About 36 years ago, the Federal Military Government (FMG) promulgated the Exchange Control (Anti-Sabotage) Decree No 57 of 1977, which criminalised sharp practices in the currency and foreign exchange markets. A number of Nigerians and foreigners were arrested, tried and convicted for the offence. FRANCIS FAMOROTI, Head Judiciary writes.
Sometimes during the tenure of Gen. Olusegun Obasanjo as the country's Head of State in 1977, the open foreign exchange transaction was deemed to be an illegal business in Nigeria.
Part of the provisions of the Exchange Control (Anti-Sabotage) Decree was that no individual or group of people was allowed to deal in foreign exchange without permission from the appropriate authority, who was the then Commissioner for Finance.
Against this backdrop, the government promulgated the decree to curb the sharp practices. By so doing, the Obasanjo regime believed the measures would exert control on the foreign exchange market by putting pressure or eliminating the parallel market.
Prior to the promulgation of Decree 57 of 1977, a group of suspected offenders had been arrested and accused of violating the foreign exchange regulations otherwise known at the time as "Arrangee".
The men were thus tried under the retroactive decree, which prescribed a minimum of five-year jail term to offenders without an option of fine on conviction.
Among those tried and convicted were; a Nigerian medical doctor, Dr. John Sodipo, a British-Canadian, Nigel Turner, and an Italian, Umberto Carnazzi.
They were in the group of the first batch of 17 persons tried before the Special Tribunal set up by the FMG under the decree.
Essentially, the men were charged with conspiracy to buy and sell N200, 000 naira for $230,000 dollars and were also accused of gross violation of the foreign exchange regulations. They pleaded ''not guilty'' and were subsequently tried before the three-man tribunal headed by a former Chief Judge of Ondo State, Justice Olakunle Orojo.
At the trial, the prosecutor, Mr. Michael Ayoade, from the Federal Ministry of Justice, argued that the prosecution had established beyond doubts that the accused men flouted the foreign exchange regulations of the country.
According to him, ''we have proved that the men agreed to transact illegal foreign exchange. We have established the case of conspiracy in their agreement. We have also succeeded in establishing the overt act of the agreement; and it is sufficient; my Lord, for the prosecution case was that the offence was committed in Nigeria.''
The prosecutor referred to the statements made by Turner and Carnazzi and how the terms of the agreement to exchange one American dollar for 85 kobo were spelt out. Turner was to deposit $230,000 dollars into Carnazzi's account with the Bank of America in San Francisco, United States, if the latter could give him N200, 000 in Nigeria.
He said the men had in fact effected the agreement because Carnazzi had issued two cheques of Standard Bank, Iganmu branch, Lagos for N200,000 payable to Turner via his New Nigeria Bank account on Broad Street, Lagos.
Ayoade prayed the tribunal to adjudge the accused men guilty and sentence them accordingly.
The prosecutor further submitted that the contravention of the decree by both accused men was a conspiracy beyond the territorial limits of Nigeria.
Legal luminary, Chief Rotimi Williams (SAN), who was the lead defence attorney, urged the tribunal to hold that Turner and Carnazzi had not commenced any criminal offence by entering into an agreement for business.
According to him, if parties to a commercial contract cannot reach an agreement before approaching the Commissioner of Finance for permit to transact foreign exchange, then the commercial activities of the nation would be crippled.
The defence lawyer said the agreement to buy and sell foreign currency could not be regarded as criminal conspiracy.
Williams argued that before such conclusion could be drawn, the agreement so entered into must be proved to be a pre-mediated desire to commit an offence under section (1) (1) D of the Exchange Control Decree No 57 of 1977.
This, he said, the prosecution had failed to prove adding that the prosecution also failed to prove that Turner contracted the agreement with a criminal intent.
Besides, the lead defence attorney said the transaction was legally valid up till August 31, 1977.
A co-accused, Sodipo, on his part sought more time to enable him put his defence together. He told the tribunal through his lawyer, Mr. Kehinde Sofola (SAN), that some of the vital documents required for his defence were abroad.
Sofola also said the security men had impounded some files from his client, when he was arrested adding some of the documents he needed to establish his innocence were with the police.
The defence lawyer said Sodipo was charged with a nine-count offence and access to the vital documents would enable them prove that Sodipo acted properly and had not stolen anybody's money.
But Justice Orojo quickly replied that ''nobody has said he had stolen money.''
Mid-way into the case, the defence lawyers had threatened to withdraw from the case and protested against some aspects of the decree which they said were obnoxious and a violation of the rule of law.
Williams who led a team of other lawyers had expressed their intention to seek an audience with Obasanjo on the matter but the then head of state on September 16, 1977 declined to grant their request until the conclusion of the on-going trials.
Three days later, the defence lawyers returned to the tribunal and defended their clients.
At the close of the addresses, the tribunal chairman deferred the verdict till about two months later. When the judgement was eventually read, Justice Orojo, found the men guilty of conspiracy and illegal dealing in foreign exchange transactions.
Williams however made an allocutus on behalf of the defence, urging the tribunal to take into consideration the fact that no money had been transferred out of the country.
In his pronouncement, the tribunal chairman sentenced each of Turner and Carnazzi to five years jail terms for violating the foreign exchange regulation.
Besides, the tribunal ordered both men to forfeit $230,000 dollars to the FG being the amount of the deal in which the foreign exchange was to be bought and sold between the parties. Sodipo also was equally convicted.
The FMG later confirmed the conviction of the men. However, some years later, the government granted Sodipo pardon.
National Mirror