By ABDULWAHAB ABDULAH

Bode George, who was sentenced to a two-year jail term alongside five  members of the Board of NPA by Justice Joseph Oyewole, was arraigned by the Economic and Financial Crimes Commission, EFCC, on August 8, 2008  on a 163-count charge bordering  on alleged abuse of office and award of about N100 billion contracts without due process.

The arraignment followed an investigation  by EFCC then under Malam Nuhu Ribadu.  Bode George and the other suspects  pleaded not guilty. However, on October 24, 2008, EFCC reduced the charges to 68.

The convicts were said to have inflated NPA contract prices contrary to Section 22 (3) of the Corrupt Practices and Other Related Offences Act, 2000. In his judgment, Justice Joseph Oyewole held that EFCC proved, beyond reasonable doubt, that George, a former deputy national chairman of the Peoples Democratic Party (PDP), abused his office.

He faulted the argument by the lawyers to the convicts — Mr. Joe Gadzama, Mr. Tunji Ayanlaja, and Mr. Dele Adesina — that individual actions and criminal liability for corporate conduct were not close.Oyewole held inter alia, that “The corporate shield for personal criminal liability is no longer impregnable. Apart from the fact that the individual director could be held personally liable for criminal infractions personally committed by him in office, where the conduct was attributed to the company he acted for, the corporate veil could be lifted and where he is identified as the directing mind of the corporate entity, he could face penal sanctions.

“Whereas the penalty on conviction for corporate bodies used to be simply fines, there is a shift especially concerning serious offences that go beyond regulatory matters, for directing minds of the corporate entity to be identified and made to serve prison terms while the company as an entity is fined.”

The convicts were said to have inflated the price of the contract awarded to Kalmer West Africa Limited for the rehabilitation of accidented Kalmar Container Handler from €215,555.52 (being the prevailing price at the time of the award of the contract) to €269,965.71.

Oyewole said, “In the circumstances, I hold that the defendants as persons who served as directors of a public corporation, the NPA, are properly before the court in that capacity and are consequently public officers within the contemplation of the Corrupt Practices and Other Related Offences Act.

“I, therefore, hold that the defendants could be competently tried and if found guilty convicted for any alleged criminal infraction said to have been committed by them while serving as directors of the NPA.

“As appointees of the President of Nigeria, the defendants are subject to his direct and indirect authority. The authority behind the circular exhibit P3 extends not only to the President but ultimately to the constitution of the Federal Republic of Nigeria. The defendants cannot claim to be more Catholic than the Pope.

“While infallibility is beyond any man, the overall mandate to administer the polity, including the NPA, is that of the President and where government functionaries are at liberty to apply or reject government policies as they so will, anarchy would ensue. Such is a manifestation of a failed state.”

After his conviction, Bode George and the other convicts headed to the Court of Appeal to review their conviction to set them free. But  they lost, as the Appeal Court in Lagos affirmed the verdict of the trial court. The lead judgment was  read by Justice Clara Ogunbiyi,  which was  in agreement with the verdict of the other two judges, Raphael Agbe and Adamu Juro. All the four issues canvassed by the judges were resolved against them.

On the issue of jurisdiction, the appellate court said the matter could have been raised at the trial court and the attorney-general of the federation had to delegate his power to any lawyer to prosecute any case.

On the second issue of disobedience of lawful order,  whereby the appellants contended that the order was a mere guideline from the minister of transport,  the court held that in perusing the record of the trial, it was clearly shown that the directive from the minister emanated from the decision taken by the Federal Executive Council  meeting. Therefore, it was not a mere administrative order. On the issue of conspiracy, the appellate court said it was clear before the trial court that board meetings were held by the convicts where decisions were taken to split contracts. Therefore, the convicts are liable.

The trial court delivered its judgment on Monday, October 26, 2009.