DABO v. FEDERAL REPUBLIC OF NIGERIA (2013)

In The Supreme Court of Nigeria

On Friday, the 13th day of December, 2013

SC.196/2012

Before Their Lordships

MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria

MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria

JOHN AFOLABI FABIYI Justice of The Supreme Court of Nigeria

NWALI SYLVESTER NGWUTA Justice of The Supreme Court of Nigeria

KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria

Between

ARC AMINU DABO –Appellant

AND

FEDERAL REPUBLIC OF NIGERIA- Respondent

…………………….A…………………….

KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the Leading Judgment): Arc. Aminu Dabo was one of the six accused persons and others arraigned on a 163 count information before the Lagos State High Court, Ikeja Division on 8/8/2008. The charge was later amended to 68 counts to which the appellant, who was Managing Director of the Nigerian Ports Authority and 2nd accused, together with the others pleaded not guilty.The appellant along with the others were alleged to have exceeded the limit set for the Board to award contracts and contrived to bring the contracts within its limit by splitting them while still inflating their prices. The evidence adduced on behalf of the prosecution is to the effect that the contracts awarded were appraised by experts employed by the Authority who also recommended the contractors who were awarded the contracts. None of the experts was interviewed during investigation nor called to testify; neither were they charged with any of the alleged offences. All the counts upon which the appellant was found guilty alleged that he committed same with intent to defraud the Authority. There was no evidence that the appellant derived any benefit from what the Board did.
The prosecution called 10 witnesses while the chairman of the Board Chief Olabode George, who was the 1st accused testified for the defence.
In Counts 1 – 7 the appellant and his co-accused were charged with the offences of inflation of contracts. Count 8 charged the accused persons with Conspiracy to disobey lawful order issued by a Constituted Authority contrary to section 517 of the Criminal Code Law of Lagos State 1994. In Counts 9 – 57 they were charged with abuse of office and disobedience of lawful order contrary to sections 104 and 203 of the said Criminal Code while Counts 58 – 68 were for abuse of office contrary to section 104 of the said Criminal Code.
In the evidence of the 1st accused which the other accused adopted, the Board members agreed to continue to use the 1999 guidelines pending the time the Minister replied the letter of the Board after PW4 had drawn the Board’s attention to Exhibit P3.
At the conclusion of evidence and address, the learned trial Judge delivered his judgment on 26/10/2009 wherein he acquitted and discharged all the accused persons of the offences of inflation of contracts in Counts 1 – 7, 13, 14, 17, 18, 30, 31, 45, 47, 48, 58, 62,63, 66 and 68. He found them guilty of conspiracy to disobey lawful order issued by Constituted Authority contained in Counts 9 – 57 contrary to section 203 of the Criminal Code and also abuse of office contrary to section 104 of the said Code and sentenced each of them to 2 years imprisonment without an option of fine.
Dissatisfied with the conviction and sentence each of the appellants appealed to the Court of Appeal, Lagos Division. All the appeals were dismissed on 21/1/2011. The lower court held that the prosecution did not need to prove intention to defraud before the conviction of the appellants could be sustained. Being dissatisfied with the judgment each of the appellants again appealed to this Court. All the appeals were assigned different appeal numbers. This was unnecessary since the appellants were convicted on the same charges and on the same set of facts. In fact the same record was used for each of the appeals. What the law stipulates is that each appellant should file a separate Notice of Appeal. See: Order 9 Rule 3(1) Supreme Court Rules.
In his brief of argument, the appellant distilled 8 issues for determination. They are the same issues which were distilled in appeal No. SC.180/2012 – the appeal of Chief Olabode George, who was the Chairman of the Board of the Nigerian Ports Authority from 2001 – 2003 when the appellant served as the Managing Director. The resolution of the issues raised in SC.180/2012 therefore apply ‘mutatis mutandis’ to this appeal. The appeal has merit and it is hereby allowed. The judgment of the court below is accordingly set aside. The appellant is acquitted of the charge and discharged forthwith.MAHMUD MOHAMMED, J.S.C.: I have had the privilege before today of reading the judgment written by my learned brother Aka’ahs JSC.
The facts of the case are fully set out in the said lead judgment and all the issues put forward for resolution in the appeal are well set out and comprehensively discussed. I completely agree with the reasoning and the conclusion finally arrived at therein and I adopt them as mine. Consequently, for the detailed reasons given in the lead judgment, I also see merit in this appeal and I hereby allow it. Accordingly the conviction and sentence passed on the Appellant by the trial Court and affirmed on appeal by the Court of Appeal, are hereby set aside. The Appellant shall be and is hereby acquitted and discharged.

JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the judgment just handed out by my learned brother – Aka’ahs, JSC. I agree with the views expressed therein that since the same issues in SC.180/2012 are raised in this appeal, the resolution therein must apply mutatis mutandis to this appeal. This appeal has merit and is hereby allowed. The judgment of the court below is set aside. The appellant is acquitted and discharged forthwith.

NWALI SYLVESTER NGWUTA, J.S.C.: I have read in draft the lead judgment of my learned brother. Aka’ahs, JSC. The appeal is identical with appeals No. SC.180/2012, SC.182/2012, SC.217/2011 and three others.
For the view I expressed in the above appeals and the fuller reasons in the lead judgments, I also allow the appeal and adopt the consequential orders.

Appearances

Kanu Agabi SAN with him; Udoka Owie (Mrs) John Ochogwu; P. K. Obi (Mrs); Linus Akwaji; Peter Erivwode; Kehinde Wilkey; Edidiong Usungurua; Ofem Obeten; Akinola Afolarin; Aiseosa Osaghae (Miss) Elvis Utulu; Bartholomew Olohu; Pricilla Omang (Miss); Uchenna Ugwueze (Miss) and Nkiru Melifonwu (Miss). For Appellant

AND

Festus Keyamo with him B. N. Obinye and John Anietor. For Respondent

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