministry of Finance, (no. F.15775 dated 27 th June, 2001) on policy guidelines, which reviewed the approval limits of Federal Ministries and Parastatals, which was sent to the then Board, but “chose by their own volition to disregard the order” in the words of the judge. It will be good enough here to clarify that, that circular, even if exists, does not have any statutory binding on NPA, because of the prerogative it has and position by law. In fact, that was what make that circular not only illegal, but unlawful, and not meant for large organisations like NPA, but may be lawful to other small scale organisations like Agency for Mass Education or National Nomadic Education Agency.
This can be justified by looking at the previous approval limits, as it was N20m for Board, N5m for the MD, while N350,000 for the Port Managers, in the year 1993. It was also reviewed upward, due to an increase in operational costs and subsequent devaluation of Naira in the year 1999, when N30m was approved for the Board, N10m for the MD and N700,000 for the Port Managers, a 100% increase. It will therefore be very funny, unrealistic, and be described as an act of sabotage, to wake up in the year 2001 and tell Nigerians that, that same approval limit be reviewed downward to N10m for the board and N700,000 for the MD, certainly this is unworkable and unlawful. With the MD having that chunk as approval limit, then a Port Manager will not have more than N50,000 as approval limit, which is unbelievable, to run ports like Onne, Tincan or Roro for example, with that amount. The Board therefore, having the statutory right and function to protect and safeguard the interest of the NPA, should certainly resist and fight the unlawful instructions sent to the organisation. This further indicates that the judge is ignorant of the functions and structure of the NPA.
Further more, NPA is divided into 3 different operational categories. The lower level that is the user department, which is saddled with the statutory function of making market survey, appraising, bidding and pricing, and then forwarding to second level its requests. Then the second level that is purely professional level which is saddled with statutory function of sorting, estimating, checking, verifying, standardising and scrutinising the submission made by the lower level, who then forwards their recommendations for approval to the third level, which consist of the MD, Board and FEC who also are saddled with that statutory function. It will therefore be surprising to expect the Board to do the work of the lower categories, for instance going to as down as making market survey or verifying prices. The board was purely administrative policy body, which in many cases, know less or nothing about the technicality of some equipment. Being political appointees, they, in most cases, act upon the professionals’ advice. It will also be surprising to expect what the board discussed in an official meeting called, with resolutions passed, will constitute an offence of conspiracy.
To shed more light, throughout the hearing, the copy of the controversial circular addressed either to the Transport Minister or MD of NPA could not be produced to the court, but always present the one addressed to the Water Resources Ministry as an exhibit. I therefore challenge the then Minister for Transport, who is now the Minister for Foreign Affairs, to produce the copy of that letter being addressed to him, and subsequent covering letter sent to the board of the NPA at that material time.
For us who are conversant with the day to day activities of the Federal Ministry of Transport, are aware of the presidential panel of inquiry constituted in 2002 to investigate among other things, the rift between the ministry and NPA, an allegation of interference by the then Minister of Transport and issuance of counter policy instructions, and review the approval limit as well. Part of the revealing and findings of the panel headed by Umar Faruk, a former MD of New Nigeria News Papers, and a copy which is available in the office chief of staff to the President, the Transport Ministry, and the NPA was that, the then Minister of Transport was found guilty of all the allegations leveled against him. The panel also recommended for the upward review of the approval limit from the previous N10m for the MD to N20m, while N60m for the Board from N30m, which the president approved for implementation, but the then minister Chief Ojo Maduekwe, refused to implement because, he was not happy with the indictment by the panel and had a grudge against the then Chairman of the Board, Chief Ola bode George, an attempt to sabotage the efforts of the then board and to ground the operations of the NPA.
As for the issue of the “Contract Splitting”, the judgment clarify the innocence of the accused persons, because everybody was convinced beyond reasonable doubt that there was no any contract split at the Board level. This is because, during the trial which lasted for 15 months, one of the major prosecution witnesses, Engr. Mustapha Bukar, a Director in the Federal Ministry of Transportation, who chaired the 7-man administrative panel instituted by the Federal Government to probe the activities of the NPA, admitted under cross-examination by counsel to the defendants that, there was no evidence indicating that the contracts awarded were splited at the Board level.
Another area in which the judge erred is by merely importing a law called “responsible corporate offence doctrine” where he wanted to convince the public that an offence committed by the lower level is also binding to the higher level members of an organisation. Looking at the ruling by the Supreme Court, in one of Andy Ubas case, it is therefore an “alien to our constitution of the Federal Republic of Nigeria”, meaning not appropriate in the laws of our land, and adopting such laws in our courts at the same time will set a dangerous precedence in the judicial services of the country, and could therefore be difficult for important personalities to easily accept appointments as board members, thereby missing entirely, their highly needed contributions.
Looking at this case from the political angle we would say that, Baba Aremu is also guilty of closing his eyes while an injustice is about to take place. He was aware of the misunderstanding and quarrel between the two of his bench men chiefs then, but his hands were tight, because he needed both politically and that was why he couldn’t take an action. At the same time the management was locked up suffering as “grass” that “suffers” when “two elephants fight”. In fact, it was his inability to resolve the issue during a special emergency meeting he called in the villa between himself, the then chief of staff, General Abdullahi Mohammad (Rtd), Chief Ojo Maduekwe, Isa Yuguda, Olabode George and Arch. Aminu Dabo, that forced him to inaugurate the presidential panel. This also shows that Justice Oyewole is ignorant of the politics involves in the case, which is a factor that needs to be considered, before making the judgment, and this must be noted for judiciary must not be made a room to settle a score.
Finally, there is one area of fundamental error in the judgment, where the Dabo led management was wrongly convicted for projects executed prior to their appointment in April 2002. This can clearly be seen in count 13 & 14 (contracts awarded in 2001) of the judgement. They would only be liable for contracts executed between 2002 -2003, not a period before that. The judge is as well ignorant of the composition of the Board between 2001 and 2003. For his information, while Olabode and the political appointees were constant Board members, there were three different MDs and the Executive Directors, between those periods of time.
From the little submission above, we would therefore conclude that that purported Circular was not only illegal and unlawful, but mischievous and misguided attempt by the then Minister for Transport, Ojo Maduekwe to micro manage the NPA for nothing but selfish interest.
To the judge, he might be learned in law but ignorant of activities of organisations such as NPA. Because, by looking at the cross section of the witnesses brought in the case, Engr. Mustapaha Bukar, Alhaji Wali Kurawa, (whom was a member of the Board in question, but surprisingly missed on the list of the accused) and Usman Njidda Shuwa are mainly directors from the maritime department of the Transport Ministry, who aided the Minister in perpetrating illegal act of sending unlawful instructions to NPA. The principal witnesses should have been the then Minister, Ojo Maduekwe and his Minister for State, Isa Yuguda, who is currently a serving governor, the subsequent ministers such as Agbaye Sekibo, up to the current minister Ibrahim Isa Bio, for being the source of the so called “approval limit circular”. To further know that that controversial circular is illegal, it has never been used up till today, by NPA, and this can be confirmed by these ministers.
In conclusion, I will call upon all the retirees, serving staffs, the labour leaders and other stake holders to come out and be courageous enough, to tell the whole world all they know about the case, to save the intelligence of the general public from being toyed with. Very soon also, I will resurface to open up another important analysing topic, for further understanding of the above subject matter. This is the issue of concessioning the NPA into 56 different units, with 56 MDs and Management heading each unit. Nigerians will decide who is disobeying lawful order as per as NPA’s operation is concerned.
SIGNED: Sylvester P. Ogbunna. 21 Aba Road, Enugu. Ogbunna_ogbunna@yahoo.com
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