Lagos
lawyer and activist Femi Falana (SAN) criticises the Supreme Court judgment
which quashed the conviction of Peoples Democratic Party (PDP) Chief Bode
George.
In criticising the lack of commitment of the Goodluck Jonathan
Administration to the anti-corruption crusade
commentators have often failed to pay sufficient attention to
the penchant of Nigerian courts to dismiss corruption cases on the altar of
technicalities. It is on record that many corruption cases filed against
members of the ruling class by the anti-graft agencies have been dismissed in
the last few weeks on flimsy grounds. On the contrary, the courts have had no
difficulty in convicting petty criminals and sentencing them to long terms of
imprisonment for stealing telephone handsets, bush meat, tubers of yam etc on
account of poverty. In reviewing the anti-corruption war, therefore, the class
character of the nation’s neo-colonial legal system should always be taken into
consideration.
Last month, the case involving the missing hundreds of millions
of naira from the Universal Basic Education Fund was struck out by the Federal
High Court. A fortnight ago, the Lagos Division of the Court of Appeal struck
out the criminal case filed against some bank chiefs by the EFCC on the ground
that the Lagos State High Court lacks the jurisdiction to try them for
allegedly stealing billions of Naira through the manipulation of the capital
market. On December 13, 2013, the Federal Capital Territory High Court struck
out the charge of stealing government land and allocating same to his wife and
other family members filed against Mr. Nasir El-Rufai when it upheld his no
case submission while the Supreme Court discharged and acquitted Chief Olabode
George and other former members of the Nigeria Ports Authority on the ground
that the offence of contract splitting was unknown to law at the material time.
This review is limited to the case of Chief Olabode George &
co. for two reasons. Firstly, the EFCC has decided to appeal against the
judgments, which freed the other accused persons. Secondly, the verdict of the
Supreme Court has serious implications for the nation’s criminal law
jurisprudence. More so, that the finding of the apex court that the appellants
were tried and convicted for contract splitting is not borne out of the records
of both the trial court and the Court of Appeal. In other words, the Lagos High
Court had convicted them of the offences of abuse of powers and disobedience to
lawful order contrary to sections 104 and 203 of the Lagos State Criminal Code.
However, while congratulating the appellants on removing the stigma of infamy
from their names it cannot be denied that the outcome of the case is a major
setback for the anti corruption crusade.
The right to criticise court judgments
Before one is accused of committing contempt of court for
commenting on the controversial judgment, it is pertinent to point out that the
right to criticise the judgments of courts is part of the fundamental right of
every citizen to freedom of expression guaranteed by section 39 of the
Constitution. Accordingly, the Supreme Court has always welcomed a constructive
criticism of its decisions having regards to their finality and overall impact
on the nation’s legal system. In Adegoke Motors v Adesanya (1989) 3 N.W.L.R.
(Pt 109) 250 at 274-275, the reverred Chukwudifu Oputa J.S.C alluded to the
finality of the decisions of the Supreme Court when he said that “we are final not
because we are infallible, rather we are infallible because we are final.
Justices of this Court are human beings capable of erring. It will be
shortsighted arrogance not to accept this obvious truth”.
In the same vein, the late Justice Kayode Eso said in the case
of Adigun v Governor of Oyo State (No 2) 2 N.W.R (Pt 56) 197 at 214-215 that
“the decision of the Supreme Court is final. Final in the sense of real
finality in so far as the particular case before it is concerned. It is final
forever, except there is legislation to the contrary, and it has to be a
legislation ad hominem”. In recognition of the enormous powers of the apex
court Justice Eso was of the view that “It is such dread powers that must
necessitate great care in the calibre of the Court and such dread that must
necessitate pungent and constructive analytical criticism of every judgment of
the Court in the law journals and similar fora”. In reaction to the view of
some judges and lawyers that it is contemptuous to subject decisions of courts
to criticism Justice Eso stated that “the judgment of a court should not be
treated with sacred sanctity, once it gets to the right critical forum”.
Where the supreme court erred in law
In the case of Chief Bode George & co. the appellants were
tried, convicted and sentenced to various prison terms by the Lagos High Court
on October 26, 2009 for abuse of powers and disobedience of lawful orders.
Completely displeased with the verdict, the appellants challenged it on appeal.
In its considered judgment delivered on January 21, 2011, the Court of Appeal
affirmed the judgment of the learned trial judge, Olubunmi Oyewole J. Still
dissatisfied the appellants further appealed to the Supreme Court. In its
judgment handed down a fortnight ago the Supreme Court set aside the concurrent
findings of both the Lagos High Court and the Court of Appeal with respect to
the conviction of the appellants.
In discharging and acquitting them the apex court held that the
offence of contract splitting was unknown to law at the time the appellants
were tried and convicted by the Lagos High Court. In his leading judgment the
Honourable Justice John Afolabi Fabiyi held inter alia: “It occurred to me that
Section 203 of the Criminal Code is not in tune with the dictate of Section 36
(12) of the 1999 Constitution. That being the position, the charges filed under
section 203 of the said Code ostensibly for splitting contract in disobedience
of lawful order by constituted authority cannot stand … I say it with utmost
confidence that the same position applies to the provision of Section 104 of
the said Criminal Code. Acts said to have constituted arbitrary acts resulting
in abuse of office are splitting of contracts which were not offences known to
law at the material time.”
It is submitted, without any fear of contradiction, that the
appellants were not charged for contract splitting by the Economic and
Financial Crimes Commission but for “abuse of powers” and “disobedience of
lawful order” contrary to sections 104 and 203 of the Criminal Code of Lagos
State respectively. In summarising the unassailable judgment of the learned
trial judge, Clara Ogunbiyi JCA (as she then was) had, in her lead judgment,
said the appellants were arraigned “on 68 counts of offences bordering on
inflation of contracts, conspiracy to disobey lawful orders and abuse of office
…”
Since both sections 104 and 203 have been part of the Criminal
Code as far back as 1914 it is unbelievable that the Supreme Court held that
the appellants were charged under an unknown law. The crime of disobedience to
lawful order by splitting contracts was not unknown before the enactment of the
Public Procurement Act, 2007. In the instant case, contract splitting was a
particular of the offence and not the offence alleged against the appellants.
But for some inexplicable reasons, the apex court substituted the particular
for the offence and arrived at a wrong conclusion. Curiously, the Supreme Court
conveniently ignored the finding of the Court of Appeal that the appellants
violated sections 104 and 203 of the Criminal Code when they awarded contracts
beyond their approval limits which was “borne out by evidence from all the
witnesses on both sides”.
Although it has been established in a plethora of cases decided
by the Supreme Court that an appellate court has no power to disturb the
finding of a lower court which is not challenged on appeal. But for reasons
best known to the apex court it decided to depart from the settled principle of
law in discharging and acquitting the appellants. From the record of appeal it
is indisputable that the Court of Appeal had unanimously agreed with the
prosecution that the intention to defraud the nation was proved beyond
reasonable doubt by the conduct of the appellants who consistently approved
contracts of several billions of naira beyond their approval limit. There was
not a single ground of appeal that attacked that particular crucial finding of
the lower court. Yet the Supreme Court decided, albeit illegally, to tamper
with the finding of the court below and proceeded to hold that the prosecution
failed to prove the guilt of the appellants.
The most embarrassing aspect of the judgment was that the
Supreme Court annulled two provisions of the Criminal Code of Lagos without
hearing from the Attorney-General of Lagos State in line with established
practice. With profound respect to their Lordships there is no legal
justification whatsoever for declaring sections 104 and 203 of the Criminal
Code illegal and unconstitutional. No doubt, the attention of the apex court
was not drawn to the undeniable fact that Section 104 of the Criminal Code is
in pari materia with Section 9 of the Code of Conduct for Public Officers set
out in Part 1 of the Fifth Schedule to the Constitution which has created the
offence of abuse of power. Therefore, Section 104 of the Criminal Code cannot
be said to be unconstitutional since the same Constitution has created the
offence of “abuse of powers”.
Conclusion
As the verdict of the apex court was based on wrong legal
foundation its validity remains questionable. Although the appellants have been
exculpated, it is hoped that the Supreme Court will soon have another
opportunity to reverse the highly erroneous judgment so as to restore sections
104 and 203 of the Lagos State Criminal Code which were struck down for no
justifiable legal reasons. However, the case of Chief Bode George & co.
should not be treated in isolation as it is now the trend to strike out or
dismiss charges filed against members of the bourgeoisie. To that extent, decision
of the Supreme Court should be seen as an audacious expression of class
solidarity.
Perhaps, majority of Nigerians are not aware of the fact that
out of the over 400 convictions which the EFCC has secured in the 10 years of
its existence, only four members of the political class have been successfully
prosecuted through dubious plea bargain deals. In the circumstance, instead of
wasting the meagre resources allocated to the anti-graft agencies on securing
convictions which are going to be set aside in favour of members of the ruling
class it is high time the Federal Government stopped charging politically
exposed persons and other influential criminal suspects to court. In the
atmosphere of impunity in the land judges should equally stop the immoral
practice of railroading petty criminals to jail.
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