Bode George: Maritime operators, lawyers hail Supreme Court judgement

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Last Friday’s judgement of  the Supreme Court, upturning the earlier conviction of a former Chairman, Nigerian Ports Authority (NPA) Board of Directors, Chief Bode George, may have brought genuine gladness to stakeholders in the Nigerian Maritime industry.

The apex court set aside George’s earlier conviction, on grounds that the offence of contract splitting was not in the law book or constitution, as at the time the NPA board took their decision.

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Hardly had the Supreme Court’s judgement been delivered, when reactions poured in: first a former NPA Managing Director who spoke on condition of anonymity, then a Senior Advocate of Nigeria, Chief Mike Igbokwe, another Maritime lawyer, Emeka Akabogu. “Sincerely, the position of the Supreme Court is the right decision. Splitting of contract means the project to be executed was important; and the only way to achieve its execution was to split,” indicated the retired NPA Boss, pointing out that at no point in the prosecution were the parties accused of stealing money. “Splitting contract didn’t say they stole money. Their conviction only proved they didn’t have good lawyers. “Besides, the offence was not a criminal one. It was an administrative one. He was the Head of a Board; and the board was determined to achieve a laudable administrative goal. In operational terrain, there were certain things that a board needed not go to the Federal Council if it is to deliver on time”, he posited further, stressing that George was in charge of a board that existed, before the Procurement Act came into being. Speaking in the same vein, maritime revered lawyer and Senior Advocate of Nigeria Mike Igbokwe (SAN) lauded the judgement, warning that any prosecution team which over relies on the media, for winning its cases should think twice. “No court would rely on newspaper reports in the face of contrary evidence before it or failure of the prosecutor to prove the essential ingredients of the offence, to convict an accused person who the Constitution regards as innocent until proved guilty by the prosecutor,” Igbokwe observed, even as he emphasised the fact that he was yet to see the details of the ruling, only the media reports. “Please note that my comments are based on newspaper reports and not on my reading the judgement. But assuming the news reports are correct, I agree with the decision and disagree with those claiming that it would encourage corruption. Rather, it would cause the prosecutor to ensure it has enough evidence to secure convictions of the accused before proceeding to court. “Usually, rather than work towards this, the prosecutor wrongly resorts to using the mass media and public opinion to try and convict the accused, forgetting that under our laws, it is only the court that can legally do so. No court would rely on newspaper reports in the face of contrary evidence before it or failure of the prosecutor to prove the essential ingredients of the offence, to convict an accused person who the Constitution regards as innocent until proved guilty by the prosecutor. “Three of the major principles of our criminal law and justice that the decision followed are that the burden of proving the guilt of an accused person is on the prosecutor who must prove it beyond reasonable doubt; and that if there is any doubt in the prosecution’s case, it must be resolved in favor of the accused. “The third is that the applicable law is the law in force at the time the cause of action or offence arose and that an accused cannot be convicted of a crime that was not an offence at the time of the alleged commission. This is because it is against the Constitution to apply a law retrospectively”, the SAN explained further. Agreeing with him, seasoned Maritime lawyer, Emeka Akabogu, also highlighted that going by the Rule of Precedence, the other parties in the earlier conviction, if they were not parties to the present appeal and Supreme Court declaration would soon secure same relief. “I don’t know who the parties to the appeal are. But, if all the parties who were convicted were, then, all of them would benefit”, he stated, counseling on the need to first confirm; as well as identifying if the “charges” against all of them were the same. Pointing out that he was also yet to see the Supreme Court judgement and so may have to rely for now on newspaper publication, Emeka Akabogu noted that it was possible that all the affected persons might have secured the same relief, and that Chief Bode George, being the most celebrated of them, was getting all the media attention. He maintained that the charges were observably administrative, rather than criminal, and therefore, should the other parties not be covered by the present relief, it would only be a matter of time, before they would initiate same prayer, being backed by the rule of precedence, to secure same relief! Meanwhile, a public analyst, Ayuba Mohammed, observed that in spite of the Supreme Court judgement, many Nigerians may still believe that the present declaration might not augur well for the cause of fighting corruption. He maintained that several Nigerians could still hold on tenaciously to the notion that those affected along with Bode George were properly tried, and convicted; with the prosecution proving its case beyond doubts. It would be recalled that George, the former NPA Managing Director, Architect Aminu Dabo, his Deputy and Executive Director, Marine and Operation, Captain Oluwagbemiga Abidoye, Alhaji Abdulahi Aminu Tafida, Alhaji Zanna Maidaribe and Engineer Sule Aliyu were on October 26, 2009 convicted and sentenced to 30 months imprisonment by Justice Olubunmi Oyewole of the Lagos High Court, Ikeja. They were tried and convicted under Sections 104, 203 and 517 of the Criminal Code Laws of Lagos State 2003 for offences relating to abuse of office, disobedience to lawful order issued by constituted authority and conspiracy to commit offence. George and others were in all, said to have exceeded the limit of their authority to award contracts and contrived to bring the contracts within their limits by splitting them, while also inflating their prices, in the charge brought against them by the Economic and Financial Crimes Commission. But a five-man Supreme Court panel, who heard the six separate appeals, filed by the appellants, unanimously held that George and others were unjustly subjected to trial and convicted. The court held that the prosecution failed to establish the guilt of the appellants and that the law under which the charges were brought were unconstitutional. The court also held that the offences for which the appellants were convicted were not known to law as at when the offences were said to have been committed. Consequently, Justice John Afolabi Fabiyi, who read the lead judgement, observed that even when the prosecution’s evidence showed that all the contracts awarded were “appraised by experts employed by the authority (NPA) and that the experts recommended the contractors to which the contracts were awarded, the prosecution led by Festus Keyamo failed to either call any of the experts as witness or prosecute them.” Thus, driving his point home, the Presiding Judge declared: “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 term of imprisonment, was enacted into law by the National Assembly in 2007 long after the appellant had ceased to be member of the NPA. “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, 64, 65 and 67 (of the charge) therefore constituted a gross violation of section 36(12) of the Constitution.”

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