Alhaji Abdullahi Aminu Tafidi V. Federal Republic Of Nigeria (2013)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

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. 2 Laws 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