Dubai-based Nigerian car dealer stranded in prison cause of fraud (See)

 

An accused person, standing trial before a court of law, enjoys the privilege of being assumed innocent until the prosecution is able to prove that he is indeed guilty of the offence that he has been charged with.
In view of this privilege, the court, based on its discretion, often releases an accused person on bail shortly after he has been arraigned.

But admitting an accused person to bail is not automatic. Usually, before releasing an accused person on bail, based on its discretion, one of the factors that the court considers is the nature of the offence – whether it is bailable or not bailable. The court also considers the gravity of the alleged offence and the weight of the punishment attached to it upon conviction. Among other things, the judge may also consider the likelihood of the accused person interfering with, manipulating or destroying the evidence of the prosecution after he has been released on bail.

But, usually, the court is enjoined to exercise its discretion in favour of an accused person and the practice is that many judges will admit an accused person to bail after all the requisite conditions have been met.

Such was the case of Max Evbayiro, a Dubai-based Nigerian car dealer, who was charged with 12 counts of advanced fee fraud before Justice Lateef Lawal-Akapo of a Lagos State High Court in Ikeja.

Evbayiro had on April 28, 2014 been arrested by operatives of the Department of State Services at the Murtala Muhammed International Airport in Ikeja, Lagos on the allegation that he had in his possession documents intended for fraud.

Upon his arrest, his seven mobile phones, laptop, luggage and his traveler’s passport were seized by the DSS, which subsequently detained him for about 21 days before handing him over to the Economic and Financial Crimes Commission on May 19, 2014 for further investigations.

His travail had continued with the EFCC further detaining him for nearly four months, while conducting investigations, before Evbayiro was eventually taken before Justice Lawal-Akapo on September 17, 2014 where he was arraigned on 12 counts.

It had looked like Evbayiro might enjoy some freedom in the course of his trial when shortly after his arraignment, the judge granted him bail in the sum of N10m with two sureties in like sum. He was also ordered to deposit his traveling passport in the custody of the EFCC pending the conclusion of trial.

But the reality is that though he had been given bail, he has not been able to enjoy it – the main problem being his inability to pay the N10m bail sum.

What is peculiar in Evbayiro’s case is that he claims to have funds in three banks accounts, where he could have withdrawn money to fulfill the bail term, but according to his lawyer, Emeka Ugwuonye, soon after Evbayiro’s arrest and transfer to the EFCC, the anti-graft agency had written to United Bank for Africa, Diamond Bank and FCMB asking that Evbayiro’s accounts be frozen.

His fate was further sealed after the EFCC obtained an interim injunction from Justice Saliu Saidu of a Federal High Court in Lagos on March 9, 2015 ordering that the accused accounts be frozen pending investigation by the EFCC.

Justice Saidu had after granting the injunction transferred the case file to Justice Lawal-Akapo of the Lagos State High Court after being informed by Evbayiro’s lawyer, Ugwuonye, that the matter was pending before the Lagos State High Court.

Though Ugwuonye had urged Justice Saidu to vacate the order freezing Evbayiro’s account before transferring it, the judge, however, declined saying Justice Lawal-Akapo would look into the issue.

But the final nail on the coffin as regards Evbayiro’s chance of being able to access funds in his bank accounts, seemed to be the dismissal of his application by Justice Oluwatoyin Ipaye on July 30, 2015.

The case had been brought before Justice Ipaye, who was sitting during the court’s annual vacation, so that it would be expeditiously treated.

In her ruling, Justice Ipaye said Evbayiro failed to prove that the funds in his accounts, which he intends to access to pay for his bail, was not proceeds of fraud.

The judge also said she did not have the authority to upturn an order given by Justice Saidu freezing Evbayiro’s account because both herself and Justice Saidu are judges in courts of coordinate jurisdiction.

With Justice Ipaye’s ruling, it seemed that Evbayiro, whose freedom has been curtailed since April 28, 2014, will remain in Kirikiri prison throughout his trial period, despite having been released on bail.

The other problem that Evbayiro faces is that his lawyer may withdraw his services over his inability to pay legal services, which he had been planning to pay from the funds in his frozen accounts.

His lawyer, Ugwuonye, had, during the last proceedings, expressed frustration that apart from not having received his professional fees, it was also getting difficult to file and pay for the filing of court papers in the case since the accused has no funds to defend himself.

But Justice Ipaye urged Evbayiro to consider approaching the Lagos State Office of the Public Defender for free legal representation in court after refusing his application to unfreeze his accounts.

In the said application, lawyer for the accused, Ugwuonye, had argued that the order freezing his accounts ought to have been vacated since upon the conclusion of its investigations, the EFCC did not accuse him of keeping proceeds of fraud in the accounts.

Ugwuonye, who accused the EFCC of acting out of malice, alleged that the order freezing his account was obtained to “harm the defendant in a specific manner, which was to prevent him from having funds to engage the services of a counsel for his defence in the criminal charge against him,” and to prevent his constitutionally guaranteed right to fair hearing in court.

“At the end of the complainant’s investigations of the defendant’s accounts, the complainant did not find any single fraudulent deposit into the accounts, and the complainant did not find any basis to charge the defendant with actual fraud or any offence that would have alleged that the defendant received any money into any of the accounts.

“The effect of the actions of the complainant deposed to in this affidavit is that the defendant has been rendered unable to defend himself against the charges filed against him in this case. As a result of the said actions of the complainant, the defendant has not been able to meet the terms of his bail and has not been able to pay his counsel their professional fees for representing him in court.

“Based on his encounter with the complainant, the defendant believes that the complainant acted in a manner deposed to in this affidavit with the aim of forcing him into a situation of helplessness and hopelessness,” one Chinelo Igwe had said in the affidavit supporting Evbayiro’s argument.

But in its counter-affidavit opposing the unfreezing of Evbayiro’s bank accounts, the EFCC denied acting out of malice saying its investigations revealed that proceeds of crime were remitted into the contentious bank accounts.

It had urged the Lagos State High Court to dismiss Evbayiro’s prayer to vacate the freezing order, arguing that “The Federal High Court and the High Court of Lagos State are courts of concurrent jurisdiction and that the High Court of Lagos State cannot sit on appeal over the decision of the Federal High Court.