By IKECHUKWU NNOCHIRI, Abuja
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.”