Abidoye Vs Federal Republic Of Nigeria (2013)
LAWGLOBAL HUB Lead Judgment Report
NWALI SYLVESTER NGWUTA, JSC
This is one of the six appeals brought against the judgment of the Lagos Division of the Court of Appeal which affirmed the judgment of the High Court of Lagos State, Ikeja Judicial Division.
Appellant and five others and others said to be at large were arraigned on information containing 163 counts before the Ikeja Division of the High Court of Lagos State on 8th August, 2008. First and second accused persons before the trial Court were the Chairman, Board of Directors of Nigerian Ports Authority and Managing Director of the Nigerian Ports Authority, respectively. Appellant as 3rd accused, and 4th 5th and 6th accused persons (now appellants) were members of the Board of Directors of Nigerian ports Authority. Each pleaded not guilty to each of the 163 counts of the information.
On 24th October, 2008 the information was amended by withdrawal of some of the counts therein contained. The amended information had 68 counts and each of the accused persons (now appellants) including the appellant herein pleaded not guilty to each count of the amended information.
For ease of reference, the 68 counts of the amended information can be split into the following four groups:
Offences contrary to section 22(3) of the Corrupt Practices and Other Related Offences Act, 2000: Counts 1-7.
Conspiracy to disobey lawful order issued by constituted authority contrary to section 517 of the Criminal Code Cap 32 Vol. 2 Laws of Lagos State of Nigeria 1994: Count 8.
Disobedience of lawful order issue by constituted authority contrary to section 203 of the Criminal Code Cap 32 Vol. 2 Laws of Lagos State of Nigeria 1994: Counts 9-57.
Abuse of office contrary to section 104 of the Criminal Code Cap. 32 Vol. 2, Laws of Lagos State of Nigeria 1994: Counts 58-68. Though intention was not included as an element of any of the
offences charged in the first group, Counts 1-7, a golden thread which runs through the particulars in Groups 2-4, that is, Counts 8-68 of the amended information is the phrase “with intention to defraud”. In proof of its case, the prosecution called ten witnesses. The only witness for the defence was the 1st accused (now appellant) in Appeal No. SC.180/2012 who testified for himself and for his co-accused persons
In an 111 page judgment delivered on 26th October, 2009 the learned trial Judge, Oyewole J, found each of the six accused persons,including the appellant, who was the 3rd accused person, not guilty in each of Counts 1, 2, 3, 4, 5, 6, 7, 13, 14, 17, 18, 30, 31, 45, 47, 48, 58,62, 63, 66 and 68 and acquitted and discharged each of them on each of the counts accordingly.
His Lordship, however, found each of the accused persons,including the 3 accused (now appellant) guilty as charged in each of
Counts 8, 9, 10, 11, 12, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29,32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 49, 50, 51, 52, 53,54, 55, 56, 57, 59, 60, 61, 64, 65 and 67 and convicted each of the accused on each count.
In passing sentence on the convicts, the learned trial Judge said:
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“I have duly considered the passionate allocutus of the defence Counsel and the entire circumstances of this case and also the submissions of the prosecution in this regard. Counts 8, 9, 10, 11, 12, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 49, 50, 51, 52, 53, 54, 55, 56 and 57 in respect of which the defendants were convicted for disobedience to lawful order, carries a maximum sentence of one year. Considering the total circumstances relating thereto each of the defendants is hereby sentenced to 6 months imprisonment in relation thereto. Counts 59, 60, 61, 64, 65 and 67 however relate to abuse of office. When public office is abused, the entire populace is assaulted. This must not be condoned or
service in our public life is to attain to appreciable standards of the civilized world. For the right deterrence to be served therefore sufficient firmness must be demonstrated. In the circumstances therefore each of the defendants is hereby sentenced to 2 years imprisonment on each of counts 59, 60, 61, 64, 65 and 67 respectively. Sentences shall run concurrently without option of fine.”
Both the appellants and the prosecution were dissatisfied with the judgment of the trial Court, with the appellants challenging their conviction and sentence before the Lagos Division of the Court of Appeal and the prosecution challenging the discharge and acquittal of the appellants in Counts 1-7 of the amended information.
In its judgment delivered on the 21st day of January 2011, the lower Court unanimously dismissed the cross-appeal in the following terms:
“The learned trial Judge has in a nutshell said it all and I will therefore say no more. The cross-appeal at hand is devoid of any merit and it is dismissed while the conclusion arrived at by the lower Court on discharging and acquitting the appellants on Counts 1-7 of the amended information clearly with inflation of contract prices contrary to Section 22 (3) of the Corrupt Practices and Other Related Offences Act, 2000 is affirmed. The cross-appeal is therefore dismissed.”
In the main appeal, their Lordships of the Court below concluded
“On the totality of the main appeal by the 1st, 2nd, 3rd, 4th, 5th and 6th appellants, it is devoid of any merit and is hereby dismissed. In the same vein the cross-appeal by the cross-appellant also fails and is dismissed. The judgment of the lower Court delivered on 26th October, 2009 by Honourable Justice Oyewole of the High Court, Lagos State, Ikeja Division is hereby affirmed.”
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As indicated earlier in this judgment, there are six appeals against the judgment of the Court below. Each of the six appellants in the Court below filed his own separate appeal before this Court and each filed his separate brief of argument. Learned Counsel for the Respondent filed a response to each appellant brief.
I have read the processes filed by the 1st and 2nd and 4th to 6th appellants and I see no material difference between them and the process filed and relied on by the appellant herein. In particular, the grounds of appeal, the issues formulated for determination, the brief and reply brief in Appeal No. SC.180/2012 filed by Chief Bode George, are the same as in this appeal. I have had the opportunity of considering the exhaustive reasons prepared by my learned brother, Fabiyi, JSC in his lead judgment in SC.180/2012 and I am in complete agreement with the views expressed.
Since the grounds of appeal, the issues for determination and the arguments in the briefs are the same as in this appeal, I adopt wholly the lucid reasoning and conclusion reached in SC.180/2012 and apply same to this appeal. I desire to add a few brief observations by way of comment on the counts of the information as amended rather than a resolution of particular issue raised as the issues have been adequately resolved in the sister case based on the same law, circumstances and facts.
I will start with the particulars of the Counts in the amended information laid against the appellant. Running through the particulars of each count of the amended information laid against the appellant as a golden thread is the phrase “with intent to defraud”. Briefly put, appellant’s case is that the prosecution having made intention to defraud an element of the offence with which the appellant was charged, it was incumbent that the said element be proved beyond reasonable doubt.
In reply, the learned Counsel for the Respondent launched a two-pronged attack. He argued that the Court below concluded that intention to defraud was proved and that the appellant did not appeal against the finding that intention to defraud was proved. Learned Counsel reproduced pages 3608 and 3609 of the record to support his contention that the lower Court came to the conclusion that intention to defraud as an element of the offence with which the appellant was charged was proved:
“The learned Respondents Counsel in his submission has urged the Court to reason with the Respondents that the only rationale purpose why the Executive Arm of Government put in place various lawful orders regarding the award of contracts and the public procurement of goods and services is to check or curtail the endemic cases of corruption in public office. That the lawful orders are not issued for fun and that the disobedience of those lawful orders by abusing the authority of public office will lead to the
natural inference that the perpetrator is engaged in corrupt practices, which the lawful orders, in the first place, are intended to check. I would not have agreed more with the submission by the learned respondent’s counsel. This is especially having regard to the spirit of Exhibit 3 at paragraph 1 and 2 page 2 which reproduction state as follows: NEW POLICY GUIDELINES FOR PROCUREMENT AND AWARD OF CONTRACTS IN GOVERNMENT MINISTRIES/PARASTATALS. In pursuance of this Administration’s desire to ensure accountability, efficiency, probity and transparency in all facets of governance, the Federal Executive Council at its held meeting vide EC(2001) 3 of Wednesday, 17th January 2001 approved some reform measures in Government procurement and contract award processes to meet international standards.
(2) After extensive consultations with stakeholders, the following guidelines are hereby issued to fully implement the new government policy.”
With profound respect to learned Counsel for the Respondent, the portion of the judgment of the Court below reproduced above does not, in any way, even by inference, show that the Court of Appeal concluded that intention to defraud as an element of the offences with which the appellant was charged was proved. In my considered view, the argument of learned Counsel for the Respondent is an attempt to read into that portion of the judgment of the Court below what it does not contain. The measures put in place “to ensure accountability,
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efficiency, probity and transparency in all facets of governance” have no bearing whatsoever on the proof vel non of intention to defraud as contained in the particulars of the offences with which the appellant was charged.
Contrary to the argument of learned Counsel for the prosecution to the effect that the lower Court came to the conclusion that “intent to defraud” as an element of the offences charged was proved, the lower Court actually held that “intent to defraud” was not an element of the offences charged and so the prosecution was not bound to prove same. This formed the complaint in ground one of the appellant’s grounds of appeal to this Court.
The second point of argument of learned Counsel for the Respondent is that “the appellant never appealed against that conclusion of fact by the Court of Appeal”. Since the Court of Appeal never reached the conclusion that intent to defraud as an element of the offences charged was proved, the appellant has no business appealing against a finding that was never made.
Be that as it may, the appellant, in his ground one of the grounds of appeal did complain that the lower Court erred when it upheld his conviction on the grounds that intent to defraud was not an ingredient stipulated in the offence charged. Ground one of the grounds of appeal and its particulars are hereunder reproduced for ease of reference: “GROUNDS 1 – ERROR IN LAW:
The Court below erred in law when it upheld the conviction of the 3rd Appellant on all the counts of information even though it was evident that the prosecution had failed to prove
all the ingredients of the offences as charged because, in the opinion of their Lordships, the onus upon the prosecution to prove the ingredients of the offences charged was limited to those ingredients stipulated in the statute creating the offences and the prosecution was not bound to prove any other ingredients included in the charge over and above those provided for in the statute creating the offences.
PARTICULARS OF ERROR
Having made intention to defraud an element of the offences charged, the prosecution was bound to prove that element in the light of the decision of the Supreme Court in Agumadu v. The Queen (1963) 1 All NLR 203 to the effect that the onus is upon the prosecution to prove the offences as charged irrespective of the provisions of the statute creating the offence.
The 3 Appellant suffered grave prejudice from the inclusion by the prosecution of intention to defraud as an element of the offences charged knowing beforehand that the Appellant acted with no such intention and this prejudiced the minds of the learned trial Judge and the Court below in coming to a decision against the 3rd Appellant.
iii. The prosecution thereby exploited unduly the popular prejudice against public office holders that they are dishonest and corrupt – a thing which their Lordships reiterated in their judgment.”
As a matter of fact, rather than coming to the conclusion that theprosecution proved intention to defraud as contended by learned Counsel for the Respondent the lower Court was of the view that the prosecution was not bound to prove an element not stipulated in the statute creating the offence even though the intention to defraud is included in the charge as laid. In other words, the Court of Appeal was of the view that the prosecution is only bound to prove the charge as created by statute and not as laid against the appellant. And ground one reproduced above is a complaint against the decision of the Court
below on proof of intention to defraud.
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Learned Counsel for the Respondent, as an alternative, relied
heavily on the decision of the Court below to the effect, inter alia, that:
“without belabouring the point of the said phrase ‘intention to defraud’ is not an ingredient of the offences with which the appellants were charged. The law is trite and as rightly submitted by the learned Respondent’s Counsel that it is the ingredients of the offence that the respondent is required to prove at the trial. Whatever else is not contained in the law creating the offences is foreign and lays no duty of proof on the prosecution”.
In effect, learned Counsel for the Respondent drew a distinction between the offfences as charged and the offences as created by the relevant statutes and argued to the effect that the prosecution has a duty to prove the ingredients of the offences as contained in the statutes creating them irrespective of whatever other ingredients are included in, or by implication, omitted from the offences as created by statute. And the lower Court agreed with the learned Counsel for the Respondent in his specious argument.
Section 151 (4) of the Criminal Procedure Law of Lagos State Cap C18 provides:
“The fact that the charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case.”
The implication of the subsection 4 of Section 1 reproduced above is that once a charge is laid, it is deemed that all the ingredients included in the particulars are needed to prove the charge and any ingredient omitted is not necessary. In my humble view, the prosecution cannot default in proving any ingredient included in the particulars of the offence charged, nor can he offer proof of an ingredient omitted from the particulars of the offence without first of all seeking leave to amend and amending the information laid against the accused.
In the case at hand, there was no amendment of the amended information to expunge the phrase “intention to defraud” if it is not an ingredient of the offence charged nor was there amendment to add a new ingredient. It therefore follows that contrary to the views of the lower Court, the prosecution is bound to prove every ingredient of the offence as laid and not the ingredients of the offence as created, having jettisoned the latter in favour of the former. See Agumadu v. The Queen (1963) 1 All NLR 203 relied on by the Appellant.
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In his relentless pursuit of perfection, learned Counsel for the Respondent examined his 163 Count information with the merciless scrutiny of a recording angel. The result was a down-scaling of the Counts from 163 to 68. The phrase “with intent to defraud” in the original information survived the amendment.
Though learned Counsel for the Respondent never conceded directly that he was mistaken on the legal constituent elements of the
offences charged, it appears from the facts of the case that he inserted the phrase deliberately to aggravate the crime charged or he did so in error. If the former is the case, he had a duty to discharge the burden he assumed of proving the intention to defraud as an element of the offence charged. If the latter is the case, ignorance of the law does not excuse any man. The reason is not that all men know or ought to know the law, rather it is because it is an excuse everyone will plead or rely on and such plea is not refutable by anyone.
Without a formal amendment of the charge before it, a Court has no duty or right to edit the particulars of the offence to determine what element the prosecution should prove and what of the elements it need not prove. The duty of a Judge is limited to deciding the issue in dispute based on what is alleged and what is proved, bearing in mind the applicable law.
In deciding, without amendment of the charges, that the prosecution need not prove the element it made a constituent of the offence charged, the two Courts below seemed to have abandoned their roles as arbiters and descended into the arena of conflict on the side of the prosecution, thereby compromising their impartiality.
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The prosecution cannot enjoy the liberty of subjecting the accused person to additional burden not placed on him by the statute creating the offence with which he is charged and proceeding to trial without amending the charge to exclude the ingredient which the lower Court said he is not bound to prove. The appellant was not informed he did not have to defend the charges as laid. Above all, the conviction of the appellant on the charge as laid in contrast to the charge as created, portrayed the appellant to the general public as a dishonest and fraudulent person who should not have been entrusted with public office. The fact that the prosecution did not have to prove that the appellant acted with intent to defraud is completely irrelevant to the perception of the public of the appellant as a thief.
In the case of Asuquo v. The State (1967) 1 All NLR 123, it was held that in the particulars of the offence, the words used in the section of the statute creating the offence ought to be used but that a charge is not bad for non-compliance if the accused is not misled. See Essien v. IGP (1996) 5 NWLR (Pt. 449) 489 at 499. That fraudulent intention ought to have been proved as alleged.
Can it be said, on the facts of this high profile case, that the appellant was not misled by the imposition on him of additional and unnecessary burden to contend with? The answer is obvious. The actions of the appellant are under scrutiny not as criminal acts as alleged per se, but as criminal acts tainted further with fraudulent intention.
In my view, the inclusion of ingredients or elements in the particulars of offence which are not required by the facts of the case and particularly by the section of the law creating the offence is as bad as omission of ingredients required by the facts and section of the statute creating the offence. In either case, a conviction of the accused, without an amendment of the charge, cannot be said to be founded on proof of the offence charged, as distinct from the offence created by Statute.
This is not a case of a formal defect on the face of a charge against which objection should have been raised at the reading of the charge as provided in Section 167 of the Criminal Procedure Law of Lagos State. It is a case of the prosecutor, in attempt to stir up and build public discontent against the appellant as a thief, created and charged the appellant with offences different from the offences created by the Sections of the Statutes pursuant to which he purported to charge the appellant.
In any case, the appellant as an accused person was entitled to presumption of innocence and the right to remain silent. Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 provides:
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S.36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:
Provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.”
No law imposes on an accused person a duty of proving that the particulars in the offences with which he was charged had imported into them a foreign element in the form of “with intention to defraud” vis-a-vis the Sections of the Statutes creating the offences charged.
Also Section 36 (1) of the Constitution, supra, provides:
“S.36 (1) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.”
An accused person is a competent but not compellable witness at his trial. He cannot be compelled to give evidence and in the same vein, and on the facts of this case (see the presumption in s.151 (4) FCPL Lagos), he is not bound to raise objection to the charge laid against him. He is entitled to remain silent and demand of the prosecution a proof beyond reasonable doubt of every element constituting the offence with which he is charged irrespective of the element of the offence as created by Statute.
The conviction of the appellant on the charges with the imported ingredient of “with intent to defraud” and without proof of the avered intent resulted to socio-economic injustice to the appellant whose social standing and credit in the society have been recklessly impugned.
The inclusion of the phrase “with intent to defraud” in the particulars of the offence with which the appellant was charged and upon which he was tried and convicted and sentenced, rendered the charges not sufficiently explicit in the circumstances to give the appellant proper notice of the exact offences with which he was charged. See R v. Abion (1936) 3 WACA 40.
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Any mistake in the particulars of offence in a charge shall lead any conviction based on such charge to be quashed on appeal. See Okeke v. IGP (1965) 2 All NLR 81; The Queen v. Gbadamosi (1959) 4 FSC 181. The elements or ingredients which constitute the offence charged must be explicit and not left to speculation or inference. The requirement that essential elements be disclosed implies that non-essential ingredients be excluded from the particulars of the offence with which any person is charged.
Section 36 (6) of the Constitution, supra, provides inter alia:
S.36 (6): Every person who is charged with a criminal offence shall be entitled to:
(a) be informed promptly in the language that he understands and in detail of the nature of the offence.”
The requirement that the accused person be informed in detail of the nature of the offence with which he is charged prohibits the prosecutor from misinforming the accused of the details of the nature of his offence as was done in this case by importation into the particulars of the charges of extraneous ingredient of “with intent to defraud”. See Mechchl Disciplinary Tribunal v. Dr. J. E. N. Okonkwo (2001) 5 NSCQ$ 650 at 675.
On the facts of this case, the appellant is entitled to have his conviction quashed and to be acquitted and discharged in respect of the offences qualified and upgraded with ingredient which was neither expunged therefrom nor proved at the trial, and which the section of the law creating the offence did not include.
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Next is the legal status of Exhibit P3 – the order the alleged disobedience of which led to the appellant being charged with a multiplicity of crimes.
To determine the legal status of the order (Exhibit P3), I shall resort to s.36 of the Constitution {supra) for guidance. It provides:
“S.36 (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provision of a law.” (Underlining mine for emphasis)
See the case of Aoko v. Fagbemi (1963) 1 All NLR 400 and the recent case of Amadi v. FRN (2011) All FWLR (Pt. 561) 1588.
There is no doubt that the order, Exhibit P3, the disobedience of which exposed the appellant to criminal charges is a lawful order emanating from appropriate authority. It is also beyond dispute that the order, Exhibit P3, is not an Act of the National Assembly nor is it a law passed by a State Assembly, especially Lagos State Assembly. It is neither a subsidiary legislation nor instrument under the provision of a Law. The counts of the information did not disclose under what law, if any, the order was made to qualify as subsidiary legislation or instrument.
It is my considered view that the order, Exhibit P3, upon which the counts of conspiracy and disobedience to order were laid against the appellant and upon which he was tried, convicted and sentenced is not an Act of National Assembly, not a law made by any State House of Assembly, not a subsidiary legislation or instrument made pursuant to
the provision of any law in terms of s.36 (12) of the Constitution reproduced above.
Section 203 of the Criminal Code of Lagos State under which the counts of disobedience to Exhibit P3 were laid against the appellant is headed: “Disobedience to Lawful Order Issued by Constituted
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Authority”. It provides:
“S.203: Any person who, without lawful excuse, the proof of which lies on him, disobeys any lawful order issued by any person authorised by any Order, Act or Statute, to make the Order, is guilty of a misdemeanour unless some mode of proceeding against him for such disobedience is expressly provided by Order, Act, Law or Statute and is intended to be exclusive of all other punishment. The offender is liable to imprisonment for one year.”
The absurdity of this provision puts its constitutionality in issue. I will illustrate with reference to a Practice Directive issued by the Honourable Chief Justice of Nigeria or the head of any Court for that matter, which is no less and no more a lawful order than Exhibit P3.
In exercise of powers conferred on His Lordships by Section 236 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Order 10 Rule 2 of the Supreme Court Rules 1999 (as amended), the Honourable the Chief Justice of Nigeria , Honourable Justice Aloma
Mariam Mukhtar, GCON, issued the current Practice Directions dated 15th July, 2013. See Government Notice No. 131 Paragraphs 8 of the Practice Directions, headed “Appeal Certification Committee” provides:
“8(1) The Chief Justice of Nigeria shall in furtherance of the objectives of these Practice Directions, constitute a committee of Justices of the Supreme Court, which shall be tasked with the certification of all appeals coming for hearing under these Practice Directions which shall be known as the Appeal Certification Committee.
(2) An Appeal shall not be listed by the Registry unless same has been certified by the Committee.”
The Direction was issued by a person authorised by law within the terms of s.203 of the Criminal Code Law of Lagos State. No mode of proceeding against a defaulter has been provided nor any punishment intended to be “exclusive of all other punishment”.
If the Registry of the Supreme Court, without lawful excuse, disobeys the Order (Practice Directions), paragraph 8 (2) by listing an appeal which has not been certified by the Appeal Certification Committee pursuant to paragraph 8 (1) of the Practice Direction, the Chief Registrar of the Supreme Court or the Registrar responsible for listing appeals could be prosecuted for the criminal offence of disobedience to lawful order and could be sent to prison for one year, under s.203 of the Criminal Code of Lagos State, contrary to s.36 (12) of
the Constitution (supra).
Though there may well be cases where the constitutionality of s.203 [supra) was in issue, the Court was not referred to, and I could not find, any. The Order, Exhibit P3, is no more than an administrative directive in the same category as a Practice Direction. Disobedience to such orders or directives is not a criminal offence but is a matter to be dealt with administratively.
In my view, the provision of s. 203, supra, is in direct conflict with s.36 (12) of the Constitution which provides:S.36 (12) Subject as otherwise provided by thisConstitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provision of a law.
The order, Exhibit P3, is an administrative directive and its disobedience is not an “offence defined and the penalty therefor prescribed in a written law; and no provision of the Constitution has conferred such status on it. In order to constitute an offence, criminality of its disobedience and punishment for same must be contained in the Order disobeyed.
At page 55 (paragraph 1) of the Respondent’s brief, learned Counsel for the Respondent stated:
“This Court cannot in the light thereof accept the contention of the defence that the Federal Executive Council is an illegal body unknown to law.”
The above assertion is not borne out of the records. It is lifted from the mischievous imagination of learned Counsel for the Respondent. It was not intended to, and did not, advance the Respondent’s case. The unfounded allegation of impropriety of describing the Federal Executive Council as illegal body made against reputable Counsel for the Appellants (as defendants) is meant to inflame passion against the appellants and distract attention from the issue in contention.
The conviction of the appellant in counts of the amended information charging him with disobedience to the order, Exhibit P3, and conspiracy to disobey the order, cannot be sustained, in view of s.36 (12) of the Constitution. See also Aoko v. Fagbemi (1968) 1 All NLR 400; Amadi v. FRN (2011) All FWLR (Pt. 5611) p.1588. My reasoning on the averment “with intent to defraud”, applies since the disobedience was with intent to defraud.
The counts of abuse of office with intent to defraud as laid under s.104 of the Criminal Code Law of Lagos State consist of splitting of contracts. The counts also have averment that the appellant acted with intent to defraud and the views I expressed earlier will apply. In addition, assuming that the counts are valid, the evidence led is at variance with the counts. PW3, PW4, PW6 and PW7 testified that no contract was split. It cannot therefore be said that the counts upon which the appellant was convicted and sentenced were proved as laid.
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In an attempt to surmount the problem posed by the evidence of his own witness which was at variance with the counts learned Counsel argued that the witnesses were witnesses of fact and not witnesses of opinion. With respect to learned Counsel, I find the argument specious. Whether or not a contract is split is a matter of fact which can be settled on empirical evidence. The witnesses in question were not called and/or qualified, as experts to state their opinions on whether or not contracts were split. They did not state opinion; they stated facts known to them.
The learned Counsel for the Respondent is bound by the evidence of his own witnesses. If the witnesses had testified that in fact contracts were split, learned Counsel would have hardly raised the issue that the evidence was of opinion and not facts.
In deciding whether or not the prosecution proved its case, the Court has to consider the totality of the evidence adduced for and against the accused person. The trial Court erred when it convicted the appellants on counts of splitting contracts in spite of the evidence of prosecution witnesses to the effect that no contract was split and the Court below perpetrated the error in affirming the conviction. The Court cannot close its eyes to the evidence of prosecution witnesses favourable to the appellant only to convict him on the portion of evidence against him.
Learned Counsel for the Respondent misconstrued the answer given under cross-examination by the appellant in SC.180/2012 to the effect that split contract will be obvious on the face of any proposal sent to the Board. This is a far cry from an admission that a contract was split.
Appellant was charged, tried, convicted and sentenced in his status as public officer. The relevant counts of the information laid against the appellant contained the averment that he committed the offences “while being an employee in the Public Service of the Federation of Nigeria as Board Member of Nigeria Ports Authority (NPA).” Appellant was not employed, at the material time, in the Public Service of Lagos State.
The offence of “abuse of office regarding award of contracts by splitting contracts” is an offence in relation to “the administration or the management and control of the Federal Government or any of its agencies” within the meaning and intendment of s.251 (1) (P) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). It is a matter over which the Federal High Court is conferred with jurisdiction to the exclusion of any State High Court, including the Lagos State High Court.
It follows that the proceedings leading to and including the conviction and sentence passed on the appellant were conducted without jurisdiction and therefore a nullity. See Madukolu v. Nkemdilim (1962) 1 All NLR 516; National Bank v. Soyoye (1977) 5 SC 181; Penok Ltd v. Hotel Presidential Ltd (1982) 12 SC 1.
Learned Counsel for the Respondent made heavy weather of the inviolability of concurrent findings of facts of the two Courts below. The sanctity of concurrent findings of facts of the two Courts below is not cast in stone and from what I have stated above, this Court has a duty to interfere with the findings, the perversity thereof and substantial errors of law having been demonstrated. See Bankole v.
Pelu (1991) 8 NWLR (Pt. 211) 23; Dibiamaka v. Osakwe (1989) 6 NWLR (Pt. 154) 711; Lokoyi & Anorv. Olojo (1983) 8 SC 61 at 68.
In view of all I have stated above, I do not consider it necessary to dwell on the niceties of the effect of the order, Exhibit P3, not originating from the parent or supervisory Ministry, the proper service of the order on the Board of the Nigeria Ports Authority or the authority of learned Counsel for the Respondent to prosecute the appellant. They have become academic in view of the views expressed.
Not quite long ago, the Honourable, the Chief Justice of Nigeria, lamented that the prosecuting agencies in this country charge people to Court before looking for evidence to sustain the charges. I cannot agree more with His Lordship. In some cases, the evidence to sustain
the charge may never be available. In the case at hand, it appears that the prosecution had a theory, based on the facts available to it and proceed to search for the law to back up the theory. In so doing, the prosecutor deemed it appropriate to import extraneous element into the law he chose upon which to prosecute the appellant.
With regret, and there is enough of it here to equate with apology to learned Counsel for the Respondent who expended energy and resources to build a castle in the air, the building is without foundation and so it cannot stand. But if anyone deserves apology for the drama that played itself out through the Courts, it is the appellant. His consolation lies in the fact that his soiled image has been wiped clean as is apparent from the reasoning above.
My Lords, may I add, for the purpose of emphasis, that there is no political criminal offence in our jurisprudence. Politics does not have a separate criminal legislation pursuant to which a person, including a politician, can be convicted of a criminal offence properly so-called. For an act or omission to constitute a criminal offence for which a person is liable to conviction, the act or omission must be defined as a criminal offence by a written law prescribing punishment thereto on conviction. And a “written law refers to an Act of the National Assembly or a law of a State, any subsidiary legislation or instrument under the provision of a law.” See s.36 (12) of the Constitution (supra).
In Nigeria, the fight against corruption must be real. It must be directed at appropriate quarters and should not use anyone as scape-goat. Senior citizens of this country who spent their productive years serving the nation in various capacities die while waiting in lines that never moved to collect their well-earned retiring benefits and pensions. The kleptocrats who gleefully carted away the pension funds and our petrodollars are not spirits. They live among us and interact with us, including the prosecuting agencies. And when a show is made of prosecuting any of them, he is brought to Court on information with more than 100 counts.
In the case at hand, it was originally 163 counts. There have been cases where the information had up to 200 counts. Before trial takes off, the information is subjected to more amendments than the 1999 Constitution of the Federal Republic of Nigeria.
It is not known and left to speculation why a prosecutor should file multi-count information with no reasonable chance of success when a few counts with reasonable chances of proof can be filed. The result is that the accused person walks for the information is programmed to fail. The real criminals must be made to face the wrath of the law.
Individuals and particularly public officials who run fowl of stated rules but whose conduct falls short of crime as defined by law should not be brought to Court on the pretext of fighting corruption. The matter could be dealt with in ways other than criminal proceedings.
As is apparent in this judgment, there is no compatibility between the facts constituting the offences and the law upon which the charges were brought against the appellant.
For the above and the fuller reasons elucidated in the lead judgment of My Lord, Fabiyi, JSC, in the sister case of SC.180/2012, Chief Olabode George v. FRN which judgment has just been delivered. I accept the argument of the learned Silk for the Appellant and accede to his request to allow the appeal. It is my view that this appeal has merit and ought to be allowed.
Consequently, I allow the appeal, set aside the judgment of the Court below affirming the judgment of the trial Court and acquit and discharge the appellant on all counts of the amended information laid against him.
Appeal allowed. Conviction and sentence quashed.
SC182/2012
