How the Supreme Court Wrongly Freed Bode George & co. (1)
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 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 board 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 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 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.
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”.
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.”
To be concluded tomorrow.
– Falana, SAN, is a Lagos-based human rights lawyer