How Supreme Court Wrongly freed Bode George, others
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 Economic and Financial Crimes Commission, 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, the Federal Capital Territory High Court struck out the charge of stealing land filed by the EFCC against Nasir El-Rufai when it upheld his no case submission; while the Supreme Court discharged and acquitted Olabode George and other former members of the Nigeria Ports Authority, NPA, 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 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 was 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 for 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 revered Chukwudifu Oputa J.S.C alluded to the finality of the decisions of the Supreme Court when he said, '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, '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 legislation ad hominem.'
In recognition of the enormous powers of the apex court 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 for a.' In reaction to the view of some judges and lawyers that it is contemptuous to subject decisions of courts to criticism, 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 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. 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 judge, John 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 EFCC 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 that 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, however 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'.
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 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, the 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 meager 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.
Finally, one is tempted to draw the attention of judges handling corruption cases to the case of Ekwenugo v. Federal Republic of Nigeria (2001) 6 NWLR (PT 708) 171 where Fabiyi JCA (as he then was) rightly observed that: 'Nigerian judges do not operate in utopia. We operate in Nigeria. And no Nigerian judge can rightly claim he has not heard that Transparency International rates our nation-state as the most corrupt in the whole universe in the year 2000. This is ear-aching.'
Femi Falana is a human rights lawyer and Senior Advocate of Nigeria.