“The prosecution did not obtain the statement of the accused, and make it part of the proof of evidence in the case. Undoubtedly, the statement of the accused in response to the petition, is the foundation of his defence . Failure to have, keep and make the statement part of the proof of evidence, is fatal to case of the prosecution”
In the Code of Code Tribunal
Holden at Abuja
On 8th Day of June, 2017
Delivered on Wednesday, 14th Day of June,2107
Before Their Lordships
Hon. Danlami Yakubu Umar- Chairman
Hon. Williams Atedze Agwadza- Member
Judges, Code of Code Tribunal
Charge No. CCT/ABJ/01/2015
Federal Republic of Nigeria ………Complaint
Dr Olubukola Abubukar Saraki……Accused
Lead Ruling delivered by Honourable Danlami Yakubu Umar- Chairman
The prosecution charged the Defendant before the Code of Conduct Tribunal on eighteen counts (18). The first was on false declaration while he was the Governor of Kwara State, at the end of which tenure 2007, he neglected to declare to the Code of Conduct of Bureau through his asset declaration, that he has an interest in a property known as No 1, McDonald Road, Ikoyi, Lagos, through a company known as Tiny-Tee Company Limited. This act was said to be in breach of Section 15(1) and (2) of the Code of Conduct Bureau and Tribunal Act, as incorporated under paragraph 18 part 1 Fifth Schedule of the 1999 Constitution (as amended)
Count two States that, while the Defendant was the Governor of Kwara State, he made a false declaration on the 2nd day of June,2011 in the assets Declaration Form CCB1 at the end of his tenure as the Governor of the State in 2011, by his failure to declare his interest in a property known at No 15, McDonald Road, Ikoyi.
Count three relates to false declaration in respect of a property known as No 15A and B Carlisle Properties Limited.
Count four, the Complaint alleged that the Defendant falsified his Asset Declaration at the end of his tenure as the Executive Governor of Kwara State in 2011, and on assumption of the office as a Senator in 2011. The Defendant falsely declared that he acquired No. 17A, MacDonald Road , Ikoyi on the 6th September, 2006, from proceeds of the sale of rice and sugar.
Count six reads that the Defendant refused to declare his outstanding liabilities of N315,054,355.92 obtained from Guarantee Trust Bank PLC.
Count eight is to the effect that the Defendant failed to make a written declaration of his properties and assets to wit: cash lodgment of the sum of N77,000,000.00 in the Guarantee Trust Bank on 5th September, 2007.
By Count nine, the Defendant was said to have made a false declaration refusing to declare his assets on Plot 2A,Glover Road, Ikoyi which was acquired between 2007 and 2008 through Carlisle Properties Limited.
Count ten and eleven contained an allegations that the Defendant failed to declare his properties known as No.1 and 3 , Tagus Street, Maitana ,Abuja, on his assumption of office as Governor in 2003.
Count twelve relates failure of the Defendant to declare No. 3,Tagus Street, Abuja acquired through Carlisle Properties Limited. upon assumption of office for the second term in 2007.
Count thirteen reads that the Defendant failed to declare the property, the mortgage of which was redeemed with the sum of £1,516,194.53 at the end of his tenure as the Governor of Kwara State, which sum was transferred in three instalments from his domiciliary account with the Guarantee Trust Bank.
Count fifteen States that the Defendant, while being a Public Officer, operated a foreign bank account when he transferred the sum of $73,228.28 from his Guarantee Trust Bank account to the American Express Service Europe Limited for onward credit to his account in New York.
Count sixteen is to the effect that the Defendant made a false declaration of his assets, when at the end of his second tenure as the Governor of Kwara State, he failed to declare his interest in an American Express Card New York, where he transferred an aggregate sum of $3,400.000 between August, 2009 and October, 2012.
Count seventeen States that while Dr Saraki was a Senator in Nigeria between June, 2011 and October, 2013, he received monthly salaries or emoluments as Governor of Kwara State.
Count eighteen reads that the Defendant made a false declaration in that he claimed to have owned substantial and controlling shares in Carlisle Properties Limited and Tiny-Tee Limited.
At the trial the Prosecution called four witnesses who gave evidence on its behalf. The Defendant made a No Case Submission which was opposed by the Prosecution. The Tribunal ordered Counsel for the parties to file written submissions and addresses.
ISSUES FOR DETERMINATION
What is a submission of No-case to answer and when can it be made or upheld?
Whether at the close of the Prosecution’s case , a prima facie enter his defence, has been made.
Counsel for parties made copies references to various.
COURT’S JUDGEMENT AND RATIONALE
By the provisions of Section 302 and 303 of the Administration of Criminal Justice Act,2015 the court may, on its own motion or on an application by the Defendant after hearing the evidence of the Prosecution, where it considers that the evidence against the Defendant or any of the several Defendants, is not sufficient to justify the continuation if the trial, record of a finding of not guilty in respect of the Defendant, without calling on him or them to enter his or their defence, and the Defendant shall accordingly be discharged and the court shall then call on track remaining Defendant (s), if any, to enter his or their defence. This statutory provision was given force in OKORO V STATE (1988)NWLR (Pt. 94) 255 which was relied on by learned Counsel for the Accused in this case. In IBEZIAKO V COP (1963) 1 ALL NLR61, it was held that a submission of No-case to answer may be properly made and upheld where:
1. There has been no evidence to prove an essential element in the alleged offence either directly, circumstantial or inferentially;
2. The evidence adduced by the Prosecution has been so discredited as a result of cross- examination or manifestly unreliable that no reasonable Tribunal can safely convict upon it.
On the second issue which was the main issue before the Tribunal , it was observed that 18 count charge against the Accused, was predicated upon the Affidavit of PW3- Mr. Samuel Madojemu which was attached to the prove of evidence in support of the Prosecution’s case. By his testimony, PW3 stated that ” details of the outcome of the investigations as highlight in the affidavit by me, were based upon the information given to me by members of the team. ” The tribunal adjudged the foregoing testimony an epidemic which bedeviled the entirety of the Prosecution’s case. The summary of the evidence was that PW3 had no first hand knowledge of all he said and documents tendered . This is hearsay evidence, in contravention of the provision of Section 37,38,and 126 of the Evidence Act,2011.
Hearsay evidence is inadmissible, except as otherwise provided under any hearsay rule or other provisions of the Act. The affidavit evidence of PW3 is apparently inadmissible in law. Hearsay evidence is not admissible for the purpose of establishing criminal liability BUHARI V OBASANJO (2005)ALL FWLR (Pt. 273)1.
The evidence required to establish a crime, must be that of a witness who saw or heard or took part in the transaction upon which he was giving evidence. Reference to “the team” in the evidence of PW3 so constituted is unknown to law and never contemplated by the Act under which the Defendant is being tried. The team was made of the CCB, DSS and EFCC. The combined effect of the inadmissible evidence and illegality of the team that investigated the Accused, is that the charge is incurably defective.
More importantly, the Prosecution did not obtain the Statement of the Accused, and make it part of the proof of evidence in the case. Undoubtedly, the Statement of the Accused in response to the Petition, is the foundation of his defence. Failure bto have, keep and make the Statement part of the proof of evidence, is fatal to the case of the Prosecution. Since the burden of proof is on the Prosecution by Section 35(6) of the 1999 Constitution, it will be fundamentally erroneous for the tribunal to call on the Accused to prove his innocence. The burden is static; it never shifts.
By the provision of Section 303(3) of the Administration of Criminal Justice Act 2015, the guidelines for the success of a No-Case Submission, are clearly provided for. The vital witnesses, who should have been called in aid of the Prosecution’s case were not called. This led to the failure in linking the Accused with the commission of the offences with which he was charged.
Counsel for the Prosecution, having conceded that Section 15(2) of the Act and the Constitution do not prescribe any offence or crime, but merely created a presumption against a party who made a false statement, it can be safely concluded that no offence has been committed by the Accused, and the Tribune is at liberty to discharge and acquit him holding that no Prima Facie Case has been made out against him.
No Case Submission upheld; the Accused person was discharged and acquitted.
Rotimi Jacobs, SAN for the Complainants (Prosecution)
Kanu Agabi, SAN for the Accused person
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(Publishers of Nigerian Monthly Law Reports (NMLR)