CORAM

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OYEBISI FOLAYEMI OMOLEYE (PJ)

JAMES SHEHU ABIRIYI

SAIDU TANKO HUSAINI

OYEBISI FOLAYEMI OMOLEYE (PJ)

OYEBISI FOLAYEMI OMOLEYE (PJ)

OYEBISI FOLAYEMI OMOLEYE (PJ)

JAMES SHEHU ABIRIYI

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PARTIES

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   BALA JAMES NGGILARI

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, COURT, CRIMINAL LAW AND PROCEDURE, JUDGEMENT AND ORDER, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant, James Bala  Nggilari, the immediate past Governor of Adamawa State and the 2nd and 3rd Respondents were arraigned on a six count charge before the High Court of Adamawa State, Yola Judicial Division. It was the prosecution’s case that the Appellant sometime in 2016 allegedly conspired with the 2nd and 3rd Respondents who were the Secretary and the then Commissioner of finance to the erstwhile Government of Adamawa State respectively, to violate public procurement process, by awarding a contract for the supply of Twenty Five units of operational vehicles, Toyota Corolla(1.8 liters), 2015 model at the total costs of One Hundred and Sixty-Seven Million, Eight Hundred and Twelve Thousand, Five Hundred Naira (N167,812,500.00), in favour of one El-Yadi Motors Limited, contrary to the provisions of section 96(1) punishable under section 97(2) of the Penal Code and Sections 8(1) (b), 18 (1) (b) and (c), 35 (1) and 41(2) punishable under Section 58(5) of the Public Procurement Law of Adamawa State, 2013 respectively. The Appellant testified that he gave his approval for the procurement of the motor vehicles for the State Commissioners at a period of emergency because of the operation and insurgency of the terrorist group known as Boko Haram in Adamawa State at the material time hence the usual procurement procedures could not be complied with. At the close of trial and written addresses of Counsel, the trial judge in his judgement discharged and acquitted the 2nd and 3rd Respondents on all counts with which they were charged whilst the Appellant was discharged on count 1, which was a conspiracy count but found guilty and convicted on counts 2, 5, 8, 12 and 15 being additional five counts with which he was charged. He was consequently sentenced to a mandatory five years term of imprisonment. Aggrieved with the decision of the trial court, the Appellant has appealed against same.

 

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HELD

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Appeal Allowed

 

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ISSUES

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Whether the Appellant was charged under a non-existent law and if not (which is not conceded), whether counts 2, 5, 8, 12 and 15 under which the learned trial Judge convicted the Appellant disclosed no offences either because they failed to specify essential elements of the offences charged or included extraneous elements unknown to law?

 

Whether the learned trial judge erred in law when he held that the Appellant had violated the provisions of the Adamawa State Procurement Law in spite of the fact that all the evidence pointed to the fact that the Appellant did no more than approve (as charged) the contract initiated by the 2nd accused and processed by the 3rd accused and in spite of the fact that both the 2nd and 3rd accused were obligated by law to comply with all the procedure and processes leading to the award of the contract?

 

 

Assuming, without conceding, that the Appellant was obligated to comply with the relevant procurement procedures, whether the circumstance of having purchased the vehicles under an emergency did not operate to exonerate the Appellant from all blame with particular regard to the fact that there was no evidence of any corrupt or other inferior motive on the part of the appellant?

 

Whether the Learned Trial Judge erred in law when he held that S.24(4) of the procurement law Adamawa State “accommodate the Appellant as a procuring entity” and being a procuring entity he ought to comply with the procurement law of Adamawa State in spite of the fact that the evidence adduced by the prosecution witnesses was to the effect that the procuring entity for purchase of cars, the subject matter of the trial, was the Ministry of Finance, Adamawa State and it was never the case of the prosecution that the appellant acted as a procuring entity and the Charge before the court made no reference to S. 24(4) of the law?

 

 

Whether the learned trial judge erred in law and breached the Appellant’s right to fair hearing under S. 36(1) of the Constitution 1999 (as amended) giving rise to a failure both of duty and jurisdiction when he discountenanced issue 3 raised by the Appellant as to “whether having regard to the clear and extant provisions of the public procurement law of Adamawa State 2013, the 1st defendant is a public officer within the meaning of section 58(1) of the said law and thereby exclude”, on the ground that the amendment to the charge effected by the prosecution had made the issue irrelevant?

 

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RATIONES DECIDENDI

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OFFENCE – WHETHER A MIS-DESCRIPTION OF THE LAW UNDER WHICH A CHARGE HAS BEEN PREFERRED RENDERS THE OFFENCE CHARGED WITH AS ONE NOT KNOWN TO LAW

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“The law is extremely robust that once an offence described in a charge is one created by a law or statute named in the charge and that statute is in force in the territory whereat the offence was alleged to have been committed, it will be immaterial to assert that an error has been committed in stating the written law or the particular section of the law under which the charge has been preferred, unless it can be shown that such error has in fact prejudiced or misled the accused person. Equally trite is the law that, a mere misdescription of the law under which a charge has been preferred does not necessarily render the offence charged one not known to the law at the time of its commission. As long as the charge discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge. Therefore, the charge is regarded as valid and is merely regarded as defective in form if there is any misdescription of the law under which the charge is laid. PER O. F. OMOLEYE, J.C.A

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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Adamawa State Public Procurement Law, 2013

Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Penal Code Law

 

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