The Court of Appeal in Abuja, on Thursday, narrowly affirmed the conviction of a former federal lawmaker, Farouk Lawan, for receiving $500,000 bribe during a legislative probe into the fuel subsidy regime in 2012.
This was after a three-member bench led by the court’s president, Monica Dongban-Mensem, unanimously overturned the former lawmaker’s conviction for two of the three offences he was earlier jailed for by the lower trial court in June last year.
Mr Lawan, who appealed against his conviction and sentencing by the lower High Court of the Federal Capital Territory (FCT), Abuja, also got a reduction of his jail term from seven to five years.
This arose from his acquittal in respect of two counts which, each attracted seven years jail term at the trial court. The Court of Appeal’s overall decision left Mr Lawan with a conviction for the third offence with five years’ imprisonment as punishment.
Why Appeal Court gave Lawan an acquittal
Dismissing the first two counts, the three-member bench ruled that the prosecution failed to prove that Mr Lawan demanded and agreed to accept $3 million bribe from billionaire oil mogul, Femi Otedola, to exonerate the businessman’s company from the list of firms indicted for fuel subsidy fraud in 2012.
The decision capitalised on a major investigative flaw in the case, with the court holding that the prosecution failed to establish whether it was Mr Otedola who offered the bribe or it was Mr Lawan who asked for it.
David Igbodo, the police investigative officer, who testified as the second prosecution witness (PW2), “was evasive” at the trial court on the issue of the telephone conversations the two men had on the bribery, Mrs Dongban-Mensem said in her lead judgement on Thursday.
She said the prosecution could have obtained the call logs of both men to determine who initiated the bribery conversation, but they failed to so do.
“The respondent did not find it necessary to contact the service providers to establish that the appellant demanded $3million from PW5 (Mr Otedola),” she said.
She added that Mr Otedola’s claim that Mr Lawan asked for the bribe was not corroborated by any evidence.
“There is no scintilla of evidence from PW2 (Mr Igbodo) establishing or proving that the appellant (Mr Lawan) corruptly asked for $3 million from PW5 (Mr Otedola). There is also no evidence that the appellant agreed to accept $3million from PW5 to remove Zenon Oil and Gas Limited and AP Petroleum from the list of indicted firms,” the judge held.
Dismissing the two charges, she held: “There is a very big lacuna in Counts 1 and 2”.
“There is no compelling evidence against the appellant in Counts 1 and 2,” she added.
But the panel affirmed the decision of the lower court that Mr Lawan, indeed, accepted $500,000 bribe from Mr Otedola, an offence that attracted five years’ imprisonment at the lower court.
Mrs Dongban-Mensem held that Mr Lawan’s claim that he collected the $500,000 as evidence of bribery against Mr Otedola did not hold water.
The judge pointed out from the trial court’s records that Mr Lawan admitted that he did not report the money he received from Mr Otedola to any law enforcement agency.
“It is curious that he accepted the $500,000 as evidence of bribe but failed to report it to any law enforcement agency,” she held.
She also referred to the testimony one of Mr Lawan’s contemporaries at the House of Representatives, Adams Jagaba, who testified as the fourth prosecution witness (PW4), to detriment of the convict’s line of defence.
Mr Jagaba said it was untrue that Mr Lawan submitted the money to him as an exhibit with a cover letter.
“No such money or memo was given to PW4,” the court held.
Affirming Mr Lawan’s conviction and sentence of five years’ imprisonment on the charge of taking $500,000 bribe from Mr Otedola, the court held that the prosecution proved it “beyond reasonable doubt”.
The Court of Appeal affirmed both the conviction and the sentence passed by the lower court on the offence. But it discharged and acquitted him regarding the two other counts of demanding and agreeing to accept $3 million from Mr Otedola to clear his company.
Mr Lawan, a veteran member of the House of Representatives, headed the ad hoc committee of the House that probed the multi-billion-naira fraud in the subsidy scheme during then President Goodluck Jonathan administration in 2012.
As of then, Mr Lawan had earned the moniker, Mr Integrity, in tributes to his strong anti-corruption bent as a lawmaker.
In the report issued at the end of its enquiry, the Lawan-led committee indicted Mr Otedola’s Zenon Oil and Gas Ltd and many other firms.
Specifically, the committee accused Zenon Oil of fraudulently obtaining over $230 million foreign exchange from the Central Bank of Nigeria (CBN) to import petrol under the subsidy scheme, but failed to use it for the purpose.
But Mr Lawan later removed Zenon Oil’s name from the list of indicted firms after receiving $500,000 from Mr Otedola as the first tranche of the “agreed” $3 million bribe, the judge was told.
Both men later claimed that they gave or received the money as evidence of bribe against each other.
But Mr Otedola said he reported to the State Security Service (SSS) the alleged move by Mr Lawan to extort him through threats to indict his firms without justification.
Mr Lawan, on his part, insisted that he collected the money as evidence against Mr Otedola, but admitted he did not report to any law enforcement agency.
The office of the Attorney-General of the Federation, though a private prosecutor, Adegboyega Awomolo, a Senior Advocate of Nigeria, had charged Mr Lawan with the first two counts under section 18(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000, and the third count under section 17(1)(a) of the same law.
High Court conviction
In her judgement delivered on June 22, 2021, the trial judge, Angela Otaluka, of the FCT High Court, convicted Mr Lawan on all three charges filed by the government.
The court convicted him for demanding $3 million gratification, agreeing to receive the $3 million bribe, and eventually taking $500,000 bribe from Mr Otedola to exonerate the businessman’s company from the list of firms indicted for the fuel subsidy fraud.
The judge sentenced Mr Lawan to seven years imprisonment on each of the first two counts and to five years in the third count.
She ruled that the sentences should run concurrently, implying that the convict was to spend seven years in jail.
But Mr Lawan, dissatisfied with the decision, filed an appeal against it.
The federal lawmaker dropped a prominent Senior Advocate of Nigeria (SAN), Mike Ozekhome, who defended him at trial, and engaged a former President of the Nigerian Bar Association, Joseph Daudu, also a SAN, to prosecute his appeal.
Mr Daudu raised six issues with the lower court’s judgement on behalf of his client.
The federal government, through a lawyer from the federal ministry of justice, Aminu Alilu, opposed the appeal, and picked holes in all the appellants’ arguments.
In its judgement on Thursday, the Court of Appeal resolved only one of the six issues in Mr Lawan’s favour. But the points made by the appellant’s lawyer on the only one issue were enough to secure an acquittal for the former lawmaker on the two charges of demanding and agreeing to accept $3 million bribe.
The court dismissed all his other arguments, which would have led to the dismissal of the entire charges if they were upheld.
For instance, Mr Daudu argued that the lawmaker was wrongly charged under the repealed Corrupt Practices and Other Related Offences Act, 2000, instead of the valid version of the law enacted in 2003.
But on this point, the Court of Appeal cited a Supreme Court’s decision which nullified the 2003 version of the law, and held that the 2000 version was the active law.
“A mere publication of a law does not confer validity,” the court ruled.
Mrs Dongban-Mensem added that even if Mr Lawan was charged under the wrong law, the charge would not have been dismissed as much as he was found to have committed an offence created by a valid law.
The lawyer also contended that as a lawmaker, covered by the Legislative Houses (Powers and Privileges) Act, Mr Lawan ought to be charged under section 20 of the law instead of the Corrupt Practices and Other Related Offences Act.
Dismissing this argument, the court upheld the government’s argument that, the Legislative Houses (Powers and Privileges) Act, is never a shield for criminal activities of lawmakers. It added that there is no law that exempts a lawmaker from being charged under other laws.
He also raised the issue that his client was not a public officer in the contemplation of the law under which he was charged.
The court also dismissed this argument by upholding the respondent’s argument that Mr Lawan was a public officer since he was receiving salaries from the government as a member of the House of Representatives.
The lawyer also cited the inconsistencies in the evidence of Mr Otedola who testified as PW5 and Boniface Emenalo, a National Assembly official, who testified as the second prosecution witness (PW1), as to how much he received from them.
But the court ruled that how much he received from the two men was immaterial as much as it summed up to the $500,000 he admitted to have received from them.