The Supreme Court on Friday set aside the ruling a Lagos High Court which convicted a former chairman of the Nigeria Ports Authority, NPA, Bode George.
Mr. George was found guilty of 47 of 68-count charge bordering on ‘contract splitting and intention to defraud’
Although Mr. George and others who were convicted alongside the former NPA Chairman, served their sentence, they nonetheless appealed the judgment at the Lagos Division of the Court of Appeal. However the Appeal court on January 21, 2011 upheld the judgment of the lower court.
Mr. George and co. therefore, approached the Supreme Court which ruled in their favour Friday.
Justice J. A. Fabiyi who read the lead judgment held that one of the offense for which the applicants were convicted; “Tender Splitting” was not made an offense by an Act of the National Assembly, therefore, its apparent disobedience is nowhere penalized in written law.
Mr. Fabiyi said any conduct that must be sanctioned must be expressly 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. It occurs to me that Section 203 of the Criminal Code (of Lagos State) 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,” he said.
He also said the same applies to the charge on conspiracy to split contract.
“It occurs to me that the entire proceedings ran foul of the provisions of Section 36(8) of the 1999 Constitution,” he added.
Mr. Fabiyi equally held that the law in which the applicants were convicted was not applicable as at the time the offense 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,” he said.
The Supreme Court also held that the prosecution was expected to prove the offense as charged irrespective of the provisions of the statute creating the offense and once the prosecution made ‘intention to defraud’ an element of the offense, they must prove same.
“Intention to defraud was made an element of the offense 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 to 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”, the court held.
The Supreme Court also said 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.
“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 offense 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 is 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 judgment of the court below is accordingly set aside. The appellants is hereby acquitted and discharged forthwith,” Mr. Fabiyi said.
Mr. George, a former Deputy Chairman of the Peoples Democratic Party, served his jail term after his sentencing and has since returned to his position as a leader of Nigeria’s ruling PDP in Lagos State.