The discharge and acquittal of Bode George

The Nigerian Judiciary over the last few years has come under considerable public focus on matters of alleged corrupt enrichment by some judges.

In the current political dispensation, however, the allegations of corrupt enrichment by judges of the various courts in the country have assumed disturbing proportions, even as the anti-corruption agencies, the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other Related offences Commission (ICPC) are accused by some people of looking the other way while high profile officials of the government are allegedly involved in corrupt practices.

Seven judges that are yet to be named by the EFCC are alleged to have acquired massive choice houses  and huge financial assets from suspicious transactions related to their handling of high profile political cases.

In the last few days however, the image of the Nigerian judiciary further nosedived going by the widely condemned decisions the Abuja High Court and the Supreme Court reached on two different corruption cases involving high profile individuals, one of them the chieftain of the ruling national party, the Peoples Democratic Party (PDP), Chief Bode George, and also the former minister of the Federal Capital territory Malam Nassir el Rufai who was cleared of alleged abuse of power while he held forth as the Minister of Federal Territory whereupon he was accused of illegally cornering public landed assets to his family members.

Of these two celebrated verdicts that were given last week, that of the Supreme Court came as a rude shock to most people because the impression it created is that provided anyone charged before the court of law has enough financial muscle to hire some of the most expensive lawyers, he will certainly be set free from allegations leveled against him.

The Supreme Court and the Abuja High Court’s verdicts given last week which exonerated Chief Bode George and El-Rufai have demonstrated that the judiciary is on trial, not necessarily through bribing the judges but through choreographed manipulation of the court system and setting up of some technical loopholes through which Nigerian judicial officers can hide to perpetrate any illegality in the name of technicality.

The nation’s highest court said Bode George was wrongly charged with contract splitting, an offence the apex court said was never an offence. But the question some people are asking is: what happens to the groundswell of allegations that contracts at the Nigerian Port Authority (NPA) were split and probably awarded to unqualified persons meaning that Nigeria may have lost huge revenue through this process?.

The Supreme Court, in setting aside the conviction of George, who was a former Chairman, Board of Directors of the Nigerian Ports Authority (NPA) and five former members of the board, subsequently quashed their conviction and discharged and acquitted them on charges of contract splitting.

At the Lagos High Court, George, architect Aminu Dabo, Captain Oluwasegun Abidoye, Alhaji Abdulahi Aminu Tafida, Alhaji Zanna Maidaribe and Engineer Sule Aliyu were on October 26, 2009 convicted and sentenced to 30 months imprisonment by Justice Olubunmi Oyewole.

They were tried and convicted under Sections 104, 203 and 517 of the Criminal Code Laws of Lagos State 2003 for offences relating to abuse of office, disobedience to lawful order issued by constituted authority and conspiracy to commit offence.

Specifically, George and others were alleged by the prosecution to have exceeded the limit of authority to award contracts by splitting them, while also inflating their prices. The case was brought by the Economic and Financial Crimes Commission (EFCC).

But the Supreme Court justices were unanimous in deciding that George and others were unjustly subjected to trial and conviction which they have already served at the Kirikiri Maximum Security Prisons in Lagos.

The court held that the offences for which the appellants were convicted were not known to law as at when the offences were said to have been committed. The question to be asked again is how did the Supreme Court reach its decision?

Why, for instance, was this not in issue but only resurfaced as a bone of contention at the Supreme Court, or are there certain information in that case that were hidden from the public at the lower court and Appeal Court?

For instance, media reports stated that Justice John Afolabi Fabiyi, who read the lead judgment in appeal SC/180/2012 filed by George, observed that even when the prosecution’s evidence showed that all the contracts awarded were appraised by experts employed by the Nigerian Port Authority (NPA) and that the experts recommended the contractors to which the contracts were awarded, the prosecution led by Festus Keyamo failed to either call any of the experts as witnesses or prosecute them.

The Supreme Court therefore held that Federal Government’s circular, which the appellants were accused of disobeying “stipulates that breach of same shall be met with disciplinary action. This may be in form of administrative action against an officer, who breaches the rules.”

Justice Fabiyi held that disobeying the directives in the circular marked exhibit P3 “is not made an offence by any Act of the National Assembly or law of a state House of Assembly or even the content of exhibit P3.”

According to the Supreme Court, section 203 of the Criminal Code of Lagos State, on which some of the charges were brought was not in tune with the provision of section 36(12) of the Constitution.

“In view of the constitutional infraction, the entire trial, conviction and sentence of the appellant remain a nullity and must be set aside,” Justice Fabiyi said. The decision in George’s appeal was applied to that of others except Tafida, who raised a separate constitutional issue in his appeal.

Justice Kumai Bayang Aka’ahs, who read the lead judgment in the appeal by Tafida, marked: SC/217/2012 also faulted the trial and conviction of the appellant.

“Contract splitting, which formed the basis of the offences charged, was unknown to law at the material time. The public procurement Act, which made contract splitting an offence punishable with term of imprisonment was enacted into law by the National Assembly in 2007 long after the appellant had ceased to be members of the NPA.

“The Act was not made to take retrospective effect. Even if this was the case, it would have been contrary to section 36(8) of the Constitution. Counts 59, 60, 64, 65 and 67 (of the charge) therefore constituted a gross violation of section 36(12) of the Constitution.

“Sections 104 and 203 of the Criminal Code are at variance with section 36(12) of the Constitution. They are therefore unconstitutional and are declared null and void.

“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 written law and not left to conjecture or inference by the court,” Justice Aka’ahs held.

He consequently nullified the trial and conviction of the appellant.

This decision of the Supreme Court has not been well received by many who believe that technicality ought not to have taken the better side of the approach adopted by the justices but that the Supreme Court ought not to have provided the impression that the judiciary should close her eyes to grand scale allegations provided the framing of the charges does not meet up with extant charges in the laws of the land.

Another curious judgement is that of the Abuja High court which set the former minister free even when findings appear to show that actually government landed assets belonging to the now defunct Nigerian Electricity Company were revoked and allegedly cornered by former minister’s cronies. The Nigerian Judiciary over the last few years has come under considerable public focus on matters of alleged corrupt enrichment by some judges.

In the current political dispensation, however, the allegations of corrupt enrichment by judges of the various courts in the country have assumed disturbing proportions, even as the anti-corruption agencies, the Economic and Financial Crimes Commission (EFCC) and the Independent Corrupt Practices and other Related offences Commission (ICPC) are accused by some people of looking the other way while high profile officials of the government are allegedly involved in corrupt practices.

Seven judges that are yet to be named by the EFCC are alleged to have acquired massive choice houses  and huge financial assets from suspicious transactions related to their handling of high profile political cases.

In the last few days however, the image of the Nigerian judiciary further nosedived going by the widely condemned decisions the Abuja High Court and the Supreme Court reached on two different corruption cases involving high profile individuals, one of them the chieftain of the ruling national party, the Peoples Democratic Party (PDP), Chief Bode George, and also the former minister of the Federal Capital territory Malam Nassir el Rufai who was cleared of alleged abuse of power while he held forth as the Minister of Federal Territory whereupon he was accused of illegally cornering public landed assets to his family members.

Of these two celebrated verdicts that were given last week, that of the Supreme Court came as a rude shock to most people because the impression it created is that provided anyone charged before the court of law has enough financial muscle to hire some of the most expensive lawyers, he will certainly be set free from allegations leveled against him.

The Supreme Court and the Abuja High Court’s verdicts given last week which exonerated Chief Bode George and El-Rufai have demonstrated that the judiciary is on trial, not necessarily through bribing the judges but through choreographed manipulation of the court system and setting up of some technical loopholes through which Nigerian judicial officers can hide to perpetrate any illegality in the name of technicality.

The nation’s highest court said Bode George was wrongly charged with contract splitting, an offence the apex court said was never an offence. But the question some people are asking is: what happens to the groundswell of allegations that contracts at the Nigerian Port Authority (NPA) were split and probably awarded to unqualified persons meaning that Nigeria may have lost huge revenue through this process?.

The Supreme Court, in setting aside the conviction of George, who was a former Chairman, Board of Directors of the Nigerian Ports Authority (NPA) and five former members of the board, subsequently quashed their conviction and discharged and acquitted them on charges of contract splitting.

At the Lagos High Court, George, architect Aminu Dabo, Captain Oluwasegun Abidoye, Alhaji Abdulahi Aminu Tafida, Alhaji Zanna Maidaribe and Engineer Sule Aliyu were on October 26, 2009 convicted and sentenced to 30 months imprisonment by Justice Olubunmi Oyewole.

They were tried and convicted under Sections 104, 203 and 517 of the Criminal Code Laws of Lagos State 2003 for offences relating to abuse of office, disobedience to lawful order issued by constituted authority and conspiracy to commit offence.

Specifically, George and others were alleged by the prosecution to have exceeded the limit of authority to award contracts by splitting them, while also inflating their prices. The case was brought by the Economic and Financial Crimes Commission (EFCC).

But the Supreme Court justices were unanimous in deciding that George and others were unjustly subjected to trial and conviction which they have already served at the Kirikiri Maximum Security Prisons in Lagos.

The court held that the offences for which the appellants were convicted were not known to law as at when the offences were said to have been committed. The question to be asked again is how did the Supreme Court reach its decision?

Why, for instance, was this not in issue but only resurfaced as a bone of contention at the Supreme Court, or are there certain information in that case that were hidden from the public at the lower court and Appeal Court?

For instance, media reports stated that Justice John Afolabi Fabiyi, who read the lead judgment in appeal SC/180/2012 filed by George, observed that even when the prosecution’s evidence showed that all the contracts awarded were appraised by experts employed by the Nigerian Port Authority (NPA) and that the experts recommended the contractors to which the contracts were awarded, the prosecution led by Festus Keyamo failed to either call any of the experts as witnesses or prosecute them.

The Supreme Court therefore held that Federal Government’s circular, which the appellants were accused of disobeying “stipulates that breach of same shall be met with disciplinary action. This may be in form of administrative action against an officer, who breaches the rules.”

Justice Fabiyi held that disobeying the directives in the circular marked exhibit P3 “is not made an offence by any Act of the National Assembly or law of a state House of Assembly or even the content of exhibit P3.”

According to the Supreme Court, section 203 of the Criminal Code of Lagos State, on which some of the charges were brought was not in tune with the provision of section 36(12) of the Constitution.

“In view of the constitutional infraction, the entire trial, conviction and sentence of the appellant remain a nullity and must be set aside,” Justice Fabiyi said. The decision in George’s appeal was applied to that of others except Tafida, who raised a separate constitutional issue in his appeal.

Justice Kumai Bayang Aka’ahs, who read the lead judgment in the appeal by Tafida, marked: SC/217/2012 also faulted the trial and conviction of the appellant.

“Contract splitting, which formed the basis of the offences charged, was unknown to law at the material time. The public procurement Act, which made contract splitting an offence punishable with term of imprisonment was enacted into law by the National Assembly in 2007 long after the appellant had ceased to be members of the NPA.

“The Act was not made to take retrospective effect. Even if this was the case, it would have been contrary to section 36(8) of the Constitution. Counts 59, 60, 64, 65 and 67 (of the charge) therefore constituted a gross violation of section 36(12) of the Constitution.

“Sections 104 and 203 of the Criminal Code are at variance with section 36(12) of the Constitution. They are therefore unconstitutional and are declared null and void.

“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 written law and not left to conjecture or inference by the court,” Justice Aka’ahs held.

He consequently nullified the trial and conviction of the appellant.

This decision of the Supreme Court has not been well received by many who believe that technicality ought not to have taken the better side of the approach adopted by the justices but that the Supreme Court ought not to have provided the impression that the judiciary should close her eyes to grand scale allegations provided the framing of the charges does not meet up with extant charges in the laws of the land.

Another curious judgement is that of the Abuja High court which set the former minister free even when findings appear to show that actually government landed assets belonging to the now defunct Nigerian Electricity Company were revoked and allegedly cornered by former minister’s cronies.

By Mr Onwubiko  Head, Human Rights Writers 

Association of Nigeria