The Court of Appeal, Abuja Division, on Friday ordered the reduction of the jail term issued against a former Plateau State governor, Joshua Dariye, after deciding that the term did not comply with the provision of the Administration of Criminal Justice Act, (ACJA).
Mr Dariye is accused of diverting N1.62 billion ecological funds while he served as governor of his state.
He approached the appeal court, after a High Court of the Federal Capital Territory, presided by Justice Adebukola Banjoko, sentenced him to various terms with the longest period of 14 years, all expected to run concurrently.
In the appeal, Mr Dariye asked the court to determine 14 main issues.
The former governor argued that a copy of his statement, cited to by the prosecution as evidence, was given under duress and should not have been regarded by the court.
Mr Dariye also submitted that the judgement of the court was inconsistent because Mrs Banjoko had among other things, found him guilty of count 23, but failed to convict him, while the same court convicted the former governor for count 12, despite the fact that he was not found guilty of the said count.
Mr Dariye also argued that the lower court was wrong in describing him as a ‘public servant’ and questioned what he described as the failure of the court to differentiate between the elements contained in an allegation of criminal breach of trust, with that of an alleged misappropriation of funds which rendered its judgement defective.
The former governor also contended that the prosecution failed to prove the allegations against him at the lower court, and consequently faulted the decision of the court in many of the counts, where the convicted governor was found guilty.
In a ruling delivered by a judge, Stephen Ada, the appeal court said Mr Dariye’s complaint about the admissibility of his statement was null and void, since the complaint was not made at the start of his trial, from the records of the lower court.
“The law is trite that when an accused fails to contest the voluntariness of a statement, it cannot raise the objection at a later stage,” Mr Ada ruled.
The court also assessed the complaints made by the former governor against the decision of the lower court on counts 23 which bordered on the allegation that Mr Dariye withdrew part of the diverted funds, worth N250 million in July 2001 to purchase a London-based asset in September of that year.
According to the appeal court, the prosecution failed to prove that the money removed from the Plateau State treasury in July, 2001 was the same money used for the purchase of the London asset.
“The fact that the money was taken in July, is not sufficient to prove that the money was the same as that used to purchase the house in September,” Mr Ada said.
The judge added that the lower court “failed woefully” in reaching its conclusion about the allegation of diversion, as contained in count 23. The court also overruled the conviction of Mr Dariye on count 12 of the charge against him.
The appeal court ruled that although the decision of the prosecution to multiply the charges against the defendant is not allowed in law, the allegations against Mr Dariye were ”clearly brought and it’s particulars accurately placed before the lower court”.
“It is my view that under sections 194, 195, 196 and 197 of the ACJA, the allegations were properly laid before the court and they have sufficient particulars,” he said.
The court dismissed the submission of Mr Dariye that he was not a public servant, saying the question of who he was did not arise.
According to the judge, section 318 (1) of the Constitution clearly explains the public nature of Mr Dariye’s office and ”he cannot begin to assume himself as different from that person”.
The court, however, added that despite the critical reasoning of the lower court to convict Mr Dariye, the former governor should not have been given a maximum ”of the entire period included in the charge against him”, since the record before the lower court has shown that Mr Dariye was a first-time offender.
“The appellant is a first offender and should not have been sentenced to maximum punishment for the offence, for which was charged. The appellant was sentenced to maximum terms as contained in the laws. The sentences are therefore excessive and cannot be sustained,” the judge said.
The court upheld the judgement of the court in counts 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 17, 21, 22 bordering on criminal breach of trust, but ruled that the jail terms for the court judgements will be reduced to 10 years.
The court also reduced the jail term for the other counts, dealing with misappropriation to one year and added that the jail terms were to run concurrently.