Imbalance in Criminal Justice System

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The conviction and sentencing of former NIMASA boss, Calistus Obi, to seven years imprisonment for N225million fraud with an option of 42million fine may have again exposed the imbalance in Nigeria’s criminal justice system, Davidson Iriekpen writes 

The imbalance in Nigeria’s administration of criminal justice system again came to the fore recently when

a Federal High Court in Lagos sentenced a former acting Director-General of the Nigerian Maritime Administration and Safety Agency (NIMASA), Calistus Obi, to seven years imprisonment for N225million fraud and given an option of a meagre fine of 42million. The court found Obi guilty of conspiring with one Dismal Alu Adoon using two firms, Grand Pact Limited and Global Sea Investment, to convert N225 million belonging to NIMASA to personal use.

The case started when Obi, a former  Executive Director, Maritime Labour and Cabotage Service at NIMASA, took over in acting capacity after the former Director General, Dr. Patrick Akpobolokemi, was sacked and charged with five separate charges of fraud and theft. The former acting director general who was appointed ostensibly to sanitise and cleanse, got into a position of authority and began to line his pockets in cahoots with others.

This led the Economic and Financial Crimes Commission (EFCC) to arraign him and one Dismal Alu alongside two firms, Grand Pact Limited and Global Sea Investment on an eight-count charge bordering on converting the sum of N225million belonging to agency to their own.

In the course of the proceedings, the EFCC called eight witnesses and tendered 32 exhibits. At the close of its case on November 11, 2016, the defendants filed a no-case submission, insisting there was no prima facie case against them. But in a ruling on February 21, 2017, Justice Mojisola Olatoregun dismissed the no-case submission and ordered them to enter their defence.

The judge, delivering her judgment at the end of the proceedings, held that the prosecution proved the charges against the defendants beyond reasonable doubt and consequently convicted the defendants.

During the sentencing, the EFCC urged the court to impose the maximum punishment prescribed by the law on the convicts. Its  lawyer, Mr. Rotimi Oyedepo, told the judge that Section 15(3) of the Money Laundering (Prohibition) Act, which Obi and Alu were convicted of violating, prescribed a maximum prison term of 14 years for an offender. Oyedepo said Obi and Alu’s case had presented the judiciary with “an opportunity to send a clear signal to public servants and those entrusted with public offices not to breach the trust reposed in them.”

 He said in addition to the 14-year imprisonment, the convicts should be made to refund to the federal government the public funds they converted to their own. As for the two firms, the prosecutor said the court should, in line with Section 15(4)(a)(b) of the Money Laundering (Prohibition) Act, order the withdrawal of their licences, while they should also be fined 100 per cent of the  money they aided the other convicts in converting. He specifically asked the court to order the forfeiture of Ladiva Hotels and Event Limited which it said was acquired with proceeds of crime.

Instead of imposing a heavier sanction on the convicts which could have served the purposed deterrence, many were surprised to see that what Justice Olatoregun handed down was not only tantamount to a slap on the wrist but a shame and an outright disservice to Nigeria’s administration of criminal justice system.

She not only sentenced Obi and Alu to seven years imprisonment each but gave them an option to pay a meager sum of N42million. She also declined to order the forfeiture of assets seized from the convicts as prayed by the EFCC.

Observers have said the Obi’s case shows how imbalanced Nigeria’s administration of criminal justice system is. They believe that when it comes to sentencing the poor or downtrodden who steal phones, food items, clothes, internet fraud, and others, the courts are always more decisive, but when it comes sentencing the rich politicians, businessmen and top public officers, it is always a slap on the wrist.

They further wondered why in the Obi’s case, the judgment was an opportunity for the judiciary to send a strong message to public thieves that the country has had enough of their malfeasance.

To them, more ridiculous perhaps, was the reason given for the fine – prison congestion. They therefore wondered when congestion in prisons has become a sufficient reason to let the high and mighty off the hook whereas cognisance is hardly ever given to this obvious incapacity when the poor and downtrodden are involved.

“It seems that Nigerians on the lower rungs do not qualify for such consideration on the basis of prison congestion.  As it turned out, the unpatriotic public officials whose insidious activities contributed in one way or the other to the general incapacity and degeneration of facilities within the system are the ones benefiting from such sordid state of affairs,” said one analyst who spoke THISDAY account of anonymity.

For instance, on April 19, 2019, a 20-year-old Emmanuel Obinna, who was a guest at Villas Hotel Akowonjo Street, Egbeda, Lagos, sentenced to one-year imprisonment for stealing a cell phone, and a wristwatch and N13,000 cash from other guests at the hotel.

The prosecutor, Sgt. Godwin Oriabure, had told the court that the defendant, had at about 7p.m. on February 19, stolen some items from other guests at Villas Hotel on Akowonjo St., Egbeda, Lagos. He said that the defendant, who claimed to be celebrating his birthday at the hotel, stole the items from guests that had lodged there. He said that the defendant stole an Itel phone valued at 58,000, a Bluetooth wristwatch valued at N43,000 and cash of N13,000 from Miss Halima Kabiru and Mr. Adebayo Olawale. The offences contravened Section 287 of the Criminal Law of Lagos State, 2015 (Revised).

Also, in Benin City recently, a 33-year-old man, Ibrahim Samuel,  was sentenced to 18 months imprisonment for stealing six electrical fuse and five lengths of Copper wires belonging to the Benin Electricity Distribution Company (BEDC).

Furthermore, Justice Jide Falola of the Osun State High Court in Osogbo sentenced a 31-year-old man, Kelvin Igha Igbodalo to 45 years imprisonment for stealing a Sony Ericson mobile phone that is not worth N7,000. Igbodalo, who was arraigned on a six-count charge of conspiracy, obtaining by false pretence, stealing, impersonation and advance free fraud, pleaded guilty to the charges.

Consequently, Justice Falola sentenced him to 10 years in prison for each of the first three charges and five years each for the last three counts, amounting to 45 years. But those who fleeced the country of multimillions and multibillions of naira was given the options to pay paltry sums as fine!

It has become a known fact that Nigeria’s criminal justice system favours only the rich and mighty, leaving the indigent to wallow. For instance, a report released by the EFCC recently said it secured 312 convictions but what it did not inform Nigerians are who this 312 convicts are. Investigation has revealed that almost all the convicts are indigent who embark on petty fraud. The rich politicians, businessmen and top civil servants always know how to compromise the system to stall their arrest, trial and conviction.

By virtue of section 17 (2) (a) of the 1999 Constitution (as amended), every citizen shall have equality of rights, obligations and opportunities before the law. This is not the case in practice, as the rich and poor defendants are not treated equally by the criminal justice administrators. 

For instance, penultimate week, the EFCC after prosecuting the former Governor of Gombe State, Danjuma Goje for corruption for eight whopping years, withdrew from the case. Goje who governed his state from 2003 to 2011,  and currently serving his fourth term in the senate, was prosecuted for allegedly misappropriating N25 billion while in office as governor.

The decision to withdraw from the case came after the former governor stepped down from the race for Senate President in the ninth National Assembly. He stepped down after a meeting with President Muhammadu Buhari who reportedly urged him to support his colleague, Ahmed Lawan.

Goje later said he stepped down for Lawan out of respect for the party and  Buhari. According to  reports, when Goje’s corruption trial came up for an emergency hearing before Justice Babatunde Quadri of the Federal High Court II in Jos, the EFCC counsel, Wahab Shittu, told the court the agency was withdrawing from the case and handing it over to the office of the Attorney-General of the Federation (AGF) for continuation.

“My Lord, this case was earlier adjourned for June 20 for the continuation of hearing, but then we are here today on the latest development on the matter. We as EFCC counsel are withdrawing from the matter and handing it over to the office of the attorney-general for continuation with the prosecution. As you can see in court today is a state counsel from the AGF’s office to formally take over this case from us,” EFCC counsel was quoted to have said.

While many Nigerians are still trying to come to terms with the insincerity of a government which is constantly claiming to be fighting corruption, last week investigation revealed that more than one year after the Court of Appeal in Abuja sentenced a former Assistant Director in the Federal Civil Service, John Yakubu Yusuf, to a two-year jail term upon his conviction for the theft of about N24 billion from the Police Pension Funds, he was still walking about as a free man. Over a year after the March 22, 2018 judgment of the Court of Appeal, which reversed an earlier judgment of High Court of the Federal Capital Territory (FCT) and sentenced Yusuf to a cumulative term of six years (two-year per count on a three-count charge), he has not been made to serve the jail term.

Checks added that the agency that prosecuted the case and appealed up to the Court of Appeal, the EFCC, failed to ensure the enforcement of the judgment given in its favour, as the convict is currently living as a free man and has not made any further refunds in contravention of the express orders of the Court of Appeal.

The only excuse his lawyer could give for this is that his client had since appealed the Court of Appeal judgment at the Supreme Court, even when there is stay of the execution of the judgment.

Recall that following a plea-bargain arraignment with EFCC, Yusuf had pleaded guilty to a three-count charge in which he was accused by the EFCC of stealing about N24 billion from the Police Pension Funds.

Based on his plea, Justice Abubakar Talba of the High Court of the FCT in Gudu, in a judgment on January 28, 2013, convicted and sentenced him to a two-year imprisonment per count with an option of N250,000 fine per count. Yusuf instantly chose the fine option and paid N750,000 in 2013.

Embarrassed by the manner the judge handled the Yusuf case and the outrage it generated across the country, the National Judicial Council (NJC) castigated Justice Talba for what it called “unreasonable exercise of judicial discretion” and suspended him for 12 months without pay.

Consequently, the EFCC appealed Talba’s decision and, in its judgment on March 22, 2018, the Appeal Court, Abuja, upheld the prosecution’s appeal, upturned Talba’s judgment and imposed two years’ imprisonment per count (without an option of fine) and ordered Yusuf to refund N22.9 billion to the federal government.

When asked why Yusuf was not serving his jail term, EFCC’s spokesman, Tony Orilade, argued that it is not part of the agency’s responsibilities to ensure that a defendant against whom it secured conviction and sentence serves the jail term.

He said: “After a successful appeal by the EFCC, the appellate court, on March 22, 2018, upturned Justice Talba’s judgment and handed Yusuf a six-year jail term. He was further asked to pay a more adequate fine of N20 billion, N1.4 billion and N1.5 billion on counts 17, 18 and 19, totalling N22.9 billion. If there is any question(s) on the whereabouts of the convict, it should not be directed at the EFCC but the relevant agency that should take custody of Yusuf.”

Nigerian Prisons Service (NPS) Spokesman, Francis Enobore, said he was not familiar with the Yusuf case.

He argued that it was impossible for the prison service to, on its own, scout for individuals to be imprisoned. He noted that it was the duty of the prosecuting agency, with arresting powers, to ensure that a person against whom it secured conviction and sentence is delivered to the prison authorities, accompanied with the decision of the court, for the purpose of serving the sentence.

He added that in the case of the EFCC, there ought to be no excuses because the commission carries out arrests and has the power to ensure that a convict is delivered to the prison authorities to serve his/her jail term.

It is against this background that a human rights lawyer, Femi Falana SAN, recently accused those he described as “corrupt politicians and rich businessmen and their lawyers of hijacking the criminal justice system and working together to frustrate the effective prosecution of corruption cases pending in several courts. Falana said this in a paper presented at the 2019 Law Week of the Epe Branch of the Nigerian Bar Association, Epe, Lagos.

 In the paper titled: ‘The Danger of Unequal Criminal Justice System in Nigeria,’ the senior lawyer urged progressive lawyers to team up with other patriotic forces to ensure that all defendants are treated equally under the criminal justice system. He said apart from two former governors, namely: Messrs Joshua Dariye and Jolly Nyame, the list of convicted persons  is made of lowly placed individuals in the society.  He contended that owing to abuse of court process, rich defendants have continued to frustrate their prosecution with the connivance of some senior lawyers.