AHURAKA YUSUF ISAH writes on the federal government’s appeal against the acquittal of Senate President Bukola Saraki and noted that whichever way the pendulum swings, the outcome will stir up emotions
Many Nigerians appeared to have forgotten that the Senate President, Bukola Saraki was ever standing trial until the Court of Appeal in Abuja on November 14, 2017 adjourned sine dine or indefinitely to deliver its judgment on the appeal filed by the Federal Government to challenge the acquittal of the Senate President, Bukola Saraki by the Code of Conduct Tribunal (CCT).
Justice Tinuade Akomolafe-Wilson who led two other Justices sitting on the appeal said they reserved their judgment in the matter, but that the date of the delivery of the judgement would be communicated to the parties in due course. The justices made this pronouncement shortly after parties adopted their appellant’s and respondent’s briefs.
The Transparency International described CCT’s acquittal as an attempt to demoralise corruption fight, just as the Federal Government described CCT’s upholding of the no-case submission of Saraki as outrageous and travesty of justice, adding that refusal to appeal Saraki’s acquittal will have negative implication for Nigeria’s fight against corruption as well as jurisprudence on false asset declaration.
Consequently, on June 22, 2017, the Federal Government filed an 11-ground notice of appeal against the June 14, 2017 judgment of the CCT acquitting Saraki of the 18 charges of false asset declaration and other related offences preferred against him in September 2015.
The two-man panel of the CCT headed by Danladi Umar had anchored its decision on the grounds that the prosecution, with its four witnesses and 48 documentary exhibits tendered, was unable to establish any prima facie case against the Senate President.
Umar, in his lead ruling, exonerated Saraki, holding that failure of the prosecution to obtain Saraki’s statement and make it a part of the proof of evidence was fatal to the case.
He adjudged as “absurd” that neither Saraki’s statement nor the report of investigation said to have been carried out was produced before the tribunal.
He agreed with the defence team led by Chief Kanu Agabi (SAN), that the prosecution’s evidence had been manifestly discredited during cross-examination by the defence.
He added that the evidence adduced by the prosecution led by Mr. Rotimi Jacobs (SAN) was “so unreliable that no reasonable tribunal could convict” based on it.
The tribunal chairman specifically noted that the third prosecution witness, Mr. Samuel Madojemu, who is Head, Intelligence Unit of the Code of Conduct Bureau, only gave hearsay evidence on the information the witness purportedly received from the EFCC.
But the Office of the Attorney-General of the Federation, through its private prosecutor, Jacobs, on June 20, 2017, filed an 11-ground notice of appeal against the CCT’s judgment.
It faulted all the grounds on which the CCT predicated Saraki’s acquittal, describing the entire judgment as unreasonable and unconstitutional. Jacobs subsequently filed an appellant’s brief on July 28, 2017 formulating five issues for determination.
Saraki, through his lead counsel, Chief Kanu Agabi (SAN), also filed his respondent’s brief on August 22, 2017.
While adopting his appellant’s brief on November 14, 2017 Jacobs urged the court to grant the Federal Government’s appeal and hold that the judgment of the CCT was perverse. He also reiterated that the CCT erred by adjudging the oral evidence of the prosecution’s third witness, Madojemu, the Head, Intelligence Unit of the CCB, as hearsay.
He said, “It is our position that the lower tribunal did not consider the evidence adduced by the prosecution. The emphasis I will like to make is on the evidence of PW3. We argued that there is nothing like hearsay evidence in the oral evidence of PW3, who is the investigative officer. There are authorities of the Supreme Court that says once the evidence of a witness is supported by documentary evidence, his oral testimony merely the hanger that holds the evidence.”
Arguing his five issues for determination in his appellant’s brief, Jacobs urged the Court of Appeal to hold that the Code of Conduct Tribunal was wrong in “upholding a no-case submission raised by the respondent at the close of prosecution‘s case. He also urged the court to hold that the learned members of the tribunal were wrong “in holding that the respondent was not invited by the EFCC (the Economic and Financial Crimes Commission in the course of its investigation”.
Jacobs also argued that the tribunal was wrong “in holding that the investigation conducted by a team of investigators from the Economic and Financial Crimes Commission and the Code of Conduct Bureau was illegal and unknown to law.”
He also argued that tribunal was wrong “in holding that failure to produce the original Asset Declaration Forms and the Written Statement of the respondent, is fatal to the case of the prosecution when the Prosecution tendered the Certified True Copies of the documents.”
Jacobs also argued that the Code of Conduct Tribunal was wrong “in upholding the no case submission in the instant case, regard being had to the onus of proof on the parties as prescribed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”
Concluding his brief of argument, he urged the court allow the appeal and direct Saraki to open his defence before the CCT. He stated, “In view of the argument canvassed above, we urge your Lordships to allow the appeal, resolve all the issues in favour of the appellant and hold that the appellant has made out a clear case against the respondent to warrant calling upon him to open his defence. We therefore your Lordships to remit the case back to the tribunal for the defendant to open his defence.”
In his oral submission on November 14, 2017, Jacobs urged the court to hold that the CCT ruling was perverse. He said, “I urge your lordship to allow this appeal and hold that the ruling of the tribunal is perverse.”
In response, Agabi urged the court to dismiss the Federal Government’s appeal for lacking in merit. Agabi insisted that the third prosecution witness’ evidence, contrary to Jacobs’ contension was hearsay.
He said, “They contended that because PW3’s evidence supported by documents it was not hearsay, but there are no documents in support the evidence. The witness said he derived his evidence from what he was told by somebody he did not name. He also argued that the prosecution wrongly contended that the onus was on Saraki to prove his innocence, the reason why he said the prosecution failed to call enough witnesses.
He said, “The contention of the appellant (prosecution) at the tribunal was that the onus was on the respondent (Saraki) to prove his innocence. It is not surprising that they did not call witnesses. May I urge your lordship to dismiss this appeal, it has merit.”
Agabi submitted the court as issues for determination and which he urged the court to answer in the affirmative, “Whether the tribunal was right when it held, contrary to the submission of the prosecution, that the burden of proof was upon the prosecution and not the defendant and that the Prosecution failed to discharge that burden.
“Whether the tribunal was right when it held that the prosecution had not made out a case warranting an answer from the defendant and in consequence made an order discharging and acquitting the defendant. Whether the tribunal was right when it held that the evidence of the prosecution witnesses was hearsay which afflicted and bedeviled the entirety of the prosecution’s case in violation of sections 37, 38 and 126 of the Evidence Act. Whether the tribunal was right when it held that the hearsay evidence of the prosecution coupled with the general reference to a team the membership of which was not specified could not establish a prima facie case against the defendant.
“Whether the tribunal was right when it held that the failure of the Prosecution to respond to seven of the issues raised by the defendant constituted an admission of those issues leaving the tribunal with no alternative than to rule that no case had been made out against the defendant warranting an answer from him.
“Whether the tribunal was right in holding that the failure of the Prosecution to obtain a statement from the defendant. was fatal having regard to the decision of the Supreme Court in OLAY/NKA V THE STATE (2007) 9 NWLR (PART 1040) 561 followed by the Court of Appeal in ADEBA YO IDOWU VS THE STA TE (2011) LPELR-CA/AE/43/C/2010 decisions which were binding on the Tribunal (AR/SING FROM GROUND 3 OF THE GROUNDS OF APPEAL).
“Whether the tribunal was right when it held that the charges were bad and that in any case essential elements of all the offences charged were not proved quite apart from the fact that the evidence of the prosecution was manifestly unreliable having been so discredited as a result of cross examination that no reasonable tribunal could safely convict on it.”
The charges instituted against Saraki before the CCT related to the alleged breaches of the code of conduct for public officers, acts which were said to be punishable under the Constitution and the CCB/CCT Act.
Saraki, Federal Government said allegedly committed the breaches by making false declaration of his assets while being governor of Kwara State between 2003 and 2007 for his first term and between 2007 and 2011 for his second term as governor and from 2011 to 2015 as senator.
Among the breaches were that he obtained N375m loan from Guranty Trust Bank Plc in 2010, converted it to £1,515,194.53 and transferred to United Kingdom for full and final mortgage payment for a London property. The prosecution accused him of abuse of office by paying back the loan with funds belonging to Kwara State Government.
Additional charges against him included allegation that he continued to receive salary and emoluments as Governor of Kwara State after the expiration of his tenure and at the same time, from the Federal Government as a senator between June 2011 and October 2013. He was also said to have failed to declare to the Code of Conduct Bureau on assumption of office as Governor of Kwara State in 2003, his leasehold interest leasehold in the property at 42, Remi Fani Kayode Street, Ikeja, Lagos.
The charges also included allegation that Saraki failed to make a written declaration of his “properties and assets”, that is, N77m made into his account with Guaranty Trust Ban, GRA, Ilorin branch on September 5, 2007. The prosecution alleged that the sum of N77m was not fairly attributable to his “income, gifts or loan approved by the Code of Conduct for Public Officers”.
The prosecution also alleged that while being a public officer, operated bank accounts outside Nigeria, and failed to declare the foreign accounts to the Code of Conduct Bureau while being governor and a senator during the period.
Properties that he allegedly made false declaration about included 17, 17A and 17B Mcdonald, Ikoyi, Lagos; Plot 2A, Glover Road, Ikoyi, Lagos; 37A, Glover Road, Ikoyi, Lagos which he allegedly bought through Carlisle Properties; No. 1 and 3 Targus Street, Maitama, Abuja, otherwise known as 2482, Cadastral Zone A06, Abuja.
Just as in William Shakespeare’s play Hamlet, Act III, Scene I, ‘’ to be, or not to be’’ which is the opening phrase of a soliloquy spoken by Prince Hamlet in the so-called “nunnery scene”; seems to be playing out in the hearts of President Muhammadu Buhari’s administration, Saraki and the Judiciary while the gullible or discerning public breathless await the second judgement day. The trio of FG, Saraki and the Judiciary have so much at stake separately.
While the proprietary of the FG’s anti-corruption war has been subjected to critical inquisitorial and doubts in the recent time, Appeal Court becomes a good shield if it keeps this case alive for Buhari’s anti-corruption mantra. But, then his party, APC is facing a threat of implosion, with the recent exit of the former Vice-President, Abubakar Atiku. In either way the judgement goes, there are gain and loses for the FG.
Saraki needs this judgement in no other way than upholding the CCT verdict as a boast to contend with Ilorin emirate revolts against ‘’unalloyed loyalty’’ for the Sarakis in the kingdom. The recent local government election held in Kwara state for which the PDP won in his ward Balogun Ajikobi, and at Ille Asileke, Ode-Oyan, Ode-Afagbala wards just to mention but few demands his attention rather than this case.
The courts have been accused of undermining Buhari’s anti-corruption fight by setting so many people standing trial for corruption free in the recent time too. Courts need not bother as long as justice is consciously and conscientiously served; and like the dictate of Verse 81 of Dhamapada, a collection of the sayings of Buddha; otherwise known as Buddhist Scriptures; which says that ‘’Just as a solid rock is not shaken by the storm, even so the wise are not affected by praise or blame.” But whichever way the judgement goes, so many issues shall be served while others would be at stake as it’s reminiscent of high profile or politically exposed cases in the courts Only time shall tell.