ALHAJI ZANNA MAIDERIBE v. FEDERAL REPUBLIC OF NIGERIA

CORAM

PARTIES

ALHAJI ZANNA MAIDERIBE APPELLANTS

FEDERAL REPUBLIC OF NIGERIA RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

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, which discharged its functions under the Act between 2001-2003, when their tenure expired. Following the dissolution of the Board, a Contract Review Committee was appointed to examine the contracts awarded by the Board in view whether or not there had been any impropriety in the discharge of the responsibilities. Consequent upon which the Appellant, the Chairman and other members of the Board were arraigned before the High Court of Justice of Lagos State at Ikeja, where they were jointly charged on 68 counts ranging from, conspiracy to inflate contracts, the offences of inflation of contracts, abuse of office and disobedience to lawful order issued by constituted authority, all contrary to Section 104,203 and 517 of the Criminal Code Law of Lagos State 1994. The learned trial Judge in his judgment, discharged and acquitted the Appellant and the 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 them 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, appealed against the judgment on substantially similar grounds of appeal to the Court of Appeal where the Court dismissed their appeal. Aggrieved with the decision of the Court of Appeal, the Appellant is now on a further and final appeal to the Supreme Court.

HELD

Appeal Allowed

ISSUES

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). Whether the learned Justices of the Court of Appeal were right in affirming the decision of the learned trial Judge that the 5th Appellant was guilty of the offences of disobedience to lawful orders and abuse of office laid against the 5th Appellant in counts 9, 10, 11, 12, 15, 16, 19, 20 – 29, 31 – 44, 46, 49, 50, 50, 60, 61, 64, 65 and 67 of the amended information having regard to the totality of the evidence before the trial Court and the ingredients of the said offences. Whether or not the learned Justices of the Court of Appeal were right in law in affirming the decision of the learned trial Judge that the prosecution had established beyond reasonable doubt the case of conspiracy to disobey a lawful order against the 5th Appellant and the other Appellants as laid in count 8 of the amended information having regard to the totality of the evidence as well as the ingredients of the offence of conspiracy.

RATIONES DECIDENDI

ORDER – DEFINITION OF AN ORDER

“An order is defined in Blacks Law Dictionary Fifth Edition at page 988 as a mandate; precept; command or direction authoritatively given, rule or regulation, direction of a Court or Judge made or entered in writing and not included in a judgment. The case of Abubakar v. B. O. & A. P. Ltd. (2007) 18 N.W.L.R. (Pt. 1066) 319 at 384 where this Court said an order contained in a legal notice qualifies as an existing law by virtue of Section 274(b) of the 1999 Constitution…”

CIRCULARS – MEANING OF CIRCULARS

“In Administrative Law Book Eight Edition coauthored by Professor W. Wade and C. Forsyth at page 851 throws light on the status of Departmental Circulars generally. Such circulars are –
“a common form of administrative document by which instructions are disseminated; … Many such circulars are identified by serial numbers and published and many of them contain general statements of policy; …….. They are therefore of great importance to the public giving much guidelines about Governmental organization and the exercise of discretionary powers. In themselves they have no legal effect whatsoever, having no statutory authority.”

PUBLIC SERVICE OF THE FEDERATION – STATUTORY DEFINITION OF PUBLIC SERVICE OF THE FEDERATION

“Another question raised by learned Counsel to the Appellant and the Respondent in relation to the count under Section 104 of the Criminal Code is whether the Appellant who was undoubtedly a member of the Board of the Nigerian Ports Authority, was a person employed in the Public Service of the Federation of Nigeria, this question is fully answered by Section 318(e) of the 1999 Constitution of the Federal Republic of Nigeria as amended where public service of the Federation is defined as service in any capacity in respect of the Government of the Federation and includes service as;…
“(e.) Staff of any statutory Corporation established by an Act of the National Assembly.”
The Nigerian Ports Authority no doubt is a statutory corporation established by an Act of the National Assembly CAP N126 of 2004. However the Appellant not being a staff of the Authority, cannot come within the definition of a person employed in the service of the Authority to support his conviction for the offence under Section 104 of the Criminal Code Law of Lagos State and for this reason the Appellant’s conviction and Sentence for the offence must be set aside and it is hereby set aside.”

OFFENCE OF CONSPIRACY- WHEN IS THE OFFENCE OF CONSPIRACY ESTABLISHED?

“The offence of conspiracy can only be said to have been established where there is a common criminal design or agreement by two or more persons to do or to omit to do an act criminally. Since the gist of the offence of conspiracy is embedded in the agreement or plot between the parties, it is rarely capable of direct proof. See Patrick Njovens & Ors. v. The State (1973) 5 SC 17, Dabo & Anor. v. The State (1977) 5 SC 197; Erim v. The State (1994) 5 N.W.L.R. (pt. 346) 522 and Oduneye v. The State (2001) 2 N.W.L.R. (pt. 697) 311 at 325.”

CRIMINAL OFFENCE- EFFECT OF FAILURE TO ESTABLISH AN ELEMENT NOT CONTAINED IN THE LAW CREATING AN OFFENCE

“Failure to prove an element not contained in the law creating the offence is fatal to the case of the respondent. The decision of this court in the case of Agumadu v. The Queen (1963) 1 All NLR, 203 is here in point.”

ELEMENT OF AN OFFENCE- DUTY OF THE PROSECUTOR TO PROVE ALL ELEMENTS OF AN OFFENCE STATED BY HIM.

“Since prosecutor deemed it fit to make intent to defraud an element of the offence charged, he has a duty to prove the intent beyond reasonable doubt irrespective of the fact that the law creating the offence did not include intent to defraud as an element thereof. See Agamadu v The Queen (1963) 1 All NLR 203 cited in the appellant’s brief. Failure to prove the said element means that the prosecution has failed to prove its case beyond reasonable doubt.”

COURT- DUTY OF THE COURT IN A CRIMINAL TRIAL.

“The prosecution should not ride rough – shod of the Constitution and it is the sacred duty of the Judges not to bow to public sentiments in finding an accused person guilty. After all we operate the accusatorial system of jurisprudence where an accused is presumed innocent until he is proved guilty.”

CASES CITED

Not Available

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria, 1999|Criminal Code Law of Lagos State|

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