Shehu Shagari, Alex Ekwueme cleared (Part 2)
Below is the full text of Mr Justice S.O. Uwaifo's panel VERDICT on the deposed President Shehu Shagari and his deputy Dr Alex Ekwueme. The verdict was signed by the panel members-S.O. Uwaifo, Mr E.O. Ugowa, Mr A. Jika Cletus Emein and Squadron Leader T. Dada. Part one was published last week.An essential element in the offence of conspiracy is that there exists an agreement between two or more persons in which a particular accused took part or to which he consented to do an act which is an offence to agree to do. The act of each of the parties in the form of a promise against promise must be seen to form part of the plot: see the observation of a former Chief Justice of Nigeria (Fatayi-Williams JSC as he then was) in Olushegun Haruna & others v. The State (1972) 8-9 S.C. 174 at 201.
The point was further explained by the present Chief Justice of Nigeria (Irikefe JSC as he then was) in Wahabi Onasanya Mumuni & others v. The State (1975) 6 S.C. 79 at 93-94. He held that in a charge of conspiracy, the prosecution initially has a duty to lead distinct evidence of the existence of the conspiracy and the involvement of each conspirator in it. He referred to what was recommended by an Australian Judge as the proper approach as follows:
"Each accused is entitled at the outset to have the evidence properly admissible against considered alone, and it is only when after such evidence so considered you find him to be a party to the conspiracy, if any, that the acts of the other conspirators can be used against him."
In other words, first it must be established that a conspiracy exists. Secondly, the evidence about particular person accused must be con- sidered separately. Thirdly, the evidence must be an admissible one not just presumption or speculation. Fourthly, the evidence must show that he is party to the conspiracy.
Conspiracy can take three graphic forms: (1) All the conspirators form a ring where every one knows the other either at the outset or at a later stage. (2) The conspirators are a crowd where some, perchance, may know others. (3) The conspirators form a chain in which case any one conspirator may not know all the other parties only that there are other parties and he may not know the full extent of the scheme to which he attaches himself besides knowing that there is a conspiratorial agreement: see R. V Murrhy 173 E.R. 505; R. Griffiths 49 Cr. App. R. 279. But any person accused of conspiracy must, so to say, touch at least one other conspirator or be touched by at least one, either through communication, interaction or understanding in constituting or furthering the conspiracy.
There is no aspect of any of these in which the subject, Alhaji Shehu Shagari, can be said to have known of, agreed to or taken part in the conspiracy to corruptly enrich the NPN or any other person or persons. Those who are said to have done what they did appear to have acted primarily in pursuit of their own personal and unrestrained interest. It appears that may be responsible for the diabolic efforts on the part of those concerned to keep the subject deaf with lack of information.
But the prosecutor, Mr Osolanke, asked us to accept that if a person ought to know what is going on, he may still be a party to the offence of conspiracy. With due respect, we do not find that to be the law. Although conspiracy can be inferred to exist as a scheme from circumstances, the involvement of particular persons is not a matter of inference but of facts or evidence properly admissible against such persons.
The prosecutor went further to say that the subject was the presidential candidate of the NPN which eventually formed the government at the centre and the subject became the Chief Executive of the government having been elected as President of the country. He then asked: "Can one really say a person in such a contract?"
We do not subscribe to any submission that presupposes that when a contract is awarded by government it must be predicated on the understanding that "kick-back" will be derived therefrom so as to put a person in the position of the subject on notice. This submission by the Prosecutor is founded on suspicion having regard to the notorious facts of official corruption. But legal issues of criminality cannot be decided on suspicion no matter how strong the suspicion may be.
A former Chief Justice of Nigeria, Alexander CJN, in Igboji Abieke & another v. The State (1975) 9-11 S.C. 99 at 104 held that a criminal case is not proved on suspicion when he observed that it is an elementary proposition of law that mere circumstances of suspicion are not sufficient to support a conviction; in other words, suspicion, however strong, cannot take the place of legal proof. We can take no other stand than one which conforms to those views.
The fact that certain members of the subjects defunct party or members of his government were said to have done what was alleged against them cannot by any rational thinking or imagination be extended to criminally affect the subject. We wish to refer to a matter of historical and legal interest in this connection. It occurred about 200 years ago in 1790 in France.
During the French Revolution, a leader of a revolutionary group Mirabeau, was indicted for treason for what some members of his group did. His speech in defence of himself which is now recorded in a book titled "World's Greatest Speeches" runs inter alia:
"I am not speaking here in order to honour popular malice, to excite bursts of hatred, to bring about divisions. No one knows better than I do that salvation of everything, lies in harmony. but I cannot help adding that to set on foot infamous arraignments, to change the administration of justice into a weapon of attack is a poor way of effecting that reunion of hearts.
The indictment described me as an accomplice, there is, then, no charge. against me excepting that of complicity. The indictment does not describe me as an accomplice in any specific act. but of a certain person alleged to be the prime mover in such an act. There is then no charge against me unless it be proved that the charges of complicity implied that I played a secondary part to a principal part, unless it be established that my conduct has been one of the mainsprings of the act.
Finally, the indictment simply describes me as the accomplice of a Mr Somebody or the other. There is, then, no charge against me unless it be at the same time proved that this prime mover is the chief culprit, and that the charges of which I am the object involve him, and imply a common plot spring from the same causes, and calculated to produce the same effects.
What, then, is the prominent part that I am supposed to have played in the events with which the indictment deals? Where are the proofs of the complicity which is being thrown in my teeth? What is the crime concerning which it can possibly be said: "He is either the author or the cause of it"?
What sort of an indictment is this, which is occupied with individual trans- gressing, concerning which there is no evidence, transgressions whose remote. causes are, nevertheless, to be eagerly sought for, without throwing any light upon their proximate causes? What procedure is this, which instigates events easily to be explained whose first aim has been to conceal real faults, and to replace them by imaginary crimes?"
That was the screaming voice of a person who felt he was being persecuted for the acts of others upon an indictment framed on untrue crimes while conceal- ing his real faults of wanting a change in the system of government. Do not think the subject should be placed in a similar situation simply to say that instead of blaming him for allowing an opportunity for a sound democracy slip away he is being accused of imaginary crimes which others may have committed.
We would rather be guided by the caution given by a great judge, John Marshall who was the Chief Justice of the Supreme Court of America for nearly 35 years in his address before the Virginia convention of June 10, 1788 also nearly 200 years ago. He said inter alia:
"Permit me to attend to what the honourable gentleman has said. He has expatiated on the necessity a due attention to certain fundamental principles, from which a free people ought never to depart. I concur with him in the propriety of the observance of such maxims. They are necessary in any government...what are the favourite maxims. .?
Shall it be a maxim that a man shall be deprived of his liberty without the benefit of law shall such a deprivation be justified by answering that the man's liberty was not taken secundum allegata et probata (i.e. according to the allegations and proofs), because he was (thought to be) a bad man?"
(3) That all civil and private liberties due to every free man in this country at the moment be restored to him, his family and retinue howsoever affected.
(Justice S.O. Uwaifo) Chairman (Mr E.O. Ugowe CP) Member (Mr A. Jika CP) Member (Sqn Ldr I. Dada) Member
The subject was the Vice-President of Nigeria on the ticket of the defunct National Party of Nigeria (NPN). He is an architect by profession whose wealth was quite substantial before he became Vice- President on October 1, 1979. The evidence is that as at that date, the total sum in all the accounts of himself, his wife and children in various banks in Nigeria amounted to N11,061,404.00. In addition he had twelve houses and eight undeveloped plots in Nigeria and one house in Nice, France.
This speech is also recorded in the When the assets "World's Greatest Speeches").
were taken on December 31, 1983, the total money in the said bank accounts was N11,203,454.00. He acquired no additional assets whether fixed, or in the form of equity or negotiable instruments. In other words, his wealth had diminished by the time he was removed from office following the military coup d'etat of December 31, 1983 which also saw his detention ever since. The following allegations have been levelled against him:
That he fraudulently inflated a contract for the provision of processed gas to Aladja Steel Company Limited from N61,570,000 to N67,117,674 and that the difference of N5,547,674 was transferred to a foreign account for his use and the use of others.
That he connived with a German called Kalus Seemuth and three Nigerians, namely, Umaru Dikko, Professor Edozien and Yahaya Dikko, and exchanged 300,000 tonnes of rice for Nigerian crude
We consider these two speeches to be relevant and appropriate in an investiga- tion into the type of case we have just concluded, in addition to the position of the law we discussed earlier on. We only oil. need to add that Mirabeau was cleared of the offence brought against him because he had not authorised his followers to commit it and was not privy to their Ekwueme Associates. action. We hold that no evidence has been led against the subject to warrant his trial for any offence known to law. Accordingly he should be given the benefit of the law by the strict observance of justice and public faith, and not further deprived of his liberty. The address by John Marshall C.J. helped to establish fundamental principles of the rule of law for the American nation. We ought to imbibe all that is good in that. We think that on the facts before us and in the absence of any other allegations the continued detention of the subject is unjustified. Therefore, we would recommend:'
(1) That the subject, Alhaji Shehu Shagari, be released from detention where he has been since over two years now.
(2) That the release be given urgent consideration.
That he influenced the award of contracts to his former associates in the defunct firm of architects called
That he corruptly enriched his former party, the NPN, to the tune of N200,000 in 1981 when the Federal Government awarded the contract for the construction of Afikpo-Ohafia road to Herma Construction (Nigeria) Limited.
At the end of the evidence of the first witness for the prosecution Lawal Marshi, an Assistant Commissioner of Police, who led the investigation team, it was obvious that the first three allegations could not be supported in the slightest degree. The evidence in connection with the first allegation as discovered during investigation is this:
The said contract was awarded for N61,570,000 to be completed in 19 months. The Estate Department of the Nigerian National Petroleum Corporation (NNPC) failed to make available what is called the Right of Way Leaves (infra- structural facilities) to the construction company-William International Group Inc of America (WIGI). The result was that the contract could not be fully executed until 40 months elapsed.
In those circumstances, WIGI asked for a N16 million as additional contract fees to meet extra costs arising from the delay. After a protracted negotiation, an amount of N5,538,674 was agreed and this was duly approved by the President-in- Council. The evidence is that WIGI insisted on payment of this amount in US dollars equivalent which was also agreed. It was this that was remitted to their account in the United States.
The investigation into the second allegation reveals that the subject met the said Mr Klaus Seemuth for the first time in the Maximum Security Prison, Kirikiri. He knew nothing of the exchange of 300,000 tonnes of rice for crude oil. Romania became indebted to the NNPC up to N110,486,140.59 for crude oil they bought. That country could not pay. A proposal was made by them to supply agricultural chemical and technological machinery to that value. Nigeria rejected that proposal.
Mr Klaus Seemuth, no doubt in pursuit of his business interest, then offered to get an American company to take the Romanian machinery and pay Nigeria in cash. An agreement towards this. In the meantime, before it could be executed, there was change of government in Nigeria. Mr Seemuth was put in detention. He has now been. released but the debt by Romania remains unsettled.
The third allegation against the subject has been explained as follows: The subject was the senior partner of Ekwueme Associates, the other partners were Martin Ijekam, W.U. Okam and John Chime. Before he assumed office as Vice-President the subject dissolved the firm. The remaining partners then established their own firms of architects. Mr Martin Ijekam formed the Swedish West African Consultants, Mr W.U. Okam formed the Integrated Consultants Architects and Mr John Chime, the Inte- grated Projects Management. The Inte- grated Consultants Architect won a contract at Abuja for N1,366,808.20, while Swedish West African Consultants won one for N992,517.12. Both contracts were said to have been executed satisfac- torily although government was still to pay N707,010.62 to the first firm and N930,302.12 to the second.
There is no evidence that the subject passed. influenced the award of the contracts nor that those architects were not of the right calibre and experience nor that the contract prices were unreasonable.
Indeed, Mr Marshi testified that the former minister for the Federal Capital Territory, Mr John Kadiya, was inter- viewed by him. He said the interview dis- closed that the subject never influenced any contract award and that contracts were awarded to recognised companies or firms who were experts in their fields and whose tenders were reasonable. Others who were awarded contracts on those grounds were Associated Consultants and Research Engineers (N972,702.52) and Structure Associates (N1,554,197.00). Now to the allegation of corruptly enriching his former party. The prosecu- tion called two witnesses to give evidence on it, apart from the testimony of Mr B.M. Jama'are who headed the investiga- tion. Mr Joseph O. Nwankwu was the chairman of the defunct NPN in Anambra State to whom a bank draft for N200,000.00 was made. A receipt wast issued to cover it. He said Mr Felix Anene Ayinotu who gave the money was one of about 87 supporters and sympathisers of the NPN who made donations to the state branch of the party at that time following an appeal made by the branch.
He said Mr Ayinotu gave him the draft without any mention of the subject. He himself was at no time told by the subject that such donation was expected nor did he have cause to brief the subject on it. He said that the money and other donations received at the material time helped the party at the State level to pay outstanding allowances due to polling agents. A report of the donation was made to the Executive of the Anambra State branch of the party. He deposed that the subject was not a member of the State Executive and that every state branch was independent in financial matters.
Mr Ayinotu is the Managing Director of the Herma Construction Limited. The company won a contract from the Federal government for the construction of the Abakaliki-Afikpo- Ohafia road starting from Anambra State. The Federal Tenders Board comprised Mr Victor Masi, Alhaji Umaru Dikko, Professor Esang, Mr E.C. Osamor, Alhaji Adamu Ciroma and Mrs E. Oyagbola. Mr Ayinotu said he spoke to the first four and promised them donations if his company won the contract. When he eventually got the contract, he said he donated through the following persons in cash to the party: Umaru Dikko, N450,000; Professor Esang, N250,000; Mr E.C. Osamor, N225,000 and Mr Victor Masi, N175,000. There is no evidence that these various monies reached the party although even if they did, that would hardly justify the circumstances in which the monies
But there is the further evidence from Mr Ayinotu about N200,000 in bank draft. About a year after the said road construction contract was won, he went to the subject and said he wanted to make a donation to the party. Nothing was said to the subject about the amount of donation nor was any reference made to the with any contract won previously. According to his evidence, the subject told him he had nothing whatever to do donations and that if it was his intention to donate money to the party he could go to the Secretariat or the Chairman. At this stage it ought to be mentioned that from the entire circumstances the subject did not feel committed in any way as to whether the donation of N200,000 would come or not. He did not solicit for any donation. He was quite at liberty, in our view, to welcome a donation offered in a situation in which Mr Ayinotu probably thought of making his donation best recognised. But the subject played down the occasion. He said in effect "Don't come to me about donation to the party. If you may, go to the proper quarters." This cannot from any point of view amount to counselling to corruptly enrich the NPN. Mr Ayinotu on his own chose to go to the chairman of the Anambra State branch of the party and made a donation of N200,000.00.
We cannot see what the subject did wrong in this regard. We hold that no prima facie case has been made out to warrant the trial of the subject for any offence known to law. If the subject were to be put on trial on these facts, it would, in our view, be setting a standard of normality too high even for saints in politics in a democracy to observe. For we note from the evidence shown to us by learned counsel for the subject that political parties in Western democracy thrive on genuine and voluntary donations from all and sundry including companies. We think that on the facts before us and in the absence of any other allegations the Company continued detention of the subject is unjustified. Therefore we would recommend:
That the subject, Dr Alex Ekwueme, be released from detention where he has been since over two years now. That the release be given urgent consideration. That all civil and private liberties due to every free man in this country at the moment be restored to him, his family and retinue howsoever affected.
That it is of the utmost importance that the debt owing by Romania be paid. The earlier intervention by Mr Klaus Seemuth to get a purchaser for the Romania machinery ought to be resuscitated and encouraged so that this country may reap the benefit of the foreign exchange advantage of such arrangement without delay.
(Justice S.O. Uwaifo) Chairman (Mr E.O. Ugowe CP) Member (Mr A. Jika CP) Member (Sqn Ldr I. Dada) Member
All signed
