Loose ends in Timipre Sylva’s reprieve

ONE major platform that pivoted President Muhammadu Buhari's campaign for the office he presently
occupies was an elaborate promise of transparency in government.  Many relied on his pedigree of honesty in rooting for his candidacy, right from his party the All Progressive Alliance (APC)'s primary election to the two-horse race with former President Jonathan. Not many treasure troves will dislodge a political capital harvested from popular trust along multi-dimensional fronts. Hence, with stout clarion for change coming with stoic promise to do things differently, and again with a certificate censured by antecedent agreeing to this slogan, his rival stood less than an arithmetic chance for victory. 
  Interestingly, the president's promise to do things differently, if elected by Nigerians, was not inoculated from any aspect of our national life. For this it ignited popular following across broad spectrum of Nigeria as a zeitgeist.  Indeed, the president's campaign train later notched this promise to a level of an anti-corruption crusade. Nigerians who saw corruption as bane of our national development rallied round this movement, and ultimately voted massively for  the president.
  Hence, upon taking his oath of office at the presidential inauguration ceremony last week, there was widespread joy and hope on the president's preparedness to deliver on his promise from Nigerians of all walks of life. A new wind of life was expected to breeze across Nigeria's socio-political horizon in all its ramification; from private to public sector.  But giving what many have come to know as consistency in reneging on campaign promises by successive leaders, once they found themselves in power, not a few Nigerians nevertheless called for caution and would rather watch events as they unfold in the new government's life through its policies and programmes.  Yet, not long into the new administration – indeed just three days after its inauguration  –  it seems Nigeria is tip-toeing back to its hazy past. An issue poised to foist this trend on the country is recent termination of criminal proceedings against erstwhile governor of Bayelsa state and prominent member of the ruling APC, Chief Timipre Sylva before an Abuja Federal High court presided over by Justice Evoh Chukwu.
   investigations on this issue show that it is fraught with several freckles, and that some of them froth against widespread expectations invested by Nigerians on our new federal government. It will be recalled that this former governor was standing  trial over a six-count charge bordering on corruption and allied offences for his actions in office which allegedly ripped off a whooping N6.5billion from his state's treasury, between October 2009 and February 2010. It is also noteworthy that despite set-backs in this proceedings that have seemingly delayed his trial thus far, Chief Sylva's claims of innocence have continuously met with startling evidence from Economic and Financial Crime Commission (EFCC) at all times. Hence, throughout its lifetime the case against Chief Sylva remained strong like Ceasar's northern star despite all subtle, covert and overt attempts to truncate the charge latching on legal technicalities which failed to hand him any reprieve.
  A primary factor that seeks to dent such dismissal order of the case against Sylva seems to be that up till Monday, June 1, 2015 the day the said case was terminated, prosecuting anti-graft agency has never displayed any lethargy nor shown any difficulty with its prosecution of the matter. Indeed, it was learnt that EFCC had its witnesses ready in court to give evidence as well as tender documents that are material to its case.   It therefore throws an unsettling, foggy cloud of curiosity on all probable factors that could have motivated dismissal of EFCC's  case against Sylva.
  According to a legal practitioner who craves for anonymity, “dismissal of the charge against Timipre Sylva is not a welcome development. This is because apart from the powers of Attorney-General of the federation to discontinue a legal proceeding on behalf of the Federal Republic of Nigeria, the only other reason is where the prosecution deems its case as patently weak or improbable to prove.”
  He further told  that none of the conditions is obtainable now as to transparently support the court's order.  In his estimation, absence of an    incumbent Attorney-General of the Federation and Minister of Justice at the moment to exercise this power, even if it was necessary, tears off every façade of legality around Sylva's 'acquittal' in all respects. This point is also shared by another Awka-based lawyer who does not want his name in print.
  Another factor that excoriates an 'acquittal' for Sylva,  comes with manner the order was made. It was found out that even if due legal process was followed, there are some loose ends that refuse to connect themselves. For instance, while counsel to government Chief O.J. Nnadi (SAN) told court that he got the instruction to withdraw the charge from an Assistant Director of Legal Prosecutions with EFCC , Mr. J.A. Ajogbane, and further informed court that the “Fiat” which he intended to tender for terminating the case was issued to him by the Director of Public Prosecution (DPP) one Mr. M.S. Diri on behalf of the Attorney-General of the Federation, counsel for EFCC Mr. Ojogbane denied ever directing Chief Nnadi to discontinue this case.
  Counsel to EFCC continued a rankling drama in that incident when he further told court that his own director had earlier instructed him to appear in court with DPP who would withdraw the charge. Now, this again has exposed the termination to another welter of untidiness which an excuse of expediency cannot give a credible gloss. For these two lawyers who spoke with National Light, singing discordant tunes in a weighty issue of nolle prosequi ought to put court on alert. And ultimately shelve its termination order at least on the interim. Their position seems to bolster another ancillary fact that is even fundamental to legal procedures for withdrawal of a criminal charge. According to section 73 of the Criminal Procedure Act, only Attorneys-General of the federation or states as the case may be (or an officer of his department), depending on whose law an accused person is facing trial. This provision draws its influence or indeed existence from section 174 (a) – (c) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
  Subsection 2 of section 174 above expressly states that these powers conferred on Attorney-General of the Federation can only be exercised by him or through an officer of his department, that is to say, director of public prosecution. And in each case public interest, interest of justice and need to prevent abuse of legal process. This is further contained in subsection 3. Similarly, these provisions are re-enacted in section 211, subsections 1-3 to operate where laws or law of which an accused has allegedly violated, and for which he or she is standing trial happens to be that of a state.   
  From these foregoing provisions of law, the person to exercise this power is specified without ambiguity of any species. Where there is no Attorney-General in office the exception in subsection 2 of section 174 provides that it is an officer of DPP and no one else. National Light learnt that where a law expressly mentions someone or something as a legal condition precedent, such provisions are stricto sensu followed. Hence, anything done outside the purview of this authority renders such act an illegality. This principle of law even enjoys the blessing of a canon of statutory interpretation expressed under the legal maxim of expression unis et exclussio alterus  which translates to as an express mention of one thing in law automatically excludes all others not mentioned. Hence, where the law states that only the Attorney-General or an officer of DPP as his representative may discontinue or tender a fiat for discontinuance, it does not in the same token extend to another counsel on either side of the case, not to talk of counsel with watching brief of government.  Here then is what the lawyers interviewed by National Light seem to call desperation or loose ends in the Sylva saga.
  Their position also grows more feather by the fact that  even the “Fiat” which is reportedly dated June 1, 2015 is not signed. And this threads yet another angle to a seeming illegality in terminating criminal proceedings against Timipre Sylva. For it is trite law that an unsigned document is ab initio defective and lacks every legal bastion. What this means, lawyers say, is that the purported fiat upon which the court premised its order is invalid and cannot enjoy legal recognition.
  This, no doubt, ranks on same levers with the gale of denials from EFCC official to have directed Chief Nnadi to discontinue the case. Not a few describe this procedure as shoddy and falling below expectations invested in the new government. Not a few therefore would want to know who “instructed” Nnadi and on which authority the fiat for such instruction emanated. Efforts to speak with Chief Nnadi on this issue did not yield fruits as he said he would not be available until Friday.
  Equally, not a few observers criticize  withdrawal of criminal proceedings against Sylva latching onto legal loopholes or straws, even if there is anyone in his favour, at this embryonic age of the current government.   To them, with a government that literally rode to power on the crestwave of its anti-corruption signpost, doing so reeks of a slush past Nigerians thought has been consigned to an acrid waste bin of history. According to a veteran politician who craved anonymity, it is curious that the ink with which President Buhari's  inaugural speech was written has not dried before an accused standing trial for allegedly siphoning funds from his state's treasury while in power was let off the hook. He maintains that the excuse to the effect that only one case was withdrawn to let government focus on another similar case is not satisfactory. A cross-section of lawyers agree with him on this count. For these lawyers, allowing the principle of consolidation to apply would have been more preferable for purposes of transparency. They also wonder if termination of Sylva's case bow satisfies a crucial requirement or essential in s.174 (4) C.F.R.N 1999 as amended, that is public interest and interest of justice – giving corrupt tendencies and their tell-tale marks on Nigeria.
 it was further gathers that releasing Chief Sylva's travel documents, particularly his international passport, upon an application by his counsel Mr. Israel Olorundare (SAN) is an express way so sweeping for any other charges claimed to be still pending against him. Another lawyer said that the fear of elopement beyond the arms of justice is not misplaced where the former governor considers evidence against him so germane.  It will therefore, according to her, tantamount to sub judice in such legal proceedings if Chief Sylva decides to abscond from the shores of Nigeria.
   Indeed, this would not have attracted an outcry of this proportion from onlookers in another regime, especially one whose resume of anti-corruption stance is runny or indeed doubtful. But the present federal government is not another regime. It is one under the leadership of a bastion of transparency whose antecedents on this score gave the reins of power. Hence, Nigerians expect that Timipre Sylva's case should be revisited by President Muhammadu Buhari as lifebuoy for the fight against corruption since, as lawyers said, termination of legal proceedings under nolle prosequi principles does not debar further charges or legal process upon same facts as previous case.it was check shows that their position is hinged upon provisions of sections 73 (3), 74 (4) Criminal Procedure Act and section 253 (3) Criminal Procedure Code.