…Describes Judgment As “Expression of Class Solidarity”
Ayo Balogun, Lagos
Activist and Senior Advocate of Nigeria (SAN), Femi Falana has faulted the Supreme Court’s acquittal of Chief Bode George and others, quashing their ex-convict status, saying that the apex court wrongfully carried out the action.
Lagos Lawyer Femi Falana (SAN)
Falana, in a statement said the verdict of the Supreme Court had 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.
“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,” he said.
He stated that 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, saying that 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 were “borne out by evidence from all the witnesses on both sides,” he explained.
According to Falana, 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.”
He added that as the verdict of the apex court was based on wrong legal foundation, its validity remained questionable, stressing that, although, the appellants had been exculpated, it is hoped that the Supreme Court would 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,” he stated.
Source: African Examiner.