UNSPENT FUND: FED. MINISTRIES ON LAST MINUTE SPENDING SPREE TO BEAT YAR’ADUA’s DEADLINE

Nigeria’s president, Umar Musa Yar’Adua may have placed excessive premium on the integrity of the federal ministries, government departmental and agencies to feel secured enough to inform the national assembly of part financing its budget deficit in 2009 through unspent funds taken back from federal ministries, departments and agencies.

FORTUNE&CLASS Weekly discreet investigations in Abuja, have, however, shown that the president and very senior officials in federal government ministries and agencies may be working at cross purposes.

“Even before the coming of the Yar’Adua’s administration, it has been made mandatory during the Obasanjo’s presidency for federal ministries and departmental agencies to rule off their accounts by the 15^th of December.” A source in the federal ministry of finance informed. “The idea is that after the rule off, no expenditure aside salaries and allowances are allowed until the succeeding budgetary allocation are effected.” The finance ministry source added.

This year end account rule off had turned a mere paper directive until the assumption of office of President Yar’Adua who seemed to decide to make capital of the directive he had inherited from the Obasanjo administration, the seriousness of the administration in this regard was orchestrated when the erstwhile ministers in the federal ministry of health were forced to resign and prosecuted in court on account of an alleged N300million unspent fund in 2007.

FORTUNE&CLASS Weekly cross checks in Abuja, however, revealed that the frontal measures taken against the sacked ministers of health might have hardened the resolve of strategically placed civil servants that had become annual beneficiaries of unspent funds already in the kitty of the ministries.

An insider in the federal ministry of information and communication told this magazine last week that the officials in the account and audit units of the ministry have been busy over the last three weeks as they feverishly dish out contracts and supplies notes so as to eat up a large percentage of what is left of the unspent fund.

“The president thinks he can beat us to the game but we are better at it,” the source boasted. “Civil servants are smarter in these matters, is it not about filling out the appropriate vouchers and back dating them where necessary? In fact, we know how to settle the officials from the ministry of finance that usually come to supervise the account rule off.”

Another source, in an aside with this magazine explained that the cornering of unspent fund in federal ministries and parastatals is limited to very senior officials and staff members in the account and audit department. In the light of the seriousness of the present administration and the oversight function of members of the National Assembly, the source confided that these senior officials agree among themselves on a predetermined amount of unspent fund they will return to the government as unspent fund and also find the appropriate way to dispense with the percentage of unspent fund they have decided to corner.

Several civil servants also spoke of the federal government renewed efforts at ensuring accountability in service like directing that henceforth, any civil servant that was to proceed on a conference; seminar or any form of out station official duty would have the conference or seminar fee paid directly to the accounts of the facilitating body. This is contrary to the tradition where participant (s) from the ministry is/are given conference or seminar participating in cash. A curious angle to seminar or conference participation in the traditional sense is that some conference or seminar fees are inflated that after cash payment to the participating civil servant, such would just cream off the difference an pocket it while another may collect the participating fee and out of station allowance and altogether abandon the conference or seminar.

Beside, overnight and out of station allowances are now paid direct to the account of recipient civil servant than collection by cash as part of the new accountability regime.

Some of the civil servants FORTUNE&CLASS Weekly interacted with said these measures have been eroded with the opening of multiple accounts. Asserting the fact that it may be near impossible for the federal government to arrest the trend of frantically spending off unspent fund in a ministry within a short period, Mr. Nathaniel Cole, a forensic accounting expert and anti fraud specialist said that the model of conventional auditing that the government depends on to stop the diversion of unspent fund into private pockets shows that government is not serious about tracking unspent fund:

“I don’t think government is serious about this. It is obvious that the officials that are going to audit the ministries are interested parties so there is no way they can objectively audit the account to ascertain how unspent fund would have been tampered with. What government needs at such time like this is the service of forensic accountants, because, in truth, a certain aspect of civil servants efforts to corner the unspent fund has to do with some criminality in the area of filling vouchers and back dating them. Only forensic accountants can handle such case. For forensic accountant, it is easy to pinpoint the exact culprits in the account manipulation.” Cole said.

EXPERT DECRIES BANK CHARGES ON RETURNED CHEQUES AS ILLEGAL

Mr. Ori Adeyemo, a forensic accountant and crusader for streamlined bank charges, has decried bank charges on returned cheques and described the fee deducted from accounts in consequence of returned cheques as illegal.

“It is trite that by virtue of Section 10, subsection of the defunct Central Bank of Nigeria (CBN) Bankers’ Tariff, a bank is allowed to charge N1,000 for a returned corporate cheque whilst debiting N300 for a returned individual cheque (to be borne by the drawer),” Adeyemo said.

“It is also true that by the provision of Section 11, subsection 6 of the subsisting CBN Guide To Bank Charges effective January 01, 2004, a returned cheque attracts 0.5 per cent of amount, maximum N5,000 (to be borne by the drawer).

“In both cases,” Adeyemo argued, “the CBN guidelines stipulate that only the drawer of a cheque should be penalised for a returned cheque and not the supposed beneficiary (who never took value for consideration anyway.)  Unfortunately, we all know that this situation is not true in Nigeria as banks whimsically charge both the drawer and drawee for a returned cheque, thereby amounting to double-jeopardy especially for the drawee who never took any benefit.”

 Affirming the contradiction in the statutes relating to fees sanctions as a result of returned chques, Adeyemo said: “I must emphasise that the CBN is wrong to have inserted returned cheque fee into the defunct Bankers’ Tariff as well as the subsisting CBN Guide To Bank Charges being in crass breach of the Dishonoured Cheque (Offences) Act of May 20, 1977, which makes it a nullity for the following reasons:

a.     That a returned cheque is a criminal offence and not a civil offence.

b.    That only the injured party (that is, the supposed beneficiary) has a right to complain about a returned cheque to the Nigeria Police or better still, the Economic & Financial Crimes Commission (EFCC) and definitely not a bank.

c.     Returned Cheque Fee is a penalty which only a court of competent jurisdiction can impose on a citizen of the country. 

d.    No party to a contract can impose any form of penalty/fine on other parties to a contract as doing so is repugnant to natural justice.  

e.     That a bank has no special or pecuniary interest in a returned cheque being just a clearing vehicle for a deposited cheque.

f.     That Section 9 of the subsisting CBN Guide to Bank Charges, clearing of cheque or draft in Nigeria is free.  Moreover, no bank can charge any fee for collecting any deposit in Nigeria.

g.    That according to the Dishonoured Cheque (Offences) Act of May 20, 1977, upon conviction; an individual is liable to two-year jail term without an option of fine while for a body corporate a penalty/fine of not less than N5,000.

h.     Only the Attorney-General of a state (without excluding the Attorney-General of the Federation) has a right of criminal prosecution of a defaulter and definitely not a bank.

i.      That Section 25 of the Interpretation Act (which provides that a person shall not be punished twice when guilty of an offence under more than one enactment) shall apply in respect of offences under this act.

j.      Since this Section 11.6 of the subsisting CBN Guide to Bank Charges as it relates to a bank charging its customer Returned Cheque Fee is in breach of the Dishonoured Cheques (Offences) Act being a legislation of the National Assembly, the Dishonoured Cheques (Offences) Act will prevail.

“In simple language, I am saying that since a bank is not a party to a returned cheque, then such bank cannot lay claim to it.  We should cast our mind to the law of privities of contract wherein it is clearly stated that only parties to a contract can sue for the enforcement of a contract and not even those in whose interest the contract was made,” Adeyemo insisted.

“You will agree with me that the initial beneficiary of a clearing cheque is the bank that went to clear the cheque that should have taken custody value for the drawee but that alone does not give room for the bank to lay any claim on the money since the bank is not the real beneficiary of the fund but just a mere custodian.

“Therefore, I cannot but submit that the present CBN Guide to Bank Charges, is fraught with illegalities to the crass detriment of bank customers thereby allowing banks to smile away at all times, leaving the customers short-changed.  In fact, this was one of the issues I had wanted to address in May 2008 at the House of Representatives’ probe of the banking industry until it was fraudulently compromised by the banking cabal working in concert with the then leadership of the House Committee on Banking & Currency.”

Adeyemo argued that on account of the subsisting convention of fee sanctioning for returned cheques, he had been demanding a review of the CBN Guide to Bank Charges: “I cannot but request for a thorough review of the CBN Guide to Bank Charges wherein the opinion of every stakeholder in the industry will be accommodated as against the present one which was drafted by Mr. Jim Ovia, the Zenith Bank Plc Managing Director and so wholesomely adopted by the CBN without any input from the bank customers, thereby skewing the graph in favour of the banking industry.

“In simple words, I submit that it is totally illegal for any Nigerian bank to penalize a customer for a returned cheque, as doing so will translate to the fact that the banks have become laws unto themselves, having illegitimately taken over the job of the judiciary,” Adeyemo submitted.