FOR THE RECORDS ; Opinion: Why freeing Olabode George was a big mistake ... PremiumTimes

Finally, when the appeal came before the Supreme Court for hearing, the matter had become an academic matter. It was no longer a life issue, for the convicts had served their terms. And the Supreme Court has repeatedly admonished counsel that it will only take life issues and not treat academic natters. Rather than being granted a “judicial pardon”, the appellants ought to have been advised to try their luck with the Executive under the prerogative of mercy provisions in the Constitution.

In a contribution published days ago, Mr. Femi Falana, SAN, used the recent decision of the Supreme Court in the Criminal Appeal of Chief Olabode George, Architect Aminu Dabo, Captain O Abidoye, Alhaji Abdullahi Aminu Tafida, Alhaji Zanna Maideribe and Engineer Sule Aliyu v. Federal Republic of Nigeria  to call attention to a disturbing trend in the judicial determination of corruption cases involving the rich and political powerful in our country. In this contribution, we endorse and share the reasoned legal opinion of Mr. Femi Falana, SAN on this issue.

Chief Olabode George and others were not convicted of contract splitting, as an offence in the High Court. They were convicted of abuse of office and disobedience to a lawful order issued by constituted authority, contrary to section 104 and section 203 respectively of the Criminal Code Law of Lagos State and sentenced accordingly. Contract splitting was the particular of the offence alleged, prosecuted, tried and adjudged in the High Court. Every offence, tried on Information in the High Court has a statement of offence and a particular of offence. Every crime has its elements, ingredients and particulars. In the Chief Bode George Case, the Statements of Offences  charged in the High Court were: abuse of office and disobedience to a lawful order issued by constituted authority; fraudulent contract-splitting in order to circumvent the laid down approval limits or threshold for contract awards by the Board of the Nigeria Port Authority were  the particulars supplied in the Charge Sheet.
In the Information ( Charge ) tried by Oyewole, J, the trial judge, and in his judgment delivered thereon,  there was no reference to the Public Procurement Act of 2007. So, the Supreme Court, with profound respect, erred in deciding that Chief Olabode George and others  were convicted of contract splitting, when same was yet to become an offence, and that same only became an offence under Section 58(4)(d) of the Public Procurement Act. It was a strained judicial interpretation that provided an escape route. What the Supreme Court did was to elevate and convert a particular of offence into a statement of offence for the purpose of reaching a conclusion that they were wrongly charged and erroneously convicted.
A young man, now serving a seven year jail term for stealing, was convicted and sentenced by an Osun State Court for picking Governor Rauf Aregbesola cell-phone from his pocket, and converting same. Stealing, like abuse of office and disobedience to a lawful order issued by a constituted authority, are offences created under the Osun State Criminal Code. In the case of this convict, stealing was the statement of offence, while removing the cell phone from Governor Rauf Aregbesola’s pocket was the particular of the offence.
If this case were to go on appeal to the Supreme Court, will the convict be freed on the ground that when the Criminal Code was made, cell phone was yet to be invented and that removing it from the pocket of the owner, with the intention of permanently depriving the owner of its use cannot be an offence unless and until a law specifically criminalizing the now very rampant cell phone theft is made?  If an Unlawful Cell-Phone Removal and Other Related Matters Law is not enacted or a law like this is enacted after a cell phone had been stolen, will it be reasonable to say that nobody can be or could have  been  convicted of fraudulently removing a cell phone before this becomes an offence or until it became an offence?
In Nigeria, before the advent of specific legislations like the Money Laundering Act, the  Advance Fee Fraud and Other Related Offences Act, and the Failed Banks ( Recovery of Debt and Financial Malpractices in Banks) Act, the Criminal Code Act and Penal Code Act had provided for the offences of stealing, theft, fraudulent conversion, criminal breach of trust, obtaining property by false pretences et cetera . Certainly, it cannot be argued that before these laws came into existence, charges could not have been laid against persons under extant provisions of the Criminal Code and Penal Code, simply because the particulars of offence alleged constituted the offences defined in the above-listed new criminal legislations.
For the avoidance of doubt,  Section. 104 of the Criminal Law, Cap C17, Vol 2, Laws of Lagos State provides for Abuse of Office.  It states  that ” Any person, who being employed in the public service, 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 misdemeanor, and is liable to imprisonment for two years
If the act is done or directed to be done for purposes 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”
Section 203 of the Criminal Law, Cap C17, Vol 2, Laws of Lagos State provides for Disobedience to a lawful order issued by constituted authority. It provides that ” Any person, who without lawful excuse, 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 proceeding against him for such disobedience is expressly provided by an Order, Act, Law, or Statute and is intended to be exclusive of all other punishment”
These provisions are analogous to Section 104 and 203 of Criminal Code Act Cap C 38 Volume 4 LFN, 2004. Thus, what the Supreme Court has done is to nullify two sections of the Criminal Code Law of Lagos State that exist, word for word, in the Criminal Code Act and replicated in the Criminal Code Laws of all the Southern States of the “Federation” of Nigeria.
Section 58(4)(d) of the Public Procurement Act, No 14 of 2007 provides thus:” splitting of tenders to enable the evasion of any thresholds set.. Section 58(5) any person, who while carrying out his duties as an officer of the Bureau , or any procuring entity  who contravenes any provisions of the Act  commits an offence and is liable on conviction to a cumulative punishment  of (a) a term of imprisonment of not less than 5 calendar years without any option of fine“
Under Section 58 (3) ( a & b) prosecution can be undertaken by AGF either by himself or by any officer authorized by him, or by the AG of any State, after consultation with him, or by any legal practitioner authorized  by him, based on request of the relevant authority. It is instructive that the appellants were not charged under the Public Procurement Act. Why did the Supreme Court reach for that law?
Finally, when the appeal came before the Supreme Court for hearing, the matter had become an academic matter. It was no longer a life issue, for the convicts had served their terms. And the Supreme Court has repeatedly admonished counsel that it will only take life issues and not treat academic natters. Rather than being granted a “judicial pardon”, the appellants ought to have been advised to try their luck with the Executive under the prerogative of mercy provisions in the Constitution. By law, a full pardon granted under the prerogative of mercy provisions in the Constitution, will obliterate the record of  conviction and the taint of sentence and imprisonment.