Alhaji Zanna Maideribe V. Federal Republic Of Nigeria (2013)

LAWGLOBAL HUB Lead Judgment Report

MAHMUD MOHAMMED, J.S.C.

The Appellant was a member of the Board of the Nigerian Ports Authority Lagos one of the Parastatals under the supervision of the Federal Ministry of Transport. The Authority was established by an Act of the National Assembly, the Nigerian ports Authority Act Chapter N.126 Laws of the Federation of Nigeria 2004. The Board of the Authority under which the Appellant served, discharged its functions under the Act between 2001 when the Chairman and members of the Board were appointed and 2003 when the tenure of the Chairman and members of the Board terminated following the dissolution of the Board. At the end of the tenure of the Appellant, the Chairman and other members of the Nigerian ports Authority Board who served with the Appellant between 2001 and 2003, a Contract Review Committee was appointed to examine the contracts awarded by the Board on which the Appellant served, with the view of determining whether or not there had been any impropriety in the discharge of the responsibilities of the Appellant, the Chairman and other members while serving on the Board during the period of their tenure. Following the indictment of the Appellant, Chairman and members of the Board in the Report of the Contract Review Committee, the Appellant, Chairman and other members were arraigned before the High Court of Justice of Lagos State at Ikeja where they were jointly charged in 68 counts in the Amended Information dated 28th October, 2008.

In counts 1 – 7, the Appellant and his co-accused persons were charged with the offences of inflation of contracts. In count 8, on the other hand the accused persons were charged under Section 517 of the Criminal Code Law of Lagos State 1994 for conspiracy to commit the offences they were also charged with under Sections 104 and 203 of the Criminal Code of Lagos State for abuse of office and disobedience of lawful order issued by constituted authority. In counts 9 – 57 on the otherhand the accused persons were charged with the offences of disobedience to lawful order issued by constituted authority under Section 203 of the Criminal Code Law of Lagos State 1994. The last charge against the accused persons in counts 59 – 68, is for the offences of abuse of office under Section 104 of the Criminal Code Law of Lagos State 1994.

In order to prove the offences for which the Appellant and his co-accused persons were charged with in the 68 counts at the trial High Court, the prosecution called 10 witnesses and tendered a number of documents before closing its case. The Appellant on his part did not testify in his defence but chose to rely on the evidence of the first accused person Chief Olabode George who was the Chairman of the Board of the Nigerian Ports Authority where the Appellant served as a member between 2001 and 2003 and was the only accused person who gave evidence at the trial Court.

At the end of the final addresses of the learned senior Counsel and Counsel to the Appellant and his co-accused persons and the prosecution, the learned trial Judge in the judgment delivered on 26th October, 2009, discharged and acquitted the Appellant and his co-accused persons of the offences of inflation of contracts among others in counts 1 to 7, 13, 14, 17, 18, 30, 31, 45, 47, 48, 58, 62,63, 66 and 68 of the Amended Information but found the Appellant and his co-accused persons guilty as charged in respect of all the remaining counts.

The Appellant as well as the other co-accused persons were sentenced to 2 years imprisonment without an option of fine. Dissatisfied with this conviction and sentence by the trial Court, the Appellant as well as the other persons convicted along with him, lodged appeals against the judgment on substantially similar grounds of appeal. The Appellant’s appeal together with the appeals of the other persons convicted with the Appellant were heard and dismissed by the Court of Appeal Lagos Division in its judgment delivered on 26th October, 2009 in which the conviction and sentence of the Appellant and other persons convicted and sentenced along with him were affirmed. Being dissatisfied with the decision of the Court of Appeal, the Appellant is now on a further and final appeal to this Court against the affirmation of his conviction and sentence by the Court of Appeal.

In line with the requirements of the Supreme Court Practice Directions No. S.1.00 of 15th July, 2013 which made provisions for expeditious administration of criminal appeals arising from corruption related offences, the Appellant’s application for extension of time to appeal and extension of time to file the appellants brief of argument and to deem same Notice and Grounds of Appeal and the Appellants brief of argument as properly filed and served to facilitate the hearing of the appeal, were taken on 26th September, 2013 and granted by this Court as the learned Counsel to the Respondent had no objection to the applications. Consequently this appeal was heard on the Appellant’s brief of argument deemed filed and served on 26th September, 2013 and the Respondent’s brief of argument also deemed properly filed and served the same day as the Appellant’s right to file an Appellant’s Reply brief was waived by him through his learned Counsel.

The Appellants brief of argument contains as many as 9 issues for determination distilled from the 16 grounds of appeal filed in the Appellants Notice of Appeal. These issues are –

“ISSUE ONE

Whether or not the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial Judge that Exhibit P.3, the administrative circular issued by Honourable Minister of Finance on policy guidelines for the procurement and award of contracts in Federal Government Ministries and Parastatals qualifies as a Lawful order under Section 203 of the Criminal Code of Lagos State and does not violate Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This issue is covered by ground 8 of the notice of appeal.

ISSUE TWO

Whether or not the learned Justices of the Court of Appeal were right by not holding that the jurisdiction to try the 5th Appellant for the offences for which the 5th Appellant was tried and Convicted is exclusively vested in the Federal High Court by virtue of the provisions of Sections 251 of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

This issue is distilled from grounds 9 and 10 of the Notice of Appeal.

ISSUE THREE