The Code of Conduct Tribunal is currently hearing an application of a no case submission, filed by Counsel to Justice Walter Onnoghen.
At the last adjourned date, Counsel to the Federal Government, Aliyu Umar, announced that they have closed their case of non asset declaration and operation of foreign account against Justice Walter Onnoghen after calling three witnesses to the stand.
Counsel to Justice Onnoghen had informed the tribunal of the intention in filing a no case submission, but would need time to write an address.
At the resumption of proceedings, Counsel to Justice Onnoghen, informed the Court that they had just been served this morning with the prosecution written address.
He prayed the court to be allowed to reply orally on the points of law.
The prosecution counsel in his response did not object to the defence response on point of law, but insisted that once issues are raised, he will object to the fact.
The Defence counsel replying on points of law, informed the tribunal, that the prosecution have not been able to establish a prima facie case to make the defendant enter his defence.
He adopted his written address and prayed the tribunal to uphold the no case submission and discharge and acquit the defendant, stressing that the CCB is bound by the provisions of the 1999 Constitution and the CCT Act, 2014.
He further submitted that the CCB disregarded and corrupted the procedure by failing to comply with its standard operational procedures.
Mr Awomolo also insisted that no investigation and finding into the petition was carried out, and that no legal opinion as required by the standard operational procedures was gotten.
Where there is no investigation they can not prosecute, he argued.
The defence Counsel told the tribunal that Exhibit 1 is a petition written by a faceless and anonymous person, who was not brought before the tribunal, so the submission is that it is a documentary hearsay and is inadmissible.
The petitioner could not come up and show himself, so the exhibit should be expunged.
Making reference to exhibit 4 and 5, the defence Counsel, stated that they were products of a computer from the bank.
The documents were authenticated by two officers of the bank, who were not called as witnesses, stressing that there is no affidavit evidence or oath that described the manner in which it was produced according to Section 34, of the Evidence Act, 2011.
According to him, the section demands that there shall be a certificate issued by the maker of the computer generated evidence, stating that Section 84 (2)and (4) of Evidence Act are mandatory, and were there is non-compliance, the document can not be admissible.
Mr Awomolo also told the tribunal that exhibit 4, was forwarded to the EFCC, it was not addressed to the chairman of the CCB, so its a stranger to the proceedings.
The defence Counsel is praying that the court should accept his submissions and discharge and acquit the defendant and also tender an apology to the CJN for bringing shame to the Justice.
In response, Counsel to the federal government, relied on Section 306 of the ACJA, stating that the defendant is charged for non asset declaration, which he has admitted to in writing that he forgot to do so.
What more evidence those the defence want? The prosecution asked, stressing that the prosecution do not need to bring in all the staff of the CCB to prove his case.
The Tribunal has stand down till 1:30pm to deliver judgment .
*FRN V. ONOGHEN * CCT PROCEEDINGS FOR FRIDAY, 29 March 2019
Proceedings were adjourned to start today at 9.00am. Defendant and the Defence Team arrived the CCT courtroom before 9.00am. Prosecution’s team arrived later. Tribunal has now commenced sitting.
Aliyu Umar SAN & 5 Ors for the prosecution
DEFENCE: Adegboyega Awomolo SAN, Chief Chris Uche SAN, Chief Duru Adeleke SAN, Chief Okon Nkanu Efut SAN, Chief JUK Igwe SAN, Elder Wilcox SAN & 24 Ors
Awomolo thanked the Tribunal for the Records of proceedings which they got on Tuesday afternoon, after which they filed their Brief on Wednesday by 10:00am.
He also informed the Tribunal that the Prosecution served him this morning by 09:20am. He stated that ordinarily, he ought to reply on points of law, and it would take a lot of time to go back and do same. He therefore sought that the Tribunal permits him to make an oral reply on points of law.
Aliyu Umar had no objections to that. He stated that if new issues not raised by him in his Address or issues of facts are raised by the Defence, he would have the right to reply.
Awomolo SAN adopted his Written Address filed on 27 March 2019, prays the Tribunal to uphold the no case submission, discharge and acquit the Defendant.
One of the issues raised was whether the CCB complied with the provisions of the law which directs that an act be done in a particular way.
States that the CCB disregarded and failed to comply with the provisions standard operational procedure of the CCB (2017) as could be deciphered from the testimony of PW1 and PW2.
The procedure laid out in Paragraph 6 (1) & (2) of the Standard Operational Procedure is that the CCB shall first set up a committee which would investigate all declared assets and properties, then the Bureau Executive Council would thereafter determine the steps to be taken for prosecution of credible evidence is found to prosecute the Declarant.
StateS that the CCB failed to comply with its own provision
States that the Standard Operational Procedure was established by Section 160 of the Constitution. There was no investigation of the Petition howsoever, there were no findings, no legal opinion, as required by the Standard Operational Procedure. Even if there was, the report of the investigation was kept away from this Tribunal.
Where there is no investigation, there can be no prosecution.
The instant Prosecution is taking the Cart before the Horse and is in violation of the Standard Operational Procedure. Where the law has prescribed the mode and procedure to follow in doing an official act, that procedure must be followed, otherwise, whatever contradictory action taken is void.b*PW1 showed that the CCB did not comply with the law… the process is therefore illegal, unconstitutional and void.
Therefore, the totality of these prosecution is a nullify. *States that Exhibit 1 is the Petition of a faceless, anonymous person. That person was not brought before this Tribunal.
Our submission is that Exhibit 1 is a documentary hearsay and inadmissible. It does not deserve any judicial consideration. Refers the Tribunal to its own decision in FRN v Emil Lemke Inyang (unreported) CCT/ABJ/02/12 delivered on 17 April 2013-
In that case, the Chairman stated that if the petitioner was not going to be brought to testify, why embarrass the Defendant. A warrant of arrest could have been issued if the petitioner refused to be brought to testify. In that case, the said petition was expunged as inadmissible evidence. The Tribunal stated that it is a shame that the Defendant was brought on such a baseless petition.
Awomolo SAN urged the Tribunal to follow his decision in the above referred case, which clearly relates to the instant case.*Also states the case of Saraki v FRN – where the Supreme Court affirmed the wisdom of the Tribunal in not convicting the Defendant on hearsay evidence. Urges the Tribunal to do same in this case. Refers the Tribunal to Section 84 (1)(2)(3)(4) of the Evidence Act.
Reminds the Tribunal that PW3 admitted that Exhibits 4 & 5 were produced from a computer of the bank.
States that the said Exhibits were authenticated by 2 officers of the bank who were not called as witnesses. States that there is no affidavit evidence or evidence on oath identifying the documents and prescribing the manner in which it was produced. *States that the provisions of Section 84 was not complied with. * States that PW3 admitted on oath that she was not a member of the Department that authenticated Exhibits 4&5. * States that where there is non-compliance with the provisions of Section 84 of the Evidence Act, the documents would not be admissible. *States that Exhibit 4 was neither addressed to the CCB nor the CCT, but was addressed to EFCC, and is therefore not part of this proceedings.
States that in the case of FRN v Saraki, the Supreme Court held that the EFCC has no business to interfere in the investigations of the CCB. *States that without Exhibit 1, there can be no valid investigation and no valid prosecution, which means that Count 1 fails. *States that the prosecution failed to even provide the register which was in the custody of the CCB Chairman. *States that Counts 2,3,4,5 & 6 are invalid as they failed to disclose essential elements of the offence or making false declaration.
Refers the Tribunal to Saraki’s case. *States that it is mandatory for the Prosecution to prove that there is verification of Exhibits 2 & 3, by the persons so authorized by the CCB . States that absence of same means that there can be no allegation of false declaration or omission. *After verification by the authorized person, he/she must also investigate the statement in the declaration form and thereafter, find that there is a falsification. *And such a person must come forward to give evidence. *Cites the case of Nwaugwu v Akimgba (2013) 11 NWLR (Pt 1364) 117 at P. 137 where it was held by the Supreme Court that the Court has the power to expunge an inadmissible Evidence at any time.
The Tribunal commended the submissions of Awomolo SAN stating that it was exceptional.
Aliyu Umar SAN adopts arguments contained in the FWA dated 28 March 2019 and filed on 29 March 2019. *Urges the Tribunal to be guided by Section 303 of the ACJA 2015 (reads same out). submits that the internal memo of the CCB cannot override the provisions of Section 174 of the Constitution which gives the Attorney General the power to institute this matter . *States that the burden shifts to the Defence to prove that they did not follow due process.
States that they produced witnesses that they needed, and the Defence cannot dictate the number of witnesses to be called by them.
States that the Petitioner was listed as one of the prosecution witnesses, but was later not used. Reminds the Tribunal that he offered the remaining witnesses to the Defence who refused same, saying that he didn’t need them. States that the Defence cannot now complain that the Petitioner is non existent.
States that PW3 said that it was only the bank statement that was computer generated.
States that the CCB wrote a letter requesting the bank documents, and same were sent to them
States that the fact that the same documents were sent to the EFCC was of no consequence.
States that Count 1 bothers on non-declaration of assets and not false declaration.
States that the Defendant failed to declare his assets during his term of office as a Supreme court Justice, until 2016 when he became the Chief Justice of Nigeria.
States that the Defendant made a statement admitting that he forgot to declare his assets.
States that by Section 306 of the ACJA, and the Evidence adduced, there is a strong case against the Defendant and it would be in the best interest of the Defence to enter a defence or rely on the Prosecution’s case.
REPLY ON POINT OF LAW
Firstly, the Standard Operational Procedure is not an internal memo, it is a law established by Section 160 of the constitution.*There is evidence on record that the CCB did not comply with the law. *States that there is no offence such as non declaration known to law.
States that even if there was, there ought to still be verification.
Aliyu Umar objects, stating that the Defence is raising fresh issues
Tribunal states that they would be going on a recess.
States that they will be back by 01:30pm with a Ruling on the issue of “NO CASE SUBMISSION.
Concluding part to be continued.
***Submitted by: Sylvester Udemezue
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