This was even as Justices of the Abuja Division of the Court of Appeal, yesterday, disagreed on whether or not the charge which was preferred against Saraki by the Federal Ministry of Justice, ought to be quashed.
Whereas two of the appellate court Justices that heard Saraki’s appeal, Justices Moore Adumein and M. Mustapha, were of the view that the criminal case was properly instituted, a third member of the panel, Justice Joseph Ekanem , in his dissenting verdict yesterday, not only declared the charge before the CCT as incompetent and legally defective, he went ahead and discharged the accused person.
Meantime, before he dismissed Saraki’s appeal, Justice Adumein
apologized over their failure to deliver the judgement on two previous occasions that it was slated- October 19 and 21, saying “we had to labour to reach a consensus”.
He said: “This is not unusual in a case of this nature that was heard by learned jurists. It has been so for many centuries where learned Justices had to disagree among themselves”.
Though Justice Adumein, in his lead judgement yesterday, faulted the legality of the summon that was served on Saraki from the CCT, he said the fact that the accused has already submitted himself before the tribunal made the issue of “improper service a mere irregularity that does not vitiate the validity of the charge”.
According to him, “The appellant was charged and arraigned in his personal capacity and not in his capacity as the Senate President. Having been so
charged, the summon issued by the tribunal ought to have been served personally on the appellant.
“Failure to effect service is a fundamental issue which divests the court of its jurisdiction to hear the case. Where however a defendant or his counsel appears in court and fails to raise the issue of non-service or improper service. He will be stopped from raising the issue again.
“Under section 101 of the Criminal Procedure Act, where an accused or defendant appears before a court whether voluntarily or otherwise, the trial can be held despite the irregularity.
“In the present case, the appellant has since appeared before the tribunal without raising the issue of improved service. I therefore resolve the issue against the appellant”.
On whether the Justice Danladi Umar-led tribunal was properly constituted to try the offences against Saraki, Justice Adumein, placed reliance on paragraph 15(1) of the Fifth Schedule to the 1999 Constitution and section 20(2) of the Code of Conduct Bureau and Tribunal Act, 2004, and held that the two-man panel of Justices at the tribunal formed a quorum to entertain the charge.
“The above provisions are very clear and unambiguous and should be given their ordinary meaning. This is in line with the golden rule of interpretation. Words should be prima-facie given their natural and grammatical meaning.
“There is no provision on minimum number of members which the tribunal must have before it can sit to hear cases. Therefore this is a lacuna”.
He said that section 318(4) of the constitution specifically made the Interpretation Act the only legislative tool to fill the lacuna, adding that section 28 of the Interpretation Act provides for quorum which shall not be less than two members including the chairman, provided the chairman and member will be present throughout the trial.
“Without any legal impediment, the provision of the Interpretation Act is applicable to the CCB and Tribunal Act. It is therefore my view that the tribunal was a proper panel constituted by the law. The issue is resolved against the appellant”.
More so, Justice Adumein dismissed Saraki’s contention that the tribunal is not a court with criminal jurisdiction.
Relying on the decided case law in AGF&2 Ors vs Atiku Abubakar, 2007, 8-NWLR, he held that “there is no inherent difference between a tribunal and a court”.
He said: “The tribunal is a special court established to adjudicate on cases relating to breaches by public officers. It has power to impose appropriate sentence where it finds a public officer guilty”.
He stressed that the use of words like ‘plea’, ‘guilty’, ‘witnesses’, and ‘trial’ in the statute that established the tribunal, showed that it has the power to conduct criminal proceedings.
Besides, he held that contrary to Saraki’s claim, Justice Ahmed Mohammed of the Federal High Court in Abuja never summoned or ordered the Chairman of the CCT and CCB to appear before him.
He said that Saraki misled the tribunal into believing that the high court made an order against it.
Consequently, Justice Adumein said he would not dissipate his energy towards determining whether the tribunal has coordinate jurisdiction with the Federal High Court or not, as he was prayed to do by Saraki.
“This court will not engage its precious time in entertaining academic and hypothetical issues”.
On the competence of the charge, he held that in the absence of a substantive Attorney General of the Federation, the Solicitor General of the Federation, SGF, or any other legal officer in the Ministry of Justice, has the power to institute a criminal action.
He said that a Deputy Director in the office of the AGF, Mr. M.S. Hassan, who signed the charge against Saraki, had the power to institute the action, saying he had from the bar, told the court that he was authorised by the SGF to initiate the criminal proceeding.
“Having resolved all the issues against the appellant, this appeal is hereby dismissed and I hereby uphold the decision of the tribunal.
“But that is not the end of the matter, I will now give my learned brother the chance to also deliver his own judgement”, Justice Adumein added.
At that juncture, Justice Ekanem, took over and delivered a dissenting verdict wherein he quashed the 13-count charge and discharged Saraki.
According to him, “ In my view, the CCT is not a court strictly speaking or conferred with criminal jurisdiction. It is in my view not a superior court of record nor was it in the constitution, listed as one of the superior courts in Nigeria.
“See section 6 of the constitution. It was not established as a court by the National Assembly. There is however no doubt that the CCT has power to try criminal cases, see section 23 of the CCB & Tribunal Act. It has powers to take plea , it however has limited jurisdiction to try public officers for breach of conduct”.
Relying on plethora of decided case laws, Justice Ekanem, stressed that criminal proceeding could only be ignited before the CCT by the AGF or any other officer designated by him.
He noted that the Deputy Director in the office of the AGF, Mr. Hassan, in the letter he forwarded to the tribunal on September 11, wrote, “I apply for leave to prefer criminal charge pursuant to section 24 of the CCB &Tribunal Act, 2004”.
Justice Ekanem stressed that though the constitution permits the SGF to commence criminal action in the absence of the AGF, he said that Hassan failed to produce any document showing that he was properly authorised by th e SGF.
“The opening paragraph of the letter Hassan sent to the CCT on September 11, wherein he applied to commence trial against the appellant is very instructive.
“He merely said ‘ I am authorised to file this action’ but did not say that he was authorised by the Solicitor-General. He went short of identifying who authorised him”.
He maintained that under section 24 of the CCB and Tribunal Act, 2004, which Hassan relied upon, criminal proceeding must be initiated in the name of the Federal Republic of Nigeria by the AGF or such officer in the Federal Ministry of Justice as authorised by the SGF.
He held that though Hassan was eminently qualified to initiate criminal action, he could only do so with an authorisation from the SGF considering that the office of the AGF is currently vacant.
Justice Ekanem said that Hassan, aside his oral claim, failed to adduce any evidence showing that he was properly authorised to initiate the criminal proceeding against Saraki.
“It is therefore my view that the charge before the tribunal is incompetent. It is for this view that I hold that this appeal has succeeded and I hereby set-aside the charge and discharge the accused person”, Justice Ekanem held.
Nevertheless, he noted that the tribunal has the power to issue bench warrant “under appropriate circumstances”.
In his own verdict, the third member of the panel, Justice Mustapha, without giving any reason, merely said “I agree with the lead judgment just delivered by my learned brother”.
Before the panel rose yesterday, Justice Adumein stressed that Justice Mustapha having concurred with his own judgment, Saraki’s appeal failed and remained dismissed.
Meanwhile, Saraki, through his lawyer, Mr. Mahmud Magaji, SAN, while thanking the appeal court panel for their industry yesterday, hinted that he would take the matter before the Supreme Court “so as to further enrich the legal jurisprudence in Nigeria”.
Basically, Saraki had in the appeal he filed on October 2, sought an order quashing the charge against him on the ground that the CCT, aside not being properly constituted, also lacked the jurisdiction to conduct criminal trial like a proper court.
He urged the appellate court to determine whether there was proper service in law for him to appear before the CCT, as well as whether the tribunal is a court of criminal jurisdiction that is empowered to issue a bench warrant.
More so, he prayed the court to determine whether the charge that was entered against him by someone other than the AGF is valid.
Saraki approached the appeal court after the tribunal, in a ruling it delivered on September 18, dismissed the preliminary objection he raised against his trial, and ordered the Inspector General of Police to arrest and produce him before it for trial.
He eventually surrendered himself to the tribunal on September 22, the day he was docked and he pleaded not guilty to the 13-count charge against him.
Saraki was in the charge before the CCT, marked ABT/01/15 and dated September 11, 2015, alleged to have falsely declared his assets, contrary to the constitutionally requirement.
He was accused of deliberately manipulating the assets declaration form that he filed prior to his assumption of office as the Senate President, by making anticipatory declaration of assets, as well as, operated foreign bank account while in office as a public servant.
The offence was said to have been committed while Saraki held sway as a governor.
He was also accused of breaching section 2 of the CCB and Tribunal Act, an offence punishable under section 23(2) of the Act and paragraph 9 of the said Fifth Schedule of the 1999 Constitution, as amended.
FG, among other offences, alleged that Saraki, claimed that he owned and acquired No 15A and 15B Mc Donald, Ikoyi, Lagos, through his company, Carlisle Properties Limited in 2000, when the said property was actually sold by the Implementation Committee of the Federal Government landed properties in 2006 to his companies, Tiny Tee Limited and Vitti Oil Limited for the aggregate sum of N396, 150, 000, 00.
He was alleged to have made false declaration on or about June 3, 2011, by refusing to declare plot 2A Glover Road, Ikoyi, Lagos, which he acquired between 2007 and 2008 through his company from the Central Bank of Nigeria for a total sum of N325, 000, 000, 00.
Similarly, Saraki was said to have refused to declare No1 Tagnus street, Maitama, Abuja, which he claimed to have acquired in November 1996 from one David Baba Akawu.
Some of his alleged offence while in office as governor, which are said to be punishable under section 15(1) and (2) of the CCB and Tribunal Act, Cap C15, Laws of the Federation of Nigeria, 2004, were allegedly committed between October 2006 and May 2007.
His actions were classified as a gross violation of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria 1999, as amended.
More so, Justice Adumein dismissed Saraki’s contention that the tribunal is not a court with criminal jurisdiction.
Relying on the decided case law in AGF&2 Ors vs Atiku Abubakar, 2007, 8-NWLR, he held that “there is no inherent difference between a tribunal and a court”.
He said: “The tribunal is a special court established to adjudicate on cases relating to breaches by public officers. It has power to impose appropriate sentence where it finds a public officer guilty”.
He stressed that the use of words like ‘plea’, ‘guilty’, ‘witnesses’, and ‘trial’ in the statute that established the tribunal, showed that it has the power to conduct criminal proceedings.
Besides, he held that contrary to Saraki’s claim, Justice Ahmed Mohammed of the Federal High Court in Abuja never summoned or ordered the Chairman of the CCT and CCB to appear before him.
He said that Saraki misled the tribunal into believing that the high court made an order against it.
Consequently, Justice Adumein said he would not dissipate his energy towards determining whether the tribunal has coordinate jurisdiction with the Federal High Court or not, as he was prayed to do by Saraki.
“This court will not engage its precious time in entertaining academic and hypothetical issues”.
On the competence of the charge, he held that in the absence of a substantive Attorney General of the Federation, the Solicitor General of the Federation, SGF, or any other legal officer in the Ministry of Justice, has the power to institute a criminal action.
He said that a Deputy Director in the office of the AGF, Mr. M.S. Hassan, who signed the charge against Saraki, had the power to institute the action, saying he had from the bar, told the court that he was authorised by the SGF to initiate the criminal proceeding.
“Having resolved all the issues against the appellant, this appeal is hereby dismissed and I hereby uphold the decision of the tribunal.
“But that is not the end of the matter, I will now give my learned brother the chance to also deliver his own judgement”, Justice Adumein added.
At that juncture, Justice Ekanem, took over and delivered a dissenting verdict wherein he quashed the 13-count charge and discharged Saraki.
According to him, “ In my view, the CCT is not a court strictly speaking or conferred with criminal jurisdiction. It is in my view not a superior court of record nor was it in the constitution, listed as one of the superior courts in Nigeria.
“See section 6 of the constitution. It was not established as a court by the National Assembly. There is however no doubt that the CCT has power to try criminal cases, see section 23 of the CCB & Tribunal Act. It has powers to take plea , it however has limited jurisdiction to try public officers for breach of conduct”.
Relying on plethora of decided case laws, Justice Ekanem, stressed that criminal proceeding could only be ignited before the CCT by the AGF or any other officer designated by him.
He noted that the Deputy Director in the office of the AGF, Mr. Hassan, in the letter he forwarded to the tribunal on September 11, wrote, “I apply for leave to prefer criminal charge pursuant to section 24 of the CCB &Tribunal Act, 2004”.
Justice Ekanem stressed that though the constitution permits the SGF to commence criminal action in the absence of the AGF, he said that Hassan failed to produce any document showing that he was properly authorised by th e SGF.
“The opening paragraph of the letter Hassan sent to the CCT on September 11, wherein he applied to commence trial against the appellant is very instructive.
“He merely said ‘ I am authorised to file this action’ but did not say that he was authorised by the Solicitor-General. He went short of identifying who authorised him”.
He maintained that under section 24 of the CCB and Tribunal Act, 2004, which Hassan relied upon, criminal proceeding must be initiated in the name of the Federal Republic of Nigeria by the AGF or such officer in the Federal Ministry of Justice as authorised by the SGF.
He held that though Hassan was eminently qualified to initiate criminal action, he could only do so with an authorisation from the SGF considering that the office of the AGF is currently vacant.
Justice Ekanem said that Hassan, aside his oral claim, failed to adduce any evidence showing that he was properly authorised to initiate the criminal proceeding against Saraki.
“It is therefore my view that the charge before the tribunal is incompetent. It is for this view that I hold that this appeal has succeeded and I hereby set-aside the charge and discharge the accused person”, Justice Ekanem held.
Nevertheless, he noted that the tribunal has the power to issue bench warrant “under appropriate circumstances”.
In his own verdict, the third member of the panel, Justice Mustapha, without giving any reason, merely said “I agree with the lead judgment just delivered by my learned brother”.
Before the panel rose yesterday, Justice Adumein stressed that Justice Mustapha having concurred with his own judgment, Saraki’s appeal failed and remained dismissed.
Meanwhile, Saraki, through his lawyer, Mr. Mahmud Magaji, SAN, while thanking the appeal court panel for their industry yesterday, hinted that he would take the matter before the Supreme Court “so as to further enrich the legal jurisprudence in Nigeria”.
Basically, Saraki had in the appeal he filed on October 2, sought an order quashing the charge against him on the ground that the CCT, aside not being properly constituted, also lacked the jurisdiction to conduct criminal trial like a proper court.
He urged the appellate court to determine whether there was proper service in law for him to appear before the CCT, as well as whether the tribunal is a court of criminal jurisdiction that is empowered to issue a bench warrant.
More so, he prayed the court to determine whether the charge that was entered against him by someone other than the AGF is valid.
Saraki approached the appeal court after the tribunal, in a ruling it delivered on September 18, dismissed the preliminary objection he raised against his trial, and ordered the Inspector General of Police to arrest and produce him before it for trial.
He eventually surrendered himself to the tribunal on September 22, the day he was docked and he pleaded not guilty to the 13-count charge against him.
Saraki was in the charge before the CCT, marked ABT/01/15 and dated September 11, 2015, alleged to have falsely declared his assets, contrary to the constitutionally requirement.
He was accused of deliberately manipulating the assets declaration form that he filed prior to his assumption of office as the Senate President, by making anticipatory declaration of assets, as well as, operated foreign bank account while in office as a public servant.
The offence was said to have been committed while Saraki held sway as a governor.
He was also accused of breaching section 2 of the CCB and Tribunal Act, an offence punishable under section 23(2) of the Act and paragraph 9 of the said Fifth Schedule of the 1999 Constitution, as amended.
FG, among other offences, alleged that Saraki, claimed that he owned and acquired No 15A and 15B Mc Donald, Ikoyi, Lagos, through his company, Carlisle Properties Limited in 2000, when the said property was actually sold by the Implementation Committee of the Federal Government landed properties in 2006 to his companies, Tiny Tee Limited and Vitti Oil Limited for the aggregate sum of N396, 150, 000, 00.
He was alleged to have made false declaration on or about June 3, 2011, by refusing to declare plot 2A Glover Road, Ikoyi, Lagos, which he acquired between 2007 and 2008 through his company from the Central Bank of Nigeria for a total sum of N325, 000, 000, 00.
Similarly, Saraki was said to have refused to declare No1 Tagnus street, Maitama, Abuja, which he claimed to have acquired in November 1996 from one David Baba Akawu.
Some of his alleged offence while in office as governor, which are said to be punishable under section 15(1) and (2) of the CCB and Tribunal Act, Cap C15, Laws of the Federation of Nigeria, 2004, were allegedly committed between October 2006 and May 2007.
His actions were classified as a gross violation of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria 1999, as amended.
source vanguard
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