Tag: conviction

  • Appeal Court reverses ex-NIMASA D-G’s conviction for contract splitting

    Appeal Court reverses ex-NIMASA D-G’s conviction for contract splitting

    The Court of Appeal, Lagos Division, yesterday reversed the five-year conviction given to ex-Nigeria Maritime Administration and Safety Agency (NIMASA) Director-General Temisan Raymond Omatseye for alleged contract splitting.

    The appellate court discharged and acquitted Omatseye of the 24 counts upon which he was convicted.

    It set aside the May 20, 2016, judgment of the Federal High Court, Lagos.

    Justice Rita Ofili-Ajumogobia had found Omatseye culpable in a N1.5 billion contract scam following his prosecution by the Economic and Financial Crimes Commission (EFCC).

    She ruled that he awarded contracts above the stipulated N2.5million threshold and, accordingly, convicted him in 24 of 27 counts. The judge discharged and acquitted Omatseye of three others.

    But the appellate court held yesterday, among others, that the court did not properly evaluate the evidence.

    The court, presided over by Justice Yargata Nimpar, resolved all five grounds of appeal in the appellant’s favour.

    Other members of the three-man panel were Justice Adejumo Obaseki and Justice Abraham Georgewill.

    In reaching its decision, the court considered four issues, including whether under Section 16(1)(A) of the Public Procurement Act 2007, approval for spending over the threshold constituted an offence.

    Justice Yargata Nimpar, who read the judgment, considered whether the court properly evaluated the evidence.

    She said: “I found that it did not.”

    “The long and short of it is that, the appeal succeeds. The prosecution should not ride roughshod over the Constitution.

    “The judiciary will do the war on corruption more harm by declaring someone a criminal, where no offence has been committed.

    “I find merit in the appeal. The conviction is hereby set aside and the appellant is hereby discharged and acquitted.”

    The appellant’s kinsmen, who were in court, burst out in jubilation after the judgment.

    The former NIMASA boss, in the appeal by his lawyer, Edoka Onyeke, argued, among others, that he was persecuted and not prosecuted.

    He said although contract splitting existed in law, approval above threshold did not.

    Omatseye accused Justice Ofili-Ajumogobia of jettisoning an exonerating January 23, 2013, letter from the Bureau of Public Procurement (BPP), which it admitted as evidence in court.

    According to him, the letter stated that the 27-count brought under sections of the Procurement Act deals with administrative breaches rather than real offences.

    Justice Rita Ofili-Ajumogobia’s judgment had been touted as the first major high profile conviction since President Muhammadu Buhari began his anti-corruption crusade.

  • Ibori appeals UK conviction

    Ibori appeals UK conviction

    Former Delta State Governor James Ibori has appealed his conviction by a British court.

    Southwark Crown Court jailed for 13 years for fraud after admitting 10 counts of conspiracy to defraud and money laundering.

    Ibori has since been released.

    A statement from Ibori’s Media Assistant, Tony Eluemunor, said the former governor’s counsel informed the Southwark London court last Friday that he had filed an appeal on Ibori’s behalf.

    He said the court adjourned proceedings on the second confiscation hearing indefinitely.

    According to him, the original three-week confiscation hearing before Judge Pitts in September 2013 was unable to make any finding of theft from Delta State.

    He said the British Crown Prosecution Service (CPS) has, since last February, been undertaking a mammoth disclosure exercise, adding that so far, substantial material evidence of police corruption and misconduct has been disclosed.

    He said CPS allegedly gagged the media from reporting on the disclosure.

    Eluemunor said: “David Rose of the London Mail and Sunday newspaper as well as other reporters  have made applications in open court for the release of this material.

    “Mr. Rose, for instance, argued it is in the public interest to do so, as the Ibori and linked cases are said to have been corrupted by Metropolitan Police corruption, prosecution misconduct and significant non-disclosure of key material which undermines the convictions.

    “A BBC report of July 2, 2016, titled ‘Ibori lawyer awarded £20,000 by Crown Prosecution Service’ mentioned police and prosecution’s misbehavior as well as their massive misleading of the courts.

    “According to the report, ‘the extraordinary payment is just the latest twist in a legal case that has led to investigations into allegations of police corruption and a cover-up of key evidence’”.

    Eluemunor said there was evidence of cover-ups which will all be presented on appeal.

    For instance, he said Mr. Lambertus de Boer, one of the bankers jailed in the Ibori case, also alleged underhand dealings that led to Ibori’s conviction.

    “De Boer, who has maintained his innocence, claimed that he is a victim of the same DfID-funded corrupt Metropolitan Police Service (“MPS”) and Crown Prosecution as was Bhadresh Gohil, a co-defendant in the V-Mobile transaction and have appealed against their convictions,” the spokesman said.

    Eluemunor alleged that the Metropolitan Police’ dishonesty began early in the proceedings, adding that transcripts reveal as early as October 2007 in the original restraint proceedings that an officer was openly caught lying during cross examination at the Southwark Crown Court.

    “What is, however, clear is that the degree of mischief, created by the Met police, has been considerable.

    “Ibori’s appeal is expected to follow the arguments Mr. Gohil and De Boer opened even as it will open several new ones. The truth will now all unravel,” Eluemunor added.

  • Habre’s conviction

    •We commend African leaders for seeing the case of the former despot to the end

    It is soul-warming that Chad’s ex-ruler, Hissene Habre, has finally been convicted of crimes against humanity, and sentenced to life imprisonment at his war crimes trial in Senegal. In addition, the judge convicted him of other criminal offences like rape, sexual slavery and ordering of killings of innocent citizens while he was leader of government in Chad. Habre’s conviction is historic because this is the first time an African Union-backed court had tried a former African ruler for human rights abuses.

    Although Habre refused to recognise the legitimacy of the court in Dakar, Senegal’s capital, the prosecutor requested a life sentence for the former Chadian president who denied accusations that he ordered the killing of 40,000 people during his rule from 1982 to 1990. He frequently disrupted proceedings while his trial lasted. He even abused those trying him and called the trial “a farce”. At a point, he had to be carried into the court after he refused to appear for trial.

    Many of his victims have been campaigning vigorously that he should be tried after he was overthrown in 1990. He was consequently arrested in Senegal where he was on exile, in 2013. Before then, a court in Belgium had issued a warrant for his arrest, claiming “universal jurisdiction”. But it was not until Senegal referred the issue to the African Union (AU) that the body asked Senegal to try the ex-president “on behalf of Africa”.

    In 2013, a court in Chad had sentenced him to death in absentia for crimes against humanity. Because of the atrocities he committed during his rule, his critics dubbed him “Africa’s Pinochet”. Survivors had recounted gruesome details of the torture carried out, with the help of his dreaded secret police, in many of his notorious detention centres in the capital, N’Djamena. He certainly ruled as if there was no tomorrow.

    Many despotic rulers in Africa have been on the same page with Mr. Habre. But his trial and conviction outside his country in Senegal, spearheaded by the AU, should send a powerful signal to other despots on the continent that no matter how long it takes, there is always a day of reckoning. Habre had been overthrown in 1990, and it was not until 2016, precisely 26 years later, that the hands of the law and justice finally caught up with him.

    The former Chadian leader no doubt deserves the life sentence, and probably more. His atrocities were innumerable, and this explained the wild, spontaneous jubilation by the victims of his government after his conviction, first in Chad, and later in Senegal. Besides, his conviction is a plus for Africa (and the AU) which has always expressed worries that the International Criminal Court (ICC) where such former leaders had been tried in the past appeared to have been set up specifically for African leaders.

    But African leaders can save themselves this kind of tragic end by making their peer review mechanism more effective. This is a good initiative that is hardly activated; it appears to be more of  rhetoric than action. Although this was not in existence as at the time Mr Habre was president, that cannot be an excuse for him not to know the difference between good and bad.

    We hope the message would sink deep, that no matter how long it takes, the long arms of the law would always catch up with despots, particularly on the African continent.

    We congratulate all those involved in pursuing Habre’s case to its logical conclusion.

  • Omatseye files appeals against conviction

    Omatseye files appeals against conviction

    Former Nigerian Maritime Administration and Safety Agency (NIMASA) Director General Raymond Temisan Omatseye has appealed against the five years jail term a Federal High Court sitting at Ikoyi, Lagos slammed on him.

    Justice Rita Ofili-Ajumogobia, pointing to approval above Omatseye’s threshold of N2.5million, sentenced him to five years imprisonment without an option of fine.

    She also sacked the ex-NIMASA director general from NIMASA.

    Arguing that his client was being persecuted and not prosecuted, Omatseye’s lawyer Mr. Edoka Onyeke said contract splitting exists in the law, “but approval above threshold does not exist”.

    Ofili-Ajumogobia, in her judgment, noted that Omatseye, who faced a 27-count bordering on bid rigging and contract splitting worth N271 million while he was the boss of the maritime regulatory agency, was on suspension.

    The lawyer alleged that the judge, who had been transferred to the Kwara State jurisdiction of the court, threw out a January 23, 2013, letter from the Bureau of Public Procurement (BPP), which cleared Omatseye of any wrong doing while in the agency.

    Onyeke added that the letter, addressed to former President Goodluck Jonathan and signed by former BPP Director General Emeka Ezeh, informed the president that after a scrutiny of the case, the bureau was of the view that the 27-count were breaches brought under sections of the Procurement Act that deals with administrative breaches rather than real offences under the Act that could attract conviction or sanctions from the regular courts.

  • Corruption: Confession or conviction

    Those who have had the impunity, to steal audaciously, from our  common patrimony, in the recent past, must be laughing at the misery, of the rest of us. They will be happy that our elite,are locked down in battle, over who to prosecute, how to prosecute, where to prosecute, when to prosecute; while the looters association of Nigeria, whose membership dates back in time, celebrate their unbelievable respite, in the early reign of their old nemesis, President MuhammaduBuhari (PMB). But it is hoped, that this orchestrated din of confusion, is not allowed to suffocate what shouldbe, a national emergency.

    For the avoidance of doubt, what is at stake, is how to recover, as much of our common patrimony, as is possible, from a rapacious elite. Of course, the first step is to determine, who and who, were involved in the stealing. The proper process would involve the auditing or probe of relevant agencies or officials of government; except where there are clear cases of stealing, which can immediately be referred to a law enforcement agency, for investigation and prosecution. Ordinarily, this should not raise any dispute, but unfortunately many are already up in arms, with this first process.

    There is the dispute, between those that want the probe to be restricted to the President Goodluck Jonathan’s era and those that insist that the probe should go back in time, to 1999. The protagonists on both sides of this argument cut across the country, but for reasons that have not been properly canvassed, eminent legal icon, Professor Ben Nwabueze, claiming to represent an Igbo interest group, argues that to restrain to the probe to only the Jonathan era, would amount to a witch-hunt. While Prof is a preeminent Igbo son, I think it is unfair, unless he said so, to represent the view of his group, as the view of the Igbos, as some commentators have claimed.

    However, the issue of who the group represent, should not detract from the substance of their argument. For in conducting a probe or an audit of the Nigerian National Petroleum Corporation (NNPC), for instance, it has to stretch back to the last audit. And it will ridiculous, an abuse of office, and a criminal connivance, for any official of the state, to gloss over, cover, ignore or condone, a criminal infraction, just because they like the face of the President, who presided, at the time,any suspected sleaze, took place. But it is will unfair to argue for, and expect, that were glaring cases of humongous stealing has been established, against an official,who helped himself under the immediate past regime, that no trial should take place, unless a similar indictment and trial, of an official of the previous era, is also afoot.

    So, what Professor Nwabueze, and all lovers of due process of law, which incorporates fair and equitable treatment of all persons, should be on the watch out for, is any unfair and unequal treatment of all citizens, by the government of PMB, in the fight against corruption. That love for due process, must however, not involve, a premeditated obfuscation of the real issues; which is, how can Nigerians encourage and support the recovery of as much of our stolen common resources, as is possible, under PMB; who clearly got a democratic mandate, from Nigerians, to wrestle corruption to the ground. Unless the procedure is manifestly unfair, it should not matter, the tongue or tribe, of those who may be caught in the web.

    The attack on Bishop Hassan MatthewKukah, for daring to ask PMB, to take it easy, with the officials of former President Jonathan, even when all that has taken place are mere threats, has shown what majority of Nigerians, would ordinarily love to do to the looters. Mob action. In the past few days, the reputation of the nationally acclaimed cleric, has been shredded. As if his advice, can be equated to the 6 billion US dollars, allegedly stolen by one Minister, under the government of President Jonathan, the armada of our national opprobrium, against those that have perpetually placed our nation among the list of failing states, in the last three decades, have been unleashed on one of our national icons.

    Perhaps Bishop Kukah, was merely living up to his professional calling, by intervening on behalf of the regime of President Jonathan. As a priest of the Catholic Church, when a sinner confesses his sins, he is asked to make some restitution, not necessary in full measure, as the priest determines, the measure of atonement. But if indeed,half of the report in the media, concerning the enormity of the financial brigandage that took place under the regime of President Jonathanis true, then, then the type of contrition, which the Bishop by his vocation is used to, would not be enough. Short of a mob action, the type of restitution needed, would be a near complete restitution.

    But would the brigands who have ran a circle around our national life, give up without a serious fight. The chances are that, they won’t. That perhaps explains the tactical manoeuvre of PMB, to find the best possible way, to corner the rats that have eaten deep, into our national treasury. The challenge faced by this government, as to how to go about this national emergency, underscores the critical incompetence of our criminaljustice system. Most likely, PMB, appreciates this fundamental challenge. That may have informed his inauguration of a Presidential Advisory Committee, led by eminent Professorof law, Itse Sagay, and populated by fecund minds, to wriggle Nigeria, out of the quagmire. What PMB therefore needs, is our national support, not orchestrated confusion.

     

     

  • Conviction possible where circumstantial evidence is conclusive

    This is an appeal against the judgment of Kebbi State High Court of Justice Birnin Kebbi Division wherein the appellants were found guilty, convicted and sentenced to death by hanging for the offences of criminal conspiracy contrary to Section 97 of the Penal Code, Armed Robbery contrary to Section 1(2) (a) & (b) of the Robbery and Fire Arms (Special Provision) Act.

    The charge was read to the accused persons. Each of the accused persons denied any involvement in the crime and pleaded not guilty to each of the counts. Their respective statements were tendered and admitted in open court. The first  accused in his statement, raised the defence of alibi. After hearing the parties and their respective witnesses, the learned trial Judge found the accused persons guilty. Dissatisfied with the judgment of the trial court, the first and third accused persons at the trial court filed Notice of Appeal containing two grounds of appeal. The appellant’s counsel formulated two issues for the determination of the appeal. They are:

    “1. Whether from the totality of the evidence adduced at the lower court the respondent proved the offences of criminal conspiracy, armed robbery and culpable homicide punishable with death contrary to Sections 97 of the Penal Code, Section 1 (2) (a & b) of the Robbery and Firearms (Special Provision) Act and Section 221 (a) of the Penal Code beyond reasonable doubt against the appellants.

    2. Whether from the fact and circumstances of this case the defence of Alibi availed the first  appellant.”

    The respondent and the court adopted the two issues as formulated by the appellant for the determination of the appeal.

    On issue No.1, Learned appellant’s counsel submitted that the respondent failed to prove the guilt of the accused persons beyond reasonable doubt. He referred to Section 135 (1) & (2) of the Evidence Act. He submitted further that on criminal conspiracy the respondent must show credible evidence of the meeting of the minds of the conspirators to perpetrate an unlawful act or unlawful act by an unlawful means. Learned appellants’counsel argued that none of the witnesses or the evidence by the prosecution fixed the appellants to the scene of the crimes they were convicted of. He referred to the evidence of the prosecution and submitted that the accused persons were not seen or arrested at the scene of the incident. Learned counsel argued that the evidence of PW3 that Salihu Buzu (the deceased) called to inform her that he saw the appellants and the other convicts in his vicinity is hearsay. He submitted that hearsay evidence was not admissible in law. He submitted further that the statement of the deceased before he was found dead did not amount to dying declaration. Appellant’s counsel argued further that the trial court based its conclusion on speculation, imagination and suspicion, adding that suspicion no matter how strong could not occasion criminal responsibility.

    Learned counsel for the respondent submitted that the prosecution at the trial court established the ingredients of the offence of armed robbery. It was submitted that the circumstances of the commission of the offence were positive direct and unequivocal and irresistibly led to the inference that it was the accused persons that committed the offences. He cited SHAZALI V STATE (1988) 12 SC (Pt 11) 58; (1988) LPELR-3040(SC).

    On Issue No.2, it was submitted for the appellant that the police did not investigate the defence of alibi raised by the first  appellant. Learned counsel submitted that failure to investigate the defence of alibi raised by the first appellant was fatal to the prosecution case. He added that it was not the duty of the accused to call witnesses to prove his whereabouts as expressed by the trial court.

    Learned respondent’s counsel submitted that the position of the law regarding alibi raised by an accused was that if the prosecution could lead strong and positive evidence which fixed the accused person which evidence the court accepted, the defence of alibi would collapse. He relied on the case of SUNDAY V STATE (2010) 6 NCC 78; (2010) LPELR-1470(SC). He pointed out that the accused persons were very well known to the prosecution witnesses before the commission of the offences. He finally urged the court to dismiss the appeal as lacking in merit and affirm the conviction and sentence passed by the trial court.

    In determining this appeal, the court pointed out that some facts are clear in this appeal.

    1. The victim of the crime, Salihu Buzu, a watchman to the filling station under construction was killed on February 21,2012 at about 4.00am at Libba village.

    2. None of the prosecution witnesses witnessed the crime.

    3. The accused persons denied any involvement in the crime and did not make confessional statement.

    4. The trial court resolved the oath against oath of witnesses who gave evidence before it. The learned trial judge found the evidence adduced by the prosecution as cogent and compelling.

    PW1 Cpl Isuwa Hamidu attached to Maiyama Division was on duty on  April 21,2012 when a case of conspiracy, armed robbery and culpable homicide was reported. He joined a team of policemen to the scene of incidence and met the deceased lying dead in an uncompleted petrol station. He noticed gun shot wounds on his chest. Not more than five meters away, he found another dead body. The two dead bodies were conveyed to the General Hospital Maiyama for post mortem examination. PW2 was the employer of Buzu (now dead) and he identified the second dead body found at the locus in quo. He had earlier on February20,2012 around 6:30pm seen him with the first and fourth accused persons along with other person at Andarai.

    According to him, the man now dead was wearing the same dress he saw him with on inner shirt and an overcoat. The PW3 was the wife of the deceased. PW6, Adamu Aliyu Libba, did not witness the crime. He only visited the scene after the incident. PW7, was the police officer who took the statement of 4th accused. PW8, Inspector Moh’d Garba gave evidence as to the exhibits recovered – namely the Toyota Corolla car ash with reg. no. AA-655-GW and a broken down gun.

    The appellants in this appeal were the first  and third accused persons at the trial court. The court noted that there was no incriminating evidence against the third accused, now the second appellant as none of the prosecution witnesses mentioned him. The court held that the finding that the second appellant was guilty was perverse.

    On the first appellant, the court noted that his conviction was based on circumstantial evidence. The court held that circumstantial evidence where cogent, conclusive and strong conviction thereon can be sustained leaving no room for other explanation except the accused person’s guilt. See NWEKE V THE STATE [2001] 4NWLR (PT 704) 588; (2001) LPELR-2119(SC). The court noted further that it was the first appellant that was seen with the man whose body was seen with that of  Buzu (the fourth accused was with them), it was the first appellant who was seen around 4.00 am on February 21,2013, shortly after the incident with his car parked on the road leading to the locus in quo. All those who saw him were apprehensive because of his reputation. The court held that it will not disturb the finding of the the trial Judge who saw and heard the witnesses.

    On the defence of alibi, the court held that if the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the court accepts, the alibi naturally collapses. IKEMSON & ORS V THE STATE (1989) NWLR (PT 110) 455; (1989) LPELR-1473(SC). The court noted that the learned trial Judge accepted the evidence of the prosecution witnesses and the defence of alibi of the first appellant therefore collapses.

    The court disagreed with the contention of the counsel for the appellants that conspiracy was not proved. The court stated the test to be applied in proof of the offence of conspiracy. See ERIM V STATE (1994) 6 SCNJ 104; (1994) LPELR-1159(SC). The court held that the circumstantial evidence adduced by the prosecution points directly to the fact that they conspired. The court held that the contention of appellant’s counsel that conspiracy was not proved hold no water.

    In the final analysis, the court resolved the two issues formulated for determination in favour of the respondent.The appeal in respect of the second appellant was allowed. His conviction and sentence was set aside. He was discharged and acquited. On the first  appellant, the court held that the appeal fails as it lacks merit. His conviction and sentence by the trial court was affirmed.

     

    •Edited  by LawPavilion

    LawPavilion Citation: (2014) LPELR-23823(CA)

     

  • Okah’s conviction

    Okah’s conviction

    LAST week, the media feasted on the news that Henry Okah, Nigerian militant leader, has been convicted by a South African court, for masterminding the 2010 Nigeria’s 50th Independence Day car bombing that killed 12 people and left several others injured.

    The interesting news was not only Okah’s conviction but the promptness of that country’s judicial system. Okah’s commendably speedy trial took three months: October, 2012 to January, 2013. Justice Neels Claassen, presiding judge at the Johannesburg High Court convicted Okah on charges ranging from conspiracy to commit terrorism, to detonating explosives, and concluded that “… the state proved beyond reasonable doubt the guilt of the accused.”

    Okah’s antecedents in terrorism gave him up because he was as far back as 2007 arrested on gun-running charges in Angola. He was transferred to Nigeria in 2008, but was never convicted. Okah was released after two years under an amnesty for oil militants, and returned to South Africa, where he has been living since 2003.The conviction has clearly shown that South Africa is no haven for international terrorists.

    The Nigerian justice dispensation train has increasingly become an embarrassment. What explanation can be given to defend the fact that Okah’s brother and two others, facing trial for a similar case can still not predict when their trial will come to an end? Their trial, which started before that of Okah in South-Africa, is still foot-dragging in the country’s court. James Ibori, former Delta State governor, who was jailed by a UK court even when the crime was committed in Nigeria would still have been standing trial, were he to still be in the country.

    Unfortunately, things seem to be getting worse in the country’s justice dispensation train. It is in this country that Ebenezer Egwuekwe, 62, aka Otokoto, from Imo State, spent 16 years behind bars before he could get justice at the appellate court. Apart from being slow, the justice chain is highly ineffective – a systemic rot that has been routinely overlooked by constituted authority. Otherwise, we expect that the killers of Bola Ige, late Minister of Justice and Attorney-General of the Federation, killed over a decade ago, should have been found. Several other notable Nigerians and even uncountable number of other citizens have been killed without any trace of their killers. Due to avoidable systemic fault, those criminals still move freely in the society, wreaking more havoc in the process.

    While it has taken the Nigerian Bar Association (NBA) the judgment in South Africa, to wake up from its deep slumber to belatedly realise the need for judiciary overhaul, we state that the refit has for long been overdue. The criminal justice system is a long chain comprising the police, the prison and the court. Except the major components of this chain become refined and reformed, it would not be long before the people lose complete interest in the judiciary, nay the criminal justice system. When that happens, it would be an open invitation to anarchy.

    The NBA and other stakeholders should speak out and positively act more to correct this anomaly because many of its members, through odious professional tactics, contribute largely to bringing the judiciary into disrepute.

    We call on Justice Maryam Aloma Mukhtar, Chief Justice of Nigeria (CJN), to quickly unfold her reform agenda for the judiciary. However, the criminal justice system would be better off if the professional delinquency of counsel, impunity of judges and tyrannical deceits of policemen can be stopped immediately.