In The Supreme Court of Nigeria
On Friday, the 13th day of December, 2013
Before Their Lordships
MAHMUD MOHAMMED Justice of The Supreme Court of Nigeria
MOHAMMED SAIFULLAHI 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
ALHAJI ABDULLAHI AMINU TAFIDI –Appellant
FEDERAL REPUBLIC OF NIGERIA –Respondent
KUMAI BAYANG AKA’AHS, J.S.C. (Delivering the leading Judgment): Alhaji Abdullahi Aminu Tafida who is the appellant in this appeal was the 4th accused arraigned with others on a 163 count information before the Lagos State High Court, Ikeja Division on 8/8/2008 The charge was amended on 24/10/2008 and the counts reduced to 68 to which the appellant and the others pleaded not guilty. They were charged with offences that bordered on inflation of Contact Prices, Conspiracy to disobey lawful orders, disobedience to lawful orders and abuse of office and authority. The Prosecution called ten witnesses and tendered some exhibits while the Defence relied on the evidence of Chief Olabode George who was the 1st accused. It is necessary to state that the 1st accused was the Chairman of the Board of the Nigeria Ports Authority while the others were members of that Board from 2001 to 2003 when it was dissolved.After the conclusion of evidence and the adoption of written addresses of counsel, the trial Judge in a reserved judgment acquitted and discharged the accused on counts 1, 2, 3, 4, 5, 6, 7, 13, 14, 17, 18, 30, 31, 45, 47, 48, 58, 62, 63, and 68 respectively and found them guilty on counts 8, 9, 10, 11, 12, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 61, 64 ,65 and 67 respectively and convicted each of them on the said counts. Dissatisfied with the said judgment all the accused who were convicted appealed against it to the Court of Appeal, Lagos Division (hereinafter referred to as the lower court). The decision of the Lagos State High Court was affirmed. Each of the appellants appealed to the Supreme Court.
The Appellant’s Notice of Appeal contained 11 grounds of appeal from which the following seven issues were formulated:
1. Whether the Court of Appeal did not occasion a failure of justice to the 4th Appellant’s case when it failed to consider the issues formulated out (sic) his grounds 1, 2 and 3 which had raised serious constitutional issues of breaches of the provisions of Section 36 (12) and 36 (8) of the 1999 Constitution and by so doing denied the 4th appellant of his constitutional right of appeal and his right to fair hearing (Ground 2).
2. Whether the Court of Appeal was not in error when it failed or omitted to set aside the conviction of the appellant by Oyewole J. on 40 counts of the offence of Disobedience to Lawful Order issued by Constituted Authority contrary to Section 203 of the Criminal Code Cap 32 Vol. 2 Laws of Lagos State of Nigeria, 1994 in the face of the clear and unanswered arguments that Section 203 as shown above constitutes a breach of the provisions of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria and is thereby null and void (Ground 3)
3. Whether the Court of Appeal was not in error when it failed or omitted to set aside the conviction of the appellant by Oyewole J. on 6 counts (i.e. Counts 59, 60, 61, 64, 65 and 67) of Abuse of Office contrary to Section 104 of the Criminal Code Cap 32 Vol. 2 Laws of Lagos State of Nigeria 1994 in the face of the clear submissions that the offence for which the 4th appellant was convicted for the splitting of contracts, an act or omission that did not, at the time it took place, constitute such an offence, thereby rendering the conviction and sentence on the above counts a clear infringement of the appellant’s fundamental rights guaranteed under Section 36 (8) of the 1999 Constitution (Ground 4).
4. Whether the court below was not in error when it affirmed the conviction of the 4th appellant by Oyewole J. of the Lagos State High Court on count 1 of conspiracy count 8; to disobey lawful order issued by constituted authority contrary to section 517 of the Criminal Code Cap 32 Vol. 2 Laws of Lagos State of Nigeria 1994 when the substantive offence(s) were unconstitutional and did not constitute offences against any written law at the time they were allegedly committed and when non of the ingredients of conspiracy was established by the prosecution at the hearing (Grounds 5 and 8).
5. Whether on the merits the court below was correct when in affirming the decision of the Lagos State High Court it held that the prosecution had proved the essential ingredients of the offences of Abuse of Office and disobedience of lawful order respectively under Sections 104 and 203 of the Criminal Code Vol. 2Laws of Lagos State 1994? (Grounds 6, 7, and 10)
6. Whether on the whole the court below could be said to be correct when in affirming the decision of the Lagos State High Court it held that the trial, conviction and sentence of the 4th appellant was not unreasonable, unwarranted and unsupportable having regard to the totality of the evidence adduced before the trial court (Ground 1)
7. Whether the court below was right in affirming the decision of the lower court when it held that the Lagos State High Court possessed jurisdiction to try and convict the 4th appellant (a Director on the Board of the Nigerian Ports Authority) for offences under Sections 104 and 203 of the Criminal Code Vol. 2 Laws of Lagos State 1994 when the said legislation, being a State law could not be used or employed to penalize any person for acts amounting to Federal Offences or the disobedience of a Federal Minister’s directives or orders or a failure to comply with the Nigerian Ports Authority Act (Grounds 9 and 11).
The respondent identified two issues for determination namely:
1. Whether the High Court of Lagos had the requisite jurisdiction to try the 4th appellant for the offences for which he was convicted. (Grounds 2, 3, 4, 5, 9 and 11 of the 4th Appellant’s Notice of appeal).
2. Whether the concurrent findings of facts of the two courts below in this case are so perverse and unsupportable by evidence interference by the Supreme Court (Grounds 1, 6, 7, 8 and 10 of the appellant’s Notice of Appeal).
ARGUMENTS OF THE ISSUES
Mr. Daudu, SAN, Learned Senior Counsel for the Appellant argued issues 1, 2, 3 together as well as issues 5 and 6 and dealt with issues 4 and 7 separately. I consider it appropriate to treat issues 5 and 6 along with issues 1, 2 and 3. Issues 1, 2 and 3 are questioning the constitutionality of Sections 203 and 104 of the Criminal Code Cap 32 Vol. 2 Laws of Lagos State 1994 vis-a-vis Section 36(12) and 36(8) of the 1999 Constitution while issues 5 and 6 are concerned with whether the offences stipulated in the said Sections 203 and 104 and 517 were proved beyond reasonable doubt to justify the appellant’s conviction.
The 4th accused appellant along with others were found guilty and convicted as follows:-
(See page 1736 Vol. 5 of the Records).
“……. I find each of the defendants guilty as charged on each of counts 8, 9, 10 11, 12, 15, 16, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 11,42, 43,44, 46, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 60, 61, 64, 65, and 67 respectively and I hereby convict each one of them on each of the said counts respectively”
(See page 1736 Vol. 5 of the Records).
In his Notice of Appeal to the Court of Appeal, the appellant complained that the lower court erred in law in convicting
him and the other accused for the alleged offences under Section 203 of the Criminal Code. He stated in Ground 8 of the Notice of Appeal as follows:-
“8. The learned trial Judge erred in law in convicting the Defendants of alleged offences under section 203 of the Criminal Code when:-
(a) The counts as charged included elements of fraud not covered by the section
(b) The provision of Section 203 of the Criminal Code is contrary to and in violation of Section 36(10) of the Constitution of the Federal Republic of Nigeria”
(See page 1761 Vol. 5 of the Records).
Dealing with the issue arising from this ground of appeal, the lower court held that it is only the ingredients of the offence contained in the law creating the offence that the prosecution is required to prove.
This is what the lower court stated at page 3607 Vol. 7 of the Records:-
“It is obvious on the face of all the charges against the appellants that one common phrase in all the offences for which they were charged was “intention to defraud”.
Whether or not the said phrase constitutes one of the ingredients of the offence is however subject to the scrutiny of the provisions of the law under which the charges were brought. The sections culminating (sic) the charges are 104, 203 and 517 of the Criminal Code, Laws of Lagos State of Nigeria
…Without belabouring the point the said phrase intention to defraud is not an ingredient of the offences with which the appellants were charged. The law is trite and as rightly submitted by the learned respondents counsel that it is the ingredients of the offence that the respondent is required to prove at the trial. Whatever else, is not contained in the law creating the offence is foreign and lays no duty of proof on the prosecution”
With respect this does not represent the true position of the law. I am of the considered view that it is only in cases of strict liability e.g. being in illegal possession of arms that the proposition will stand since all that is required of the prosecution is to show that the accused was found in possession of the arms and the onus will be shifted to the accused to prove that his possession of the arms was legal. In the instant case all the counts of the information charged that the appellants committed the offences with intent to defraud. Since intention to defraud was made an element of the offences charged, the Prosecution had the onus to prove the offence as charged irrespective of the provisions of the statute creating the offence. See: Agumadu v. The Queen (1963) 1 ALL NLR 201 at 203; This decision was followed in Ofuani v. Nigerian Navy (2007) 8 NWLR (Pt. 1037) 470 at 472 per Salami, JCA (as he then was) when he stated:-
“…. Where more than required particulars are introduced in the charge, they are not to be regarded as a mere supplusage which could be ignored, they have to be established with the same standard of proof as the remaining parts of the count. See: Agumadu v. The Queen (1963) 1 ALL NLR 203, 203, 205; 1963 1 SCNLR 379”.
The same point was made by this Court in Amadi v. State (1993) 8 NWLR (Pt.314) 644 where Olatawura, JSC held as follows at 664:-
“……. before a trial Court comes to the conclusion that an offence had been committed by an accused person, the court must look for the ingredients of the offence and ascertain critically that the acts of the accused come within the confines of the particulars of the offence charged”.
The prosecution failed to prove the vital element of intention to defraud by the appellant; consequently he should have been set free. Learned counsel for the respondent was only appealing to emotions when he commented that if the judiciary is not bold and fearless in strengthening the efforts of anti-graft agencies of government to combat impunity in public office it will have a negative effect on the efforts of these agencies. In order to engender confidence in the people, the judiciary must be seen to be neutral in its decisions and must at all times act as the blindfold maiden who holds the scales of justice evenly to ensure that no party has unnecessary advantage over the other and the state of equilibrium is tilted by the weight of evidence put forward by a party.
Learned Senior counsel for the appellant raised the constitutionality of Sections 104, and 203 of the Criminal Code of Lagos State but this issue was not addressed by the lower court. Learned Senior counsel argued that the 40 counts said to constitute the offence of Disobedience to lawful order issued by Constituted Authority contrary to Section 203 of the Criminal Code Cap 32 Vol. 2, laws of Lagos State of Nigeria 1994 breached the provisions of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria and is therefore null and void. He said the same argument was made in respect of counts 59, 60, 61, 64, 65 and 67 which centred on splitting of contracts which amounted to Abuse of Office contrary to Section 104 did not constitute an offence at the time the action took place; consequently the conviction of the appellant on those counts is a clear infringement of the appellant’s fundamental rights guaranteed under Section 36(8) of the Constitution.
Learned counsel for the respondent posited that Section 36(12) of the 1999 Constitution only mentions that the offence and penalty should be written and does not say that the acts constituting the offence must also be written. He argued that the particular act constituting the offence should be left to the interpretation by the court.
The right to fair hearing is enshrined in Section 36 of the 1999 Constitution. It provides in subsections 5, 8 and 12 as follows:-
“36(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed
(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and a penalty therefore is prescribed in a written law; and in this subsection a written law refers to an Act of the National Assembly or a low of a State, any subsidiary legislation or instrument under the provisions of a law”
Exhibit P3 is a Circular dated 27th June, 2001 and is the linchpin upon which the various counts in the charge were predicated. Item 2 (viii) page 4 deals with Tender Splitting and it reads thus:
“(viii) TENDER SPLITTING
It shall be regarded as a serious offence for any officer to deliberately split contracts of works, purchases, procurement or services in order to circumvent the provisions of this Circular. Such breach of the rules shall be subject to disciplinary action”
The appellant was tried and convicted under Section 104 for Abuse of Office, 203 for Disobedience to Lawful Order issued by Constituted Authority and 517 for Conspiracy to commit offence. The sections state thus:
“104 Any person who, being employed in the public services, does or directs to be done in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour and is liable to imprisonment for two years. If the act is done or directed to be done for purpose of gain, he is guilty of a felony, and is liable to imprisonment for three years. The offender cannot be arrested without a warrant. A prosecution for any offence under this or any of the last three preceding sections shall not be instituted except by or with the consent of a law officer.
203 Any person who, without lawful exercise the proof of which lies on him, disobeys any lawful order issued by any person authorized by any Order, Act, Law, or Statute, to make the order, is guilty of a misdemeanour, unless some mode of proceedings against him for such disobedience is expressly provided by Order, Act, Law, or Statute and is intended to be exclusive of all other punishment
517 Any person who conspires with another to commit any offence which is not a felony, or to do any act in any part of the world, which if done in Nigeria would be an offence but not a felony, and which is an offence under the law in force in the place where it is proposed to be done, is guilty of a misdemeanour and is liable to imprisonment for two years. The offender cannot be arrested without warrant”.
It is under these sections that the appellant and others were found guilty and convicted as follows:-
“(1) Abuse of office by splitting contracts contrary to Section 104 of the Criminal Code Laws of Lagos State 2003 on counts 59, 60, 61, 64, 65 and 67.
(1) Disobedience to lawful orders (by splitting contracts) contrary to Section 203 of the Criminal Code Laws of Lagos State 2003 (in respect of 40 counts).
(2) Conspiracy to disobey Lawful Order (by splitting contracts) contrary to Section 517 of the Criminal Code Laws of Lagos State, 2003 (in respect of count 8)”
Contract splitting which formed the basis of the offences charged was unknown to law at the material time. The Public Procurement Act which made contract splitting an offence punishable with a term of imprisonment was enacted into law by the National Assembly in 2007 long after the appellant had ceased to be a member of the Nigerian Ports Authority. The Act was not made to take retrospective effect. Even if this was the case it would have been contrary to Section 36(8) of the Constitution. Counts 59, 60, 61, 64, 65 and 67 therefore constituted a gross violation of Section 36(12) Constitution. Apart from this, it amounted to duplicity of charge the appellant for abuse of office and at same time to accuse him of disobedience to lawful order and also to be found guilty of Conspiracy to disobey lawful order which were all manifested in the splitting of the contracts. Sections 104 and 203 of the Criminal Code are at variance with Section 36(12) of the Constitution. They are therefore unconstitutional and are hereby declared null and void. The charge filed under Sections 104 for abuse of office, 203 for disobedience to lawful order and 517 for Conspiracy to disobey Lawful Order ostensibly for contract splitting in disobedience of lawful order by constituted authority cannot stand. The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the court.
In view of the fact that the various counts in the charge sheet were based on the splitting of contracts which was not an offence until 2007, the trial and conviction of the appellant for actions taken between 2001 – 2003 cannot stand. The said trial and conviction is declared a nullity. The conviction of the appellant by the trial court which was affirmed by the lower court is hereby set aside. The trial and conviction of the appellant are hereby quashed and the appellant is set free. MAHMUD MOHAMMED, J.S.C.: I have had the opportunity before today of reading the judgment just delivered by my learned brother Aka’ahs, J.S.C. in this appeal. I share the same views with my learned brother in the ways and manner he considered and resolved the issues raised for determination in this appeal that the appeal is meritorious. Accordingly, I also allow the appeal, set aside the conviction and sentence imposed on the Appellant by the trial High Court and affirmed on appeal by the Court below. In place of the conviction and sentence, there shall be substituted a verdict of acquittal and discharged. In other words, the Appellant is hereby acquitted and discharged. JOHN AFOLABI FABIYI, J.S.C.: I have had a preview of the judgment just delivered by my learned brother – Aka,ahs, JSC. I agree completely with all the reasons therein advanced to arrive at the conclusion that the appeal is meritorious and should be allowed.
It is not in contention that all the counts for which the appellant was tried and convicted were laced with the tag – ‘intent to defraud’ -an extra element not provided by the law. The respondent knew right from the start of the flawed trial that it had no shred of evidence in support of same. The stated tag was merely inserted so as to cast a damaging slur on the name and reputation of the appellant and those in his team. Since intention to defraud, was made an element of the offence charged, the respondent had the onus to prove same, but failed to do so. This is as decided by this court in Agumadu v. The Queen (1963) 1 All NLR 201 at 203. See: also Amadi v. The State (1993) 8 NWLR (Pt. 314) 644 at page 664.
As if the above is not enough, I need to say it in passing that all the counts for which the appellant and others were tried and convicted rest on Exhibit P3 a circular, which forbids contract splitting by officials. It only provides for administrative disciplinary action. It has no potency for penal sanctions at all times material to this matter. The respondent appreciated the point that I am trying to make by putting in place the Public Procurement Act in 2007 with no retrospective penal sanctions. If such had been done it would have been contrary to Section 36(8) of the Constitution of the Federal Republic of Nigeria, 1999. The laws under which the appellant and others were tried and nailed are in clear violation of Section 36 (12) of the Constitution which provides that no citizen should be tried and convicted on a non-existent law.
My learned brother said it all. For the reasons advanced by him and based on the remarks above, I feel that the appeal is meritorious and should be allowed. I order accordingly and hereby acquit and discharge the appellant forthwith. SYLVESTER NGWUTA, J.S.C.: I read in draft the lead judgment just delivered by my learned brother, Aka’ahs, J.S.C. This is one of the six appeals emanating from the decision of the Ikeja Division of the High Court of Lagos State and which decision was affirmed by the Court of Appeal, Ibadan.
The issues in the briefs are the same as in SC.180/2012 and SC.182/2012 in which I wrote the lead.
Based on the reasoning in the two appeals which are substantially identical with this one and also based on the fuller reasoning herein, I also allow the appeal and abide by the consequential orders.
J. B. Dauda, SAN with Adedayo Adedeji and Miriam Ojah. For Appellant
Festus Keyamo with Benedicta N. Obanye (Miss) and John Anietor. For Respondent