The fundamentals of justice are tied to what the court says it is. Whatsoever thought or fashion conceived it to be, it remains at best a virtue so publicly appreciated when it is not only done, but, manifestly and undoubtedly seen to be done.
To the extent to which society determines what is good or bad, the better the government weighs such societal temper and even sublimate same as public policy and the best the court x-trays justice through the societal pulse; that being the society’s view.
The case of the Federal Republic of Nigeria V. Chief Olabode George & Ors is very startling a case to be a judicial exemplar in corruption matters in Nigeria. It is such not because the Supreme Court arrived at a judgment that was very controversial at least to Nigerians who expected much but, the fact that it has always been a case and experience for, of and on behalf of bigwigs.
The facts of the case is such that in April 2005, Chief Olabode George threatened court action over a newspaper allegation that an N85 billion scam was uncovered in the Nigerian Ports Authority (NPA) while he was chairman of the NPA board. That he described (the allegation) as senseless, baseless and thoughtless.
He was indicted by the Economic and Financial Crimes Commission (EFCC) when it was headed by Nuhu Ribadu on charges of fraud at the NPA. However, he was widely rumoured to have been shielded from prosecution by the then President Olusegun Obasanjo.
The EFCC report issued on 1st April, 2005 stated that NPA board members, including Chairman Bode George, and the management of the NPA should be held responsible for deliberate and flagrant violations of government rules and regulations governing the award of contracts, and should be sanctioned for contract splitting and inflation of contract price in utter disregard to laid down government rules and regulations. Ex President Obasanjo dismissed the findings as inconclusive, and ordered another investigation. The second EFCC report cleared Bode George.
In August 2008, the EFCC under its new head Farida Waziri arrested Olabode George in Lagos and arraigned him and four others on a 163 count charges of conspiracy, disobedience to lawful order, abuse of office and alleged illegal award of contracts worth N84 billion while he was chairman of the NPA.
After the trial had started, the EFCC reduced the charges to 63 counts. In October 2009, Bode George was found guilty and sentenced to jail for 30 months. The sentence was handed out by Justice Joseph Olubunmi Oyewole. The judge found the defendants guilty on 47 out of the 68 counts. The total sentences added up to 28 years, but the counts for disobedience to lawful order were ruled to run concurrently for six months, and the counts for contract inflation then to run concurrently for two years.
George’s lawyers filed an appeal and requested bail pending resolution of the appeal. The appeal was however refused by the court. As a prisoner, Chief Bode George and his colleagues were placed in the V.I.P. section of the prison. They were not required to wear prison uniforms, and were allowed to have meals prepared by their families what ordinarily they will not subject other prisoners to. On December 13th, 2013 the Supreme Court discharged the conviction of Bode George.
The court, headed by Justice John Afolabi Fabiyi said the EFCC had no evidence that George intended to commit fraud at the NPA, and the charges of “contract splitting” was unknown to law.
The Supreme Court decision in Bode George’s case is one indeed that has bellowed the doors of our anti-graft agencies so widely open as to give room further to ‘hit and run’ justice.
To the extent to which the Economic and Financial CrimesCommission (EFCC) in Nigeria can be deemed effective is somewhat the day they are rendered detached as brief cases of government and made transparently independent. At least, prior to the current shake up in the Magu’s led EFCC administration, their operation from 2002 till about 2011 had been not too encouraging for a body acclaimed to be fighters of systemic corruption. As reported by Human Rights Watch, it has only succeeded in trying and as well securing only four (4) convictions of high profile personages of national and political prominence, and subjected same behind the slammers since its establishment in December, 2002. It is sheer pity that by inversion, EFCC has recorded more success in cases involving less profiled personalities.
Justice John Afolabi Fabiyi (JSC) who issued a controversial verdict in favour of Chief Olabode George only compounded the efforts of the EFCC who in this case were the prosecution. The expectations of the society were high but, same went on plummet at the instance of the Supreme Court verdict. The verdict of the court was predicated on the fact for want of proof of intent. As a matter of fact, since the Economic and Financial Crimes Commission failed to establish the defendant’s intent to fraudulently stash away the finances of the Nigerian Port Authority (NPA) Board or the intent to commit a fraud, the defendant stands exonerated from all charges built against him. Or better still put in the phrases of law, ‘discharged and acquitted’.
It is very apparent to posit that the law, however strongly worded it may be is the law. But, the contemplation of law is not always written law or custom, it is Justice’s exhibition of imperviousness to official corruption for the good of the public.
The finality of the Supreme Court verdict is one that is constitutionally no doubt beyond question. Her finality of purpose lies not in the superiority of her decisions but, in the admittance of the decisions reached even per incuriam. In fact, only legislation ad hominem can alter it.
As was stated in the case of Adegoke Motors v Adesanya (1989) 3
N.W.L.R. (Pt 109) 250 at 274-275, wherein the revered Chukwudifu Oputa J.S.C alluded to the finality of the decisions of the Supreme Court when he said;
“We are final not because we are infallible, rather we are infallible because we are final. Justices of this Court are human beings capable of erring. It will be shortsighted arrogance not to accept this obvious truth”.
In the same vein, the late Justice, Kayode Eso, said in the case of Adigun v Governor of Oyo State (No 2) 2 N.W.R (Pt 56) 197 at 214-215, thus;
“The decision of the Supreme Court is final; final in the sense of real finality in so far as the particular case before it is concerned. It is final forever, except there is legislation to the contrary, and it has to be legislation ad hominem.”
Justice John Afolabi Fabiyi would not have lost anything if he had admitted his judgment reached per incuriam as far as the society perceives it to be. For such a judgment has caused more societal damage and encouraged corruption than the law ever imagined to protect and prevent.
The Bode George’s saga has made me take a very deep look at the issues of the rule of law crime, justice and the punishment in Nigeria. The rule of law may quite obviously work well in Nigeria on white paper but, as a rule of thumb, a different picture emerges- one of arbitrary arrest, incompetence and indifference. It is the perception of precious many that whatever is done in court must be geared towards societal happiness and satisfaction. From a jurisprudential perspective, Jeremy Bentham is of the view that maximum utility once attained, must be for the greatest good and happiness of the people.
The Supreme Court decision prior the whirl wind gathered from a much more satisfactory High Court decision only dissipated untimely like a lead balloon, leaving its remnants behind. The societal dissatisfaction that arose from the former has brought to question the agencies responsible for graft related matters and the Judiciary.
It is less not to say that the gravity of justice must not be subverted to sooth the appetite of a selected few. The decision reached by Justice Joseph Oyewole of the Ikeja High Court is to effect that; “When public office is abused, the entire system is assaulted.”
This must not be condoned or treated with kid gloves if the quality of services in our public life is to attain an appreciable standard of civilized world. For the right deterrent to be served therefore, sufficient fairness must be demonstrated”.
That verdict was reached in the Bode George’s case at the trial stage. It is however ennobled a judgement of sort that the Supreme Court ought to have upheld rather than upturning the lower court’s decision.
It is indeed very lachrymose a precedence to resort to and a huge question mark as to whether some of our judges indeed receive kickbacks in reaching their decisions.
The judgement of the lower court tendentiously enlivened the hopes of Nigerians, but was only short-lived at the instance of the Supreme Court verdict. This same spirits was emblazoned in the Al Mustapha’s case. The judgement delivered in said case had as its ultimate eventuate aura, a telescopic prospects of our fledging anti-graft agencies and their fight against corruption in Nigeria and as well drooped the hopes of Nigerians about the Judiciary. It will be recalled that upon the discharge and acquittal of Bode George, he had since thanked those ‘Jonathians’ who facilitated his release.
As against the EFCC’s operation in the Buhari’s led administration that has made many a convicted persons pay huge amounts of money as bail out upon conviction of official corruption, the leadership of Nuhu Ribadu as Chairman of the EFCC at its early stage who saw to the budding hopes of so many Nigerians, showed his inability when it mattered the most to successfully try prominent deviants likes Obasanjo and others.
The likes of Femi Fani Kayode, Olisa Metuh, Dakusi and his gate scandals and the likes did not and could not have eloped the dragnet of the EFFC in Buhari’s dispensation. This made the Human Rights Watch in concise expression, categorise him (Ribadu) in no different class from Farida Waziri.
The resultant effects of ‘big men’ eloping justice is that more men will keep escaping it. It has indeed been a big thought. James Ibori did, but was fortunately nabbed by an Interpol. Mustapha did and smiled home. Bode George survived it and he is comfortably enjoying himself.
It is quite not unconnected to the activities of some judges who act as harbinger of perpetrate injustice that we have still big men scampering free of justice. Transparency International in a report published a few years ago made a number of recommendations to strengthen judicial independence and combat corruption to wit:
• That judicial appointments should be made by independent bodies.
• Judges should be appointed on merit. • Judges should be liable to prosecution if corruption is suspected.
• Allegations against judges should be investigated by an independent body.
• Judges should be removed or transferred in a transparent manner according to fair standards.
Conclusively, there is a more pressing need for judges to up their game and put up a societal appearance, whilst having and operating a legal mind. With that, the future of our enforcement agencies and the court stands a chance against chance.
Written by AVST. DAVIDSON .I. OBABUEKI