Reprieve came the way of
convicted former Chairman of the Board of Directors of the Nigeria Ports
Authority, NPA, and chieftain of the Peoples Democratic Party, PDP, Chief
Olabode George, as the Supreme Court, yesterday, voided the two years jail term
which he (George) served after being convicted for fraud by a Lagos High Court
on October 26, 2009.
The apex court said Chief George was tried under a
law that did not exist at the time he served as board member.
A five-man panel of the court,
in a unanimous judgement, maintained that as at the time the Economic and
Financial Crimes Commission, EFCC, charged the former NPA boss to court, the
offence of ‘’contract splitting,’’ was not known to any Nigerian law.
The Court stressed that the
Public Procurement Act which made contract splitting an offence punishable with
a term of imprisonment, was by the National Assembly in 2007, long after the
appellant had ceased to be a member of the NPA.
’’The Act was not made to take
retroactive effect. Even if this was the case, it would have been contrary to
Section 36(8) of the 1999 Constitution,” the court held.
Whereas Justice John Afolabi
Fabiyi delivered the lead judgment in the appeal by the ex-NPA Chairman,
Justice Kumai Bayang Aka’ahs delivered two other separate judgments that
equally discharged and acquitted other board members of the NPA who were
prosecuted and jailed with George.
“It has been established that the
case of the respondent rests on shifting sand. The charges framed against the
appellant in respect of splitting of contracts and disobedience of guidelines
in Exhibits P3 is unknown to any written law at the material time. They rest on
nothing in the face of the provisions of Section 36(8) and (12) of the 1999
Constitution. They cannot stand as they fall flat.
“And to cap it, the prosecution
laced the extant charges with intention to defraud, an extra element of the
charge which was not proved beyond reasonable doubt. It was a complete mistrial
by the lower courts. I must stop here as nothing useful will be served in
moving forward in respect of other issues.
“The appeal is allowed as same
is, no doubt, meritorious. The judgment of the court below is accordingly set
aside. The appellant is hereby acquitted and discharged forthwith,” the court
stated.
Among those equally freed by the court were former Managing Director of
the NPA, Mr Aminu Dabo, Alhaji Abdullahi Aminu Tafida, Captain Oluwasegun
Abidoye, Alhaji Zanna Maidaribe and Mr. Sule Aliyu.
All of them were members of the
NPA board from 2001 to 2003 when it was dissolved by former President Olusegun
Obasanjo who also gave the EFCC the nod to prosecute them following allegation
that they not only exceeded the limit set for the board to award contracts, but
also conspired to bring the contracts within the limit of the board by
splitting them and inflating their prices.
Sequel to the testimony of 10
witnesses and proof of evidence that was adduced against the accused persons by
the EFCC, the Lagos High Court, found them guilty of conspiracy to disobey
lawful order and abuse of office contrary to sections 203 and 104 of the
Criminal Code.
Accordingly, the lower court
sentenced each of them to two years imprisonment without an option
of fine.
Dissatisfied with the verdict,
the accused persons, took the case before the Lagos Division of the Court of
Appeal, which on January 21, 2011, dismissed the appeal, pointing out that the
prosecution, did not need to prove intention to defraud before the conviction
of the appellants could be sustained.
Still not happy with the
decision of the appellate court, the accused persons, approached the Supreme
Court and contended that the essential ingredients of the offences alleged
by the EFCC, not having been proved, they were entitled to be acquitted, which
the apex court upheld.
Other justices that concurred
with the lead judgement were Mahmud Mohammed, Muhammad Saifullahi
Muntaka-Coomassie and Justice Nwali Sylvester Ngwuta.
In his verdict, Justice Aka’ahs,
further struck out Sections 104 and 203 of the Criminal Code, saying it
was at variance with Section 36(12) of the Constitution and therefore
unconstitutional , null and void.
“The charge filed under Sections
104 for abuse of office, 204 for disobedience to lawful order and 517 for
conspiracy to disobey lawful order ostensibly for contract splitting in
disobedience of lawful order by constituted authority cannot stand.
“The interpretation of a penal
legislation or any statute for that matter should not be left to the whims and
caprices of the judge called upon to interpret the legislation. Any conduct
which carries a sanction of imprisonment must be expressly stated in a written
law and not left to conjecture or inference by the court.
“In view of the fact that the
various counts in the charge sheet were based on the splitting of contracts
which was not an offence until 2007, the trial and conviction of the appellant
for actions taken between 2001 – 2003 cannot stand. The said trial and
conviction is declared a nullity.
“The conviction of the
appellants by the lower court which was affirmed…is hereby set aside. The
appellants are hereby set free,” the court added.
According to the Justices, this
was even as there was no evidence that the appellants derived any benefit from
what the NPA board did, “The evidence adduced on behalf of the prosecution is
to effect that the contracts awarded were appraised by experts employed by the
Authority who also recommended the contractors.
“None of the experts was
interviewed during investigation nor called to testify; neither were they
charged with any of the alleged offences. All the counts upon which the
appellants were found guilty alleged that they committed same with intent to
defraud the Authority. There was no evidence that the appellants derived any
benefit from what the Board did.
“The law was not made with
retroactive effect. It could not have been so in the face of the clear
provision of Section 36 (8) of the 1999 Constitution. This court, as the
guardian of the Constitution, will not allow such to happen.
“In view of the constitutional infraction, the entire trial, conviction and
sentence of the appellants remain a nullity and must be set aside, ” the court
added.
Meanwhile, human rights lawyer,
Bamidele Aturu has expressed dissatisfaction over the decision of the
apex court saying it will encourage corruption and demobilised the
anti-corruption crusaders in the country.
‘’It is a sad day for
Nigerians and democracy. My position is that while I respect the position
of the apex court, I absolutely disagree with it. It is going to
encourage corruption, it is going to license public officers to steal with
impunity, it is going to send a very wrong signals to the world on our fight
against corruption and it is going to demobilised the anti-corruption
crusaders.”
He added: “I am not sure the
Supreme court considered the decision very well. They argued it is based
on technicalities but we cannot allow technicalities to surpass moral
rectitude.
Nigerians have a right to
criticize it. It is really a sad day.”
However, Professor Pat Utomi in
his own submission opined that what is important is that the rule of law should
be allowed to flourish.
According to the management
expert: “The legal process has gone through, I don’t have any issue against it,
the important thing is for the system to work. Yes the fight against corruption
needs to be waged but if somebody is convicted incorrectly, the fight against
corruption does not mean you should send an innocent person to jail. The
important thing is that the rule of law works.”
Culled from Vanguard
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