Ex-NIMASA DG’s trial and the ‘missing’ audit report

The embattled former director general of the Nigerian Maritime Administration and Safety Agency (NIMASA), Raymond Omatseye, on Wednesday May 20, 2015, told a Federal High Court that the purported Omorodion audit report which was used to indict him is missing from the court documents.

He said that it is based on that report that the Economic and Financial Crimes Commission (EFCC) hinged his arrest and current trial. Also missing, according to him, are documents which led to the final purchase approvals in the agency under his watch.

Omatseye is facing an amended 27 counts charge bordering on contract splitting and bid rigging to the tune of about N271 million. The EFCC had amended the charge filed in 2010, and on which proceedings commenced in early 2011 on few occasions.

The anti-graft agency first arraigned Omatseye in February 2011 on 11-count charge in which he was charged with alleged diversion of public funds and contract splitting.

He was specifically accused of unlawfully transferring £300,000 from NIMASA’s Barclays Bank, London, to fund the campaign of one Mrs. Mbanefo, who was aspiring to be the Secretary-General of the International Maritime Organisation (IMO).

Trial had commenced with the prosecution calling some of its witnesses when the prosecution later withdrew the charge and replaced it with the one dated June 12 but filed on 13 June 2012.

This amendment however altered the texture of the trial. The charge of unlawful transfer of £300,000 and charges of contract splitting was expunged, bringing in new charges of ‘approval above threshold and bid rigging’.

As a result, the new charge of 27 counts, containing allegations of contract splitting and bid rigging was read to him. He pleaded not guilty. Omatseye was consequently re-arraigned on January 21, 2013 on the amended 27-count charge before Justice Rita-Ofili Ajumogobia following the transfer of the earlier trial judge, Justice Fatimat Nyaka.

The former NIMASA boss said his prosecutors amended the claims because they could not prove that he got involved in the process of contract splitting in the agency. The accused has since December 2010 suspended from office. Led in evidence by his counsel, Edoka Onyeke last Wednesday, Omatseye explained that the first time he sighted the report prepared by an accounting firm known as Omorodion & Company was at the EFCC’s office in Abuja.

“On glancing through it and seeing what was alleged, I told them that if they had shown the report to me long ago, it would have made our lives easier”, he told the court.

He further informed Justice Ofili-Ajumogobia that the report focused purely on the fact that he had split the contracts to bring it within his approved threshold. “All the questions I was asked during my incarceration focused purely on contract splitting.

At no time was there any question asked about me approving any contract above my threshold and if that had been done, I could have explained such in my statement to the commission tendered before the court as evidence by my prosecutor”, he submitted.

Omatseye said immediately he was bailed from the EFCC custody and having been placed on suspension as the director general of NIMASA, he paid a visit to Mohammed Bello Adoke, Attorney General of the Federation (AGF) and Minister of Justice who told him that a petition against him was brought by Yusuf Suleiman, then minister of transport on the allegation that he, (Omatseye) threatened to send him to jail.

“My Lord, he (Adoke) said he kept this to himself all the time as the claims being made did not warrant the EFCC getting involved.

But he immediately changed his mind the day I apparently told him to put the Nigerian Liquefied Natural Gas (NLNG) matter in writing and he saw me as arrogant and will keep this case in court till the end of this administration”, the suspended director general of NIMASA testified.

Omatseye had actually started his testimony on Tuesday May 19, 2015 by first craving the indulgence of the judge to allow him to go into the background story. According to him, the court would only appreciate his case if he was allowed to do so.

Though Chief Godwin Obla (SAN), EFCC prosecutor raised objection to that line of testimony, the judge, however, allowed Omatseye to proceed with his testimony.

The ex-NIMASA boss said he is being persecuted by the AGF for refusing to withdraw the NLNG case with NIMASA. “In December 2010, I was approached by a gentleman, who at that time was the Executive Director of the Cabotage Service of NIMASA, in the name, Ibrahim Zailani.

Zailani told me that he had been in a meeting with the Attorney General of the Federation, and that the AGF had directed him to tell me to withdraw a case between NIMASA and NLNG.

I told him I was unable to withdraw the case because it was a board decision”. Omatseye, while testifying on the issue of approving above his legitimate threshold told the judge that on being appointed the DG of NIMASA, he met a system whereby procurement was being carried out by petty cash.

He noted that the amount being signed was on the high side, making him to issue a directive that every single item that must be purchased must be bided for and the bid placed on the notice board for members of the public to participate.

He added that the Bureau for Public Procurement(BPP) in a workshop held at the agency’s office in Kirikiri for parastatals under the ministry of transport said the aim of the procurement process is to take away from the chief executive officer, interference in bidding processes and making all CEO who are the approving authority not to be involved in conducting the process.

“This, my Lord was in 2010, while the contract in question was awarded in 2009 when my approval limit was from N2.5 million to five million”, he explained.

However, a twist was added in the testimony when he discovered that some pages in the files from the procurement were missing. The missing pages include pages 1-76; 79; 81-88 and 89-90.

“My Lord, a file is supposed to tell the story of what the file is all about. But the file before me which the prosecutor is alleging that I signed does not tell any story about the contract being awarded or even services sorted for”, Omatseye pointed out.

He said while it should be noted that he is not the person that prepared the files, as at the time of interrogation, nothing else was brought to him except the purported audit report.

“My Lord, there are discrepancies why I was arrested in the first place and why I was brought to court”, he pointed out. According to Omatseye, the documents in court could not form the basis for any contract approval in NIMASA. He insisted that the letter of award of contract provided in court is not the contractual document between the agency and the contractor.

He said the one the prosecutor provided is a mere offer for which the contractor is to accept and enter into an agreement. His words: “In the agreement, which is signed by the legal adviser and the DG, it states clearly the terms of the contract and also attached to it is the scope of work which tells whether it is just supply or a supply and installation.

Failure to bring the contract and the scope of work is a major flaw as it forms the basis of the agreement between the contractor and the agency and the work to be done.

The ex-NIMASA boss said he is being persecuted by the AGF for refusing to withdraw the NLNG case with NIMASA. “In December 2010, I was approached by a gentleman, who at that time was the Executive Director of the Cabotage Service of NIMASA, in the name, Ibrahim Zailani. Zailani told me that he had been in a meeting with the Attorney General of the Federation, and that the AGF had directed him to tell me to withdraw a case between NIMASA and NLNG. I told him I was unable to withdraw the case because it was a board decision”.

Without this, the contractor cannot be paid. Therefore, my Lord, some papers are missing here. The DG cannot sign four paper sheets.

The budget department, procurement, and other necessary departments must comment before a file can be said to be completed and payment made.

In all this, the DG must sign all”. On the issue of the generating set earlier raised by a prosecution witness, Omatseye told the court that the audit report said the market value of the Generators were N89million only, whereas he awarded it at the cost of N129 million.

“My Lord, as at the time, the so called report was put together in Abuja, no personnel of NIMASA was invited to present any paper, invoice or document.

If they did, they would have known that the agency allows for five percent Value Added Tax (VAT); five per cent withholding tax; 30 percent profit tax and another five percent interest tax, in case there is delay in payment. All amounting to 45 percent.

My Lord, when added to the market value of the product in question, you will get N128million that it was awarded for and it was taken to the board which approved it”, he explained. Omatseye pointed out that he never concluded or got involved in the bidding process as the director general and chairman of the Parastatal Tenders Board (PTB).

He told the judge that the process was infact conducted by the procurement department, that he never for once interfered in the process.

“ If I did, I would not have cancelled the contract when the contractor was not forthcoming with the supply. In fact, the said generator was purchased by the NIMASA management that took over from me”, he stated.

Having taken his testimony, in the session which lasted more than six hours, the trial judge then adjourned the case to the June 1and 2, 2015 so the prosecutor would cross examine him.