It is no longer news that the Code of Conduct Tribunal in Abuja on 14/6/2017 discharged and acquitted the Senate President, Dr. Bukola Saraki, of all the 18 charges of false asset declaration and other related offences preferred against him. While Saraki’s supporters, upon the receipt of the news, described same as a victory for democracy, reactions in other quarters especially in the opposing camp, appear to suggest that the decision of the CCT was perverse and politically motivated.
As usual, parties to the proceeding and indeed, the general public, seemed more concerned with the outcome of the proceeding than the reasonings that informed the decision by the tribunal. This work considers the grounds advanced by the CCT panel as forming the rationale for its decision in the Saraki’s trial and concludes that although the conduct of the prosecution’s case in the proceeding was, to put it mildly; poor, shabby, unprofessional and an open exhibition of incompetence, the consequent ruling of the panel was perverse and occasioned a miscarriage of justice. It is therefore liable to be set aside on appeal.
1. That the affidavit evidence of PW3 was hearsay,
2. That the Defendant was Investigated by an illegal team,
3. Failure of prosecution to obtain defense statement and present report of its investigative team to tribunal
4. Unreliability of evidence and failure to call vital witnesses
5. Tendering of certified true copies of documents in lieu of their originals
We shall now consider these in some greater details:
1) That Affidavit evidence of PW3 was hearsay: According to the code of conduct tribunal, the affidavit evidence of PW3 on which the entire case of the prosecution was purportedly hinged was hearsay and therefore inadmissible. In the words of Atedze Agwaza, a co-member of the tribunal:
“The formulation of the 18 counts against the defendant is predicated on the affidavit of PW3, Mr. Samuel Madojemu, who is the Chief Investigator at the Code of Conduct Bureau. The affidavit was filed as part of proof of evidence in support of the prosecution’s case. Affidavit-evidence is evidence nonetheless. By his testimony, PW3 said, and I quote, ‘details of the outcome of the investigation as highlighted in the affidavit by me were part of information given to me (sic) members of the team’. I find and hold that this apposite testimony is an affliction and epidemic that bedevilled the entire prosecution’s case and that particular evidence has rendered the whole evidence of the prosecution invalid. It connotes that PW3 had no first-hand knowledge of all he said and the documents tendered. This is hearsay evidence and violates sections 37, 38 and 126 of the Evidence Act 2011. The affidavit evidence of PW3 is manifestly inadmissible in law and, so I hold.”
With profound respect to the learned panelist, the above decision is misconceived, arrived at per incurium and made in ignorance of the provisions of section 115(1),(3) & (4) of the Evidence Act, which inter alia, operates as an exception to sections 37 and 38 of the Act. The section in effect allows the admissibility of contents of an affidavit, the source of which may not have been drawn from the personal knowledge of the deponent. The combined implication of the subsections of the said section 115 is that statement of facts deposed to in an affidavit which is grounded on information received from a person other than the deponent is admissible provided the following requirements are met; That is that the deponent must:
a. believe the information to be true,
b. set forth the facts and circumstances forming the ground of his belief and
c. state the name and other reasonable particulars of the informant as well as the time, place and circumstances of the information.
Accordingly, the tribunal in the circumstance ought to have allowed the affidavit evidence of PW3 but not hold same as hearsay and therefore, inadmissible. At least not on the reason only that the details of the outcome of the investigation as highlighted in the affidavit were part of information given to the deponent by members of his team. Specifically, Section 115(1) of the Act allows as admissible, affidavit depositions drawn from the personal knowledge of the deponent or information received from others. The affidavit of PW3 in our view, came within the meaning and intent of the second leg of subsection (1) of section 115 and ought to have been allowed together with the annexures that accompanied it. It should be noted that affidavit evidence differs in many respects from oral evidence. The provision of section 126 therefore does not, in our view, applied as suggested by the tribunal.
2) That Defendant was Investigated by an illegal team: Another view by the tribunal which in fact also formed a core of its decision, was that the Senate President was investigated by a purported illegal team comprising officials of the Code of Conduct Bureau, the Economic and Financial Crimes Commission and the Department of State Service. According to the panel, “such investigative team was strange to both the Constitution and the CCB/CCT Act under which Saraki was charged.” For Umar, the chairman of the panel, “This team has no constitutional backing or statutory backing.”
Although information on this is at the moment, expectedly scanty, it goes without saying or the need to call in aid authorities, that the relevant government agencies are creatures of law imbued with powers to conduct investigations of varying kinds, including the one carried out in the present proceeding. The investigation so conducted, we submit, was the concerted efforts of the three sister agencies, through the instrumentality of their officials who while carrying out their instructions, were no more than agents acting for and on behalf of the said agencies. The agents or officials, to our minds, would have become a separate body and therefore, unknown to law only if in the course of the said investigation or proceeding, they had constituted and or held themselves out as acting in their own behalf and not on behalf of their respective agencies. Otherwise, it is immaterial that the said agents/officials in the course of the proceedings referred to themselves simply as “investigative team”. The relevant question should have been whether the authority of the affected officials can be traced back to their primary agencies, which are in law, known persons. The tribunal in our considered opinion erred therefore, when it held that the investigative team was illegal, unknown to law and that the charge against the defendant was for that reason rendered incurably defective and amounted to a miscarriage of justice suffered by the defendant.
Granted without conceding that the investigative team was unknown to law and illegal; its report, though a product of illegal investigation, is nonetheless admissible under section 14 of the Evidence Act, as relevance in law, is the bedrock of admissibility and the courts – tribunals inclusive- no longer sacrifice the interest of justice on the altar of form or technicality.
3) Failure of prosecution to obtain defense statement and present report of its investigative team to tribunal: At present, it is unclear if the prosecution’s failure to obtain and tender report of its investigation as well as defendant’s statement was an error on its part or as a result of the wrongful refusal by the tribunal to admit into evidence the affidavit evidence of PW3, with its accompanying annexures. It is our submission that if the former were the case, it amounted to gross negligence and a breach of professional duty on the part of the prosecution; we accordingly commend the entire prosecuting team to the appropriate authority for investigation and appropriate sanctions. Where however, the latter was the case, we place reliance on our earlier arguments in paragraph 1 above to contend that the refusal to admit into evidence the affidavit of PW3 together with its annexures – among which might have been found the relevant report and defendant statement – was wrongful and liable to be set aside especially in the light of the clear and compelling provisions of section 115 of the Evidence Act.
4) Unreliability of evidence and failure to call vital witnesses: The tribunal chairman in his ruling, observed that none of the four witnesses called by the prosecution, gave evidence that could prove any of the ingredients of the alleged offences. The second prosecution witness for instance, testified that documents relating to alleged foreign transfers by defendant (which could have greatly assisted the prosecution’s case), had been consumed in a fire incident. Similarly, other evidence adduced by the prosecution and as observed by the panel, were “so unreliable that no reasonable tribunal could convict” based on them.
Further to this, the tribunal observed that the prosecution failed to call key witnesses in support of its case. Agwaza, noted this as follows:
“For example, if you say the defendant was collecting salaries from the Kwara State Government and at the same time from the Senate, why was the Accountant-General of Kwara State not summoned to come and testify? The witness would have helped the tribunal tremendously in casting much light on the alleged offences.”
To our minds, the prosecution had displayed a total lack of commitment and diligence in the successful pursued of its case; little wonder therefore, it lost out at the tribunal.
5) Tendering of certified true copies of documents in lieu of the originals: The tribunal was further of the opinion that the prosecution chose to tender the Certified True Copies of the Asset Declaration Forms of Saraki instead of the original copies which were available in the prosecution’s custody. On this, the panel held and rightly too, that the failure to tender the originals of the documents was detrimental to the case of the prosecution as the original copy of a document is superior.
We couldn’t agree more. In fact, we make bold to add that it was strange and questionable that the prosecution – comprised of a team of lawyers, most of whom were Senior Advocates- surprisingly lost sight of the mandatory provision of section 88 of the Evidence Act, which requires the proof of all documents to be by primary (original) evidence. Indeed, this was unfortunate.
We wish to submit by way of conclusion that although the prosecution’s gross negligence and poor handling of its case, resulted in the discharge and acquittal of the defendant at the code of conduct tribunal, all hope however, is not lost as there is a chance that the tribunal’s decision can be overturn on appeal. We opined as wrongful; the tribunal’s refusal to admit into evidence the affidavit evidence of PW3, it’s view that the defendant was investigated by a team unknown to law and possibly, its further opinion that prosecution’s failure to obtain defense statement and present report of its investigative team to the tribunal was fatal. Indeed, we are convince that the defendant has a case to answer and that the prosecution has in its disposal, all that it will take to prove this on appeal. The prosecution, in the interest of justice and victory for our crippling democracy, is accordingly so urged.
The author is a law graduate from the Benue State University, Makurdi. He is presently awaiting admission into the Nigerian Law School and could be reached via his phone number: 08069653159 or email @ email@example.com.