Inflation of Contract

JOHN AFOLABI FABIYI, J.S.C. (Delivering the Leading Judgment): This is an appeal by the appellant against the judgment of the Court of Appeal, Lagos Division (‘the court below’ for short) delivered on 21st January, 2011 wherein the conviction and sentence of the appellant by the High Court of Lagos State, Ikeja Division (‘the trial court’ for short) on 26th October, 2009 was affirmed.
It is apt to state briefly the relevant facts of the matter culminating to this appeal. The appellant was, at all material times, the Chairman of the Board of Directors of Nigeria Ports Authority (‘the Authority’ for short). He was charged before the trial court along with the Managing Director of the Authority and four available members of the Board as well as others said to be at large. They all held office from 2001 – 2003.
On 8th August, 2008, the appellant along with five others and those said to be at large were arraigned on 163 count information. The appellant pleaded not guilty to all the counts. The Attorney General of the Federation amended the information dated 24th October, 2008 in which the counts were pruned down to 68. The appellant again, pleaded not guilty to the new counts.
In sum total, the appellant along with others were alleged to have exceeded the limit set to their authority to award contracts and contrived to bring the contracts within their limits by splitting them while also inflating their prices. The evidence adduced on behalf of the prosecution point at the direction that the contracts awarded were appraised by experts employed by the Authority. The said experts recommended the contractors to whom the contracts were subsequently awarded. The prices indicated by the experts or the contractors recommended by them were never rejected by the Board. The experts were not interviewed in the course of the investigations. They were not called as witnesses and were not charged with any of the alleged offences. All counts upon which the appellant was convicted, alleged that he committed same with intent to defraud the Authority. Evidence proffered by the prosecution showed that the appellant derived no gain whatsoever from what was done and did not set out to do so.
The prosecution called 10 witnesses in a bid to establish the 68 counts which can be grouped as follows:-
1. Counts 1 -7 – Offences under the Corrupt Practices and Other Related Offences Act, 2000; relating to inflation of contract Prices.
2. Count 8 – Conspiracy to disobey lawful order issued by a constituted Authority contrary to section 517 of the Criminal Code Cap. 32 Vol. 2 Laws of Lagos State of Nigeria 1994.
3. Counts 9-57 – Disobedience of Lawful Order contrary to section 203 of the said Criminal Code.
4. Counts 58 – 68 – Abuse of Office contrary to section 104 of the said Criminal Code.
The appellant herein testified on behalf of the other Board members who were put on trial. He identified Exhibit D4 as the guidelines in use at the time of their assumption of office. He denied any collusion among the appellants to split or inflate any contract brought before the Board for approval by the Management. He denied that he and the other appellants conspired to disobey lawful orders. He stressed that P.W.4 only brought a photocopy of a Circular – Exhibit P3 to the Board meeting of 12th November, 2002 which he ordered should be cleared with the Minister of Transport. But it was not done by the Secretary to the Board. He said P.W.4, the representative of the Minister who was always present at most Board Meetings never opposed decisions reached by the Board. He asserted that all contracts originated from below the Board level where Appraisal Officers carried out market survey and price intelligence before advising on the sum for which contracts should be awarded. He felt that if the contents of Exhibit P3 had been adhered to at that time, port activities would have been crippled.
The appellant admitted that the Board continued to use the 1999 guidelines pending the time the Minister replied the letter of the Board; as he was obliged to do. He said he did not know if contracts were split or inflated by Management and that there were professionals below the Board level who had the responsibility to appraise contracts. The Board was only to approve if satisfied with Management proposals.
The learned trial judge strenuously garnered evidence adduced by the parties and was duly addressed by an array of senior counsel/counsel on both sides of the divide. In his judgment delivered on 26th October, 2009 he discharged and acquitted the appellant and others on counts 1-7 relating to inflation of contracts. He found the appellant along with others guilty of conspiracy to disobey lawful order issued by constituted Authority. In respect of counts 9-57 which are similar in tone and purport, he convicted them on 40 counts touching on disobedience of lawful order contrary to section 203 of the Criminal Code. As well, he convicted the appellant and others in respect of five similar counts relating to abuse of office contrary to section 104 of the said Code.
The appellant felt dissatisfied and appealed to the court below against his conviction and sentence on the 28th day of October, 2009 on grounds which were later amended. The court below heard the appeal and on 21st January, 2011, it delivered its judgment wherein it dismissed the appeal by the appellant and others.
The appellant felt irked by the stance of the court below and has appealed to this court. Briefs of argument were duly filed on behalf of the parties. On 26th September, 2013 when the appeal was heard, learned senior counsel for the appellant adopted and relied on the brief and Reply brief filed on his behalf. The respondent’s brief was also relied upon by counsel. As well, each of them made oral submissions to clear some salient points.
In the brief of argument filed on behalf of the appellant on 30th April, 2012, eight (8) issues were couched for determination of the appeal. They read as follows:-
“Issues for Determination
1. Whether, having made intention to defraud an element of the offences charged, the prosecution was bound to prove that element in the light of the decision of the Supreme Court in AGUMADU V. THE QUEEN (1963) 1 ALL NLR 203 to the effect that the onus is upon the prosecution to prove the offence as charged irrespective of the provisions of the statute creating the offence and if so whether their Lordships of the court below were wrong in holding that because the statute creating the various offences did not make intention to defraud an element of the offences charged, the prosecution was not bound to prove that element even though it was made an element of the offences charged and in spite of the fact that the appellants were thereby gravely prejudiced. (Arising from Ground 1 of the Grounds of Appeal).