•Voids sections 104, 203 of criminal code

From GODWIN TSA, Abuja

Former Chairman of the Nigerian Ports Authority [NPA], Chief Ola-bode George and others were yesterday discharged and acquitted by the Supreme Court which quashed their conviction after holding that it was a complete mistrial by the lower courts.Others cleared with the chieftain of the Peoples Democratic Party [PDP] by the apex court are Arc. Aminu Dabo , Captain O. Abidoye, Alhaji Abdulahi Aminu Ta.da, Alhaji Zanna Maidaribe and Engr. Sule Aliyu.Justice Joseph Oyewole of a Lagos State High Court, Ikeja, division, had in October 2009 convicted and sentenced them to a two and a half year jail term without an option of .ne after pronouncing them guilty on a 63 count-charge of conspiracy, disobedience of lawful order and contracts splitting and in.ation charges brought against them by the Economic and Finacial Crimes Commission [EFCC].Dissatisfied with the judgment of the trial court, they approached the Court of Appeal to set it aside on four grounds.But Justice Clara Ogunbiyi leading a panel of three Appeal Court justices dismissed their appeal and con.rmed their convic-tion by the lower court of Justice Oyewole.

The appellants not deterred took their case to the apex court to quash the judgment of the Court of Appeal.Delivering judgment on the matter, the apex court agreed with the appellants that the contract splitting which formed the basis of the offences brought against them is unknown to law at that material time as it is not an offence de.ned in, and for which penalty is provided for in a statute.The apex court held that the Public Procurement Act, 2007 which  contains in its section 58 penal sanc-tions for splitting of ten-ders only came into effect in 2007 after the alleged act were carried out by the appellants and cannot take retrospective effect.“It could not have been so in the face of the clear provisions of section 36[8]o of the 1999 constitution. This court, as the guardian of the constitution, will not allow such to happen.”Besides, the court held that it was not shown any-where in the trial that the appellant bene.ted from any contract awarded and non of the companies to which contracts were awarded belonged to the lead appellant and mem-bers of his team.

Justice John Afolabi Fa-biyi in his leading judg-ment premised his .ndings on the provision of section 36 [12] of the 1999 consti-tution which provides;“Subject as otherwise provided by this constitu-tion, a person shall not be convicted of a criminal offence unless the offence is de.ned and the penalty therefore is prescribed in a written law; and in this subsection a written law reefers to an act of Nation-al Assembly or a law of a state, any subsidiary legis-lation or instrument under the provision of a law.

”It was the .nding of the court that the charge of disobedience to lawful or-der issued by constituted authority under which the appellants were convicted was a mere circular “that contains guideline which forbids splitting of contract by any of.cer.“It stipulates that breach of same shall be met with disciplinary action. This may be in form of admin-istrative action against an of.cer who breaches the rules. Disobeying exhibit P3 [Circular] is not made an offence by any Act of National Assembly or law of a State House of Assembly or even the contents of exhibit itself. Even then, disobedience of exhibit P3 is nowhere penalized in a written law.“Any conduct that must be sanctioned must be ex-pressly stated in a written law to wit:  an Act by the National Assembly.

That is what section 36 [12] of the 1999 constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the court.”Accordingly, the court declared that section 203 of the Criminal Code under which the appellants were charged is not in tune with the dictate of section 36 [12] of the constitution.“That being the position, the charges .led under sec-tion 203 of the said Code  ostensibly for splitting contract in disobedience of lawful order by constituted authority cannot stand.

I maintained the same stance when faced with a similar scenario in Asake v. Nige-rian Army Council [2007] All FWLR [pt.396] 731. With due sense of purpose and humility, I stand by it.”Justice Fabiyi  further cited section 104 of the Criminal Code which pro-vides that acts said to have constituted arbitrary acts resulting in abuse of of.ce were not offences  known to law at that material time.“The alleged conduct of ‘splitting of contract’ was not only outside any writ-ten law but in fact, not an offence at that material time.

The same goes for conspiracy to split contract. It occurs to me that the en-tire proceedings ran foul of the provisions of section 36 [8] of the 1999 constitution which provides:  “No person shall be held to be guilty of a crimi-nal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”The court consequently held that in view of the constitutional infraction, the entire trial, conviction and sentence of the appel-lants remain a nullity and must be set aside.

On a .nal analysis, Justice Fabiyi held; “I must state in clear terms that I fail to see how intention to defraud was proved as af.rmed by the court be-low. In reality, it was not proved. It was an element or ingredient of the offence as charged which needed proof beyond reasonable doubt. Where such a vital element was not proved as herein, the prosecution’s case must fail.“It has been established that the case of the respon-dent rests on shifting sand.The charges framed against the appellant in respect of splitting of contracts and disobedience of guideline in exhibit 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 .at. “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, merito-rious. The judgment of the court below is accordingly set aside. The appellant is hereby acquitted and discharged forthwith.”The court applied the same principle in the case of Bode George to also quash the conviction of are Arc. Aminu Dabo , Captain O. Abidoye,  Alhaji Zanna Maidaribe and Engr. Sule Aliyu, except  Alhaji Abdulahi Aminu Ta.da who raised constitutional ques-tions in his separate appeal.In his case, Justice Ku-mai Bayank Akaahs who delivered judgment in his appeal voided sections 104 and 203 of the Criminal Code on the grounds that they are at variance with section 36 [12] of the 1999 constitution and are there-unch

Posted by admin on Dec 13 2013. Filed under Judiciary, Latest Politics, National Politics. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry