…Says PDP chieftain not an ex-convict
BEVERLY HILLS, CA, December 13, (THEWILL) – A big relief came for the former Board Chairman of Nigeria Ports Authority (NPA), Chief Olabode George, on Friday, as the Supreme Court finally set aside his conviction and that of others who were convicted and sentenced to prison by a Lagos High Court.
The implication of the judgement is that George and is co-travellers would no longer be regarded as ex-convicts.
Justice J.A Fabiyi , who read the lead judgement on Friday, held that one of the offences which applicants were convicted of “Tender Splitting” is not made an offence by an Act of the National Assembly and even its disobedience is nowhere penalised in written law.
Noting that any conduct that must be sanctioned must be expressly stated in a written law to wit an act by the National Assembly, Justice Fabiyi said: “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. It occurs 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.
“The same goes for conspiracy to split contract. It occurs to me that the entire proceedings ran foul of the pro visions of Section 36(8) of the 1999 Constitution.
The court further held that the law in which the applicants were convicted was not applicable as at the time the offence was said to have been committed.
“The Public procurement Act, 2007 was put in place on the 1st of June, 2007 where in its Section 58 penal sanctions for splitting of tenders. The law was not made with retrospective effect. It could not have been so in the face of the clear provision of Section 36(8) of the 1999 Constitution. This court, as the guardian of the Constitution, will not allow such to happen.
“In view of the constitutional infraction, the entire trial, conviction and sentence of the appellant remain a nullity and must be set aside.”
The Supreme Court also held that prosecution is expected to prove the offence as charged irrespective of the provisions of the statute creating the offence and once the prosecution made the intention to defraud an element of the offence, they must prove same.
The further held that they cannot be heard to say that it is not an element in the statute creating the offence.
“Intention to defraud was made an element of the offence charged. Yet learned counsel for the respondent said evidence in respect of same was ‘neither here nor there’. The prosecution knew the odious phrase to demean the appellants. From the word go, it must be presumed that when the appellants were put on trial it was on the basis that there was no prima facie case which showed intention to defraud.
“If that was not evident, the case ought not to proceed to trial. Such action does not reflect well on our jurisprudence. A court of law should be weary of such practice.
“Let me state it in passing that their Lordships of the court below, with due diffidence, did not indicate the process of reasoning by which they implied that the intention to defraud had been proved. This court has held that the trial courts must arrive at their verdicts through process of reasoning which is analytical and not only command confidence but is punctuated with logical thinking based on cogent and admissible evidence and in which facts leading to the conviction of the accused are clearly found and legal inference clearly drawn”, Justice Fabiyi held.
The court further held that the appellants were not shown to have benefited from any contract awarded and none of the companies to which contracts were awarded belonged to the appellants as there was no evidence of any shortage whatsoever.
“I must state it in clear terms that I fail to see how intention to defraud was proved as affirmed by the court below. In reality, it was not proved. It was an element or ingredient of the offence as charged which needed proof beyond 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 respondent rests on shifting sand. The charges of fraud against the appellants in respect of splitting contracts and disobedience of guideline are unknown to any written law at the material time. They rest on nothing on the face of the provisions of Section 36(8) and (12) of the 1999 Constitution. They cannot stand as they fall flat.
“And to cap it, the prosecution laced the extant charges with intention to defraud, an extra element of the charge which was not proved beyond reasonable doubt. It was a complete mistrial by the lower courts.
“The appeal is allowed as same is, no doubt, meritorious. The judgement of the court below is accordingly set aside. The appellants is hereby acquitted and discharged forthwith, ” Justice Fabiyi said.
George, who is a former chairman of the Southwest chapter of the ruling Peoples Democratic Party (PDP), had been convicted, along with others, on a 68-count charge bordering on splitting of contract and intention to defraud the Federal Government .
Though they had all pleaded not guilty to the charge and had served their jail term, they had, after serving out their jail term, approached the Court of Appeal, Lagos Division to challenge the decision of the Lagos High Court which convicted them.
The appellate court on January 21, 2011 in its judgement on the appeal affirmed the decision of the lower court.
Not satisfied, the applicants approached the apex court to challenge the decision.
