ADE ADESOMOJU writes on the effect of the Code of Conduct Tribunal’s attitude towards Section 396(2) of the Administration of Criminal Justice Act 2015 on the ongoing trial of Senate President, Bukola Saraki
The Code of Conduct Tribunal stated sometimes in 2012 that its decision on November 30, 2011, dismissing the charges preferred against a former Lagos State Governor and now National Leader of the All Progressives Congress, was made in error.
The Senate President, Dr. Bukola Saraki, still insists that the 13 counts of false and anticipatory asset declaration preferred against him before the CCT should be bound by the tribunal’s decision in Tinubu’s case.
In his motion argued on March 18 before the CCT, on which ruling has been adjourned till March 24, 2016 (today), Saraki asked the tribunal to decline jurisdiction in his case on a number of grounds, including that the filing of the charges breached the provisions of Section 3(d) of the Code of Conduct Bureau and Tribunal Act.
Saraki argued that the charges were instituted in breach of his right to fair hearing because he was not confronted with the alleged infractions in his four assets declaration forms which he submitted between 1999 and 2007 as Governor of Kwara State, before the charges were preferred against him. His lawyer, Kanu Agabi (SAN) contended that the failure of the Code of Conduct Bureau to invite the Senate President and confront him with the complaints against him was a breach of Section 3(d) of the Code of Conduct Bureau and Tribunal Act.
Agabi reminded the tribunal that the failure on the CCB’s part was the reason ?the tribunal dismissed the charges against Tinubu in 2011. He urged the tribunal to, in the same manner, discharge Saraki.
In opposing the argument, the lead prosecuting counsel, Mr. Rotimi Jacobs (SAN), drew the attention of the Danladi Umar-led tribunal to the CCT’s decision in the case of Federal Republic of Nigeria v. Emil Lemke Inyang?, in which the CCT admitted that it erroneously freed Tinubu by wrongfully relying on Section 3(d) of the Code of Conduct and Tribunal Act.
Jacobs said the tribunal’s decision in Inyang’s case, which was numbered CCT/ABJ/02/2012,? reflected the true intention of Paragraph 3(e) of the Part 1 of the Third Schedule of the 1999 Constitution, which had removed that proviso referred to by Saraki in Section 3(d) of the Code of Conduct Bureau and Tribunal Act.
Section 3(d) of the Code of Conduct Bureau and Tribunal Act was said to be contained in the 1979 Constitution but was subsequently removed from the 1999 Constitution.
In the Inyang’s case cited by Jacobs, the CCT stated that its attention was not drawn to the provisions of Section 3(e) of Part I of the Third Schedule to the 1999 Constitution before it took the decision to free Tinubu.
The ruling of the CCT in Inyang’s case read in part, “The provision under Section 3(d) of the Code of Conduct Bureau/Tribunal Act has introduced a different dimension to the usual way of prosecuting cases in our law court.
“The tribunal agrees with learned SAN that Section 3(d) of the Code of Conduct Bureau and Tribunal actually creates a condition precedent.
“It was the basis of this that this tribunal struck out the charge – CCT/ABJ/01/11 – filed against Asiwaju Bola Ahmed Tinubu on 30/11/11. Although many ex-governors, who had a case to answer, were invited by the Code of Conduct Bureau, and the complaints against them were not referred to the tribunal, courtesy of the proviso of Section 3(d) of the Act, Governor Bola Ahmed Tinubu was not invited. Justice must not only be done but it must be seen to have been done.
“Again, the attention of the tribunal was not drawn to Section 3(e) of Part I of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, when the charge CCT/ABJ/01/11 was being considered.
“The phrase, ‘where necessary and where appropriate’ used by the Code of Conduct Bureau and Tribunal Act and the 1999 Constitution seem to complement each other.
“But what has caused this tribunal to lose sleep is the directive (proviso) inserted in Section 3(d) of the Act that the Bureau shall allow the suspect to go home if the suspect, who has been invited by the Bureau to make a statement on the allegation against him/her, admits the commission of offence. But he shall be prosecuted, referred to the tribunal, if he pleads not guilty to the offence.
“Once a suspect admits committing the offence, he shall be given tea, and asked to go home a free man, after shaking hands with the Chairman, and members of the bureau for a job well done.”
The CCT had had to expend many words to correct the mistakes it made in Tinubu’s case?.
It is not unlikely that more words would not be used to correct perceived errors already committed in Saraki’s ongoing trial.
On March 11, the tribunal agreed to adjourn Saraki’s trial till March 18 for hearing of his motion challenging the jurisdiction of the tribunal to entertain the case.
Some lawyers believed that it was erroneous on the part of the tribunal to have heard such an application which, in essence, was challenging the validity of the charges under the new regime of the Administration of Criminal Justice Act, 2015.
Some, who did not see anything wrong in hearing such an application, however found it unjustifiable to deliver a ruling on such a motion before proceeding to trial.
But that was exactly what the tribunal did on March 18 when it heard Saraki’s motion challenging the CCT’s jurisdiction on the basis of defective charges.
Some lawyers, who aired their views on the issue, believed that the tribunal will be flouting the provisions of Section 396(2) of the Administration of Criminal Justice Act, if it goes ahead to deliver its ruling which it adjourned till today.
In its judgment delivered on February 5, 2016, on Saraki’s appeal which also challenged the validity of the 13 counts preferred against him on different set of grounds, the Supreme Court had ruled that contrary to the Senate President’s contention, the ACJ Act was applicable to the tribunal.
The Supreme Court in the said judgment ruled that though the tribunal was not a superior court of record, its proceedings were meant to be criminal in nature going by the intention of the drafters of the law.
The provisions of Section 396(2) of the ACJ Act, if applied strictly as the Chief Justice of Nigeria, Justice Mahmud Mohammed, warned recently, the motion would have been deferred till after the conclusion of the trial or if heard at all, ruling on it would be taken together with the judgment in the substantive case.
Section 396(2) of the ACJ Act reads, “After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment, provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.?”
The CJN had in his opening remarks at the 2016 refresher course for judicial officers on current trends in law and administration of justice on March 14, urged judges to strictly apply the provisions of the ACJ Act in order for it to achieve its intended goals.
The CJN said, “I must similarly urge Your Lordships to treat cases related to economic crimes and corruption with the necessary urgency that the previously mentioned 2013 Practice Directions mandate us to apply.
“Judges must also be stringent in applying the law strictly in order to render justice in a satisfactory manner to all parties whether they are the state, the accused or the victim.”
Justice Mohammed hailed the ACJ Act, 2015, particularly for its provisions which had put an end to interlocutory applications deployed by high profile suspects to stall their trial.
He said, “My Lords, as you all are well aware, the judiciary has had to endure intense, largely unjustified and grossly uninformed criticisms regarding delay in the administration of justice.
“However, I am proud that the judiciary was well ahead of the curve when the 2013 Practice Directions on Serious Crimes were adopted as the Directions were aimed at reducing criminal trial delays.
“Nonetheless, the new Act strengthens our resolve as it provides that applications for stay of proceedings shall no longer be heard in respect of a criminal matter before the court.
“This unprecedented provision puts a stop to the delays occasioned by interlocutory applications to stay proceedings pending appeal on preliminary matters when the substantive issues are yet to be tried on the merits.
“Upon arraignment, the trial of the defendant shall proceed from day-to-day until the conclusion of the trial, while each party is entitled to only five adjournments not exceeding two weeks each. Where the trial is still not concluded, the interval for adjournments will be provisions will be fully utilised.”
A prominent prosecuting counsel for the Economic and Financial Crimes Commission, Mr. Festus Keyamo, said there was a conflict between the provision of the ACJ Act which says that ruling on preliminary objection should be taken alongside final judgment and the constitutional provision which mandates a court to deliver ruling on any application heard within three months.
Keyamo said, “If you say such an application can be heard and the ruling on it deferred till after trial is concluded, do you know when trial will be concluded?
“The Constitution says decision of a court on any issue brought before the court after the hearing should be delivered within three months.?
So, it could not have been the intention of the ACJ Act for such preliminary objection to be heard and ruling on it deferred till after trial is concluded.”
But another Lagos lawyer, Mr. Jiti Ogunye, differed with Keyamo, and judges to be reminded of the mischief that the new law was enacted to cure while interpreting it.
Ogunye said, “The CCT’s decision is not in consonance with the new law.
“However, we quite appreciate that the law is new, there is bound to be misrepresentation and misapplication of the law. Judges and lawyers need to get familiarised with the law.
“What should be at the back of everyone is the mischief which the law tries to cure. Once that is at the back of our mind then the law can be given its right interpretation.
“Now that an error has been committed the tribunal should not persist in its error.”
?The President of the ?Centre for Socio-Legal Studies, Prof. Yemi Akinseye-George (SAN), while contending that such an application could be heard, stressed that ruling on it should only be delivered after entire trial is concluded.
Akinseye-George, whose centre played a key role in the drafting of the new law and the advocacy on creating awareness about its provisions, said the essence of prohibiting courts from ruling on such a preliminary objection was to prevent a situation whereby an interlocutory appeal could create a window for the granting of an order of stay of proceedings, which Section 306 of ACJ Act had barred.
Akinseye-George said, “Section 396(2) of the Administration of Criminal Justice Act is clear. When an application is made, the judge can defer ruling on the application till the time of its decision on the substantive matter.
“The whole idea is that it could form the basis of interlocutory appeals which can lead to granting of stay of proceedings. The essence of the provision is to ensure that trial is expeditiously concluded and the all the matters together with the interlocutory application are taken together.”
On his part, a former Chairman of the Ikeja Branch of the Nigerian Bar Association, Mr. Monday Ubani, also said it was better for rulings on interlocutory applications challenging the court’s jurisdiction to be delivered at the end of the trial along with the judgment.
Ubani said, “I think ruling on the preliminary objection can be taken together with the judgment and on no account should any interlocutory appeal be allowed to cause a stay of proceedings.
“Going by the constitutional provisions stipulating time limit within which an interlocutory appeal can be filed, it is better to take such application after trial has been concluded so that both the appeal against the judgment on substantive issue and the ruling on interlocutory application can be made at the same time.”
On March 16, Justice Okon Abang of a Federal High Court in Abuja refused to hear a notice of preliminary objection filed by the former Chief of Defence Staff, Air Chief Marshal Alex Badeh (retd.), who is standing trial on 10 counts of money laundering.
Relying on the provisions of Section 396(2) of the ACJ Act, Justice Abang said such an application could not be heard until after trial was closed and he then directed the prosecution to immediately open its case.
If, today, the CCT rules against Saraki, it can mark the beginning of another journey to the Supreme Court, a development which got the case stalled between November 12, 2015, when the apex court granted an order of stay of the proceedings of the trial, and February 5, 2016, when its (the Supreme Court’s) final judgment validating the trial was delivered.