Saraki vs CCT: Issues before the Supreme Court

As February 5, 2016 date set aside by the Supreme Court for judgment in the suit filed by the Senate President, Dr Bukola Saraki approaches, the key issues for determination which include the constitutionality of the CCT continue to generate discussions in the political circle.

WHEN the Economic and Financial Crimes Commission (EFCC) started the trial of the President of the Senate, Dr Abubakar Bukola Saraki before the Code of Conduct Tribunal on September 18, 2015, over allegations of under-declaration of his assets as the Governor of Kwara State in 2003, many people expressed the opinion that it was going to be a fierce legal battle that would span various jurisdictions and courtrooms. And indeed, with the application filed by Dr Saraki before the Supreme Court after an unfavourable outing at the Court of Appeal, they have been proved right.

From the period that the EFCC dragged him before the Code of Conduct Tribunal sitting in Abuja, on a 13-count charge bordering on allegations of false declaration of assets, the battle had traversed different court rooms of diverse jurisdictions for adjudications. Indeed, incidents trailing the high profile matter has made it a legal tussle with a different dimension and new events not known to law; from the large number of almost 30 defense lawyers, to the large entourage of escorts, various attempts to stop the trial through applications to courts of higher jurisdictions and a staged walkout that thwarted continuation of the trial by defense lawyers at the CCT.

The defence had filed a matter before the Court of Appeal to stop the trial at the CCT and on October 21, 2015, the Justice Danladi Umar led tribunal had to adjourn till November 5, 2015, to enable the appellate court give a ruling on Saraki’s application. This effort failed in a two-to-one split decision of the Court of Appeal in Abuja which on October 30, 2015 dismissed Saraki’s appeal against the competence of the tribunal and the charges against him. And consequently, the Senate President took the matter to the next level; the Supreme Court which is the last point in this legal battle. This move he stated was not only to challenge the judgment of the Court of Appeal on his case at the Code of Conduct Tribunal (CCT) but to also test the positions of the Court of Appeal at the higher court to determine if it will stand the test of time.

With the fierce battle now at the Supreme Court and judgment day drawing near rapidly, there is anticipation and tension in some quarters on which way the decision of the Supreme Court would tend in regards to pending issues bordering on the legality or otherwise of the criminal trial at the Code of Conduct Tribunal (CCT) and issues of jurisdiction. The anticipation and interest in the judgment of the Apex court is due to the power it wields and the fact that whatever decision it arrives at cannot be changed by any other court due to its jurisprudence and importance as the last resort in the judiciary.

The matter before the Supreme Court consequently throws up some questions on which various provisions of the law can be used to defend or contradict. The main issues that crop up in this adjudication which the panel of Justices of the court must determine to put the matter to rest finally include the interpretation of paragraph 15 (1) of the fifth schedule of the 1999 constitution which deals with composition of the tribunal.

A major factor is also the determination of whether the CCT is a court of criminal jurisdiction and giving interpretation to the issue of whether a lawyer in the office of the Attorney General can file charges at the tribunal without the express authorization of the Attorney General as contained in Section 174 (1) of the 1999 constitution, as amended. Further, in view of the magnitude of constitutional issues being raised in the matter, the Supreme Court has decided to empanel a full court of seven justices, based on a request by Saraki’s counsel, J. B. Daudu (SAN).

What does the law say and what is the basis of the argument? Paragraph 15 (1) of the fifth schedule of the constitution as amended provides that the CCT shall consist of a Chairman and two members; “there shall be established a tribunal to be known as the Code of Conduct Tribunal which shall consist of a Chairman and two other persons”. Section 20 (2) of the Code of Conduct Bureau and tribunal Act, in respect of the number of persons making up the tribunal was emphatic by using “consist of” not “quorum.” Thus, the split judgment of two to one of the appellate court on October 30, 2015, which forms the subject of appeal, needs to be considered. The majority judgment as delivered by Justices Moore Adumein and Mohammed Mustapha dismissed the appeal and held that the above provisions merely provide for the establishment of the tribunal and its composition. “There is no provision on both the constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Code of Conduct Bureau and Tribunal Act, 2004, specifying the minimum number of members of the Tribunal who must be present before the tribunal can validly undertake or conduct its judicial business, proceedings or sittings. Therefore there is a lacuna in the constitution and the Act. In a situation like this, the interpretation Act becomes a very useful piece of legislative ingenuity to fill the gap or lacuna”.

This throws up the importance of Section 28 of the interpretation Act which states that; “Notwithstanding anything contained in any Act or any other enactment, the quorum of any tribunal, commission of inquiry (including any appeal tribunal established for the purpose of hearing any appeal arising there from) shall not be less than two (including the chairman): provided that the chairman and the member shall be present at every sitting of the tribunal, commission of inquiry throughout the duration of the trial or hearing”.

According to the Justices, Section 28 is applicable to this case, meaning, the tribunal made up of chairman and one member is properly constituted as decided by the appellate court. But in a dissenting judgment, Justice Joseph Ekanem JCA, did not align with the position of his colleagues, rather he raised a point, “Speaking for myself, it is my view that the Code of Conduct Tribunal (CCT) is not a court strictly so speaking and so it cannot be described as a ‘Court of criminal jurisdiction. It is my view that it is not a superior court of record as envisaged in Section 6 (3) and (5)(a)-(i) of the constitution of Nigeria 1999 (as amended). It is not included in sub – section 5 (a)-(i) as one of the superior courts of records in Nigeria.”

Some legal experts also disagreed with the submissions in the lead judgment of the Appeal Court; some stated that the Interpretation Act cannot supersede the provisions of the constitution, particularly since the constitution as enunciated in paragraph 15 (1) of the fifth schedule used the word “shall”, which signifies that it is mandatory for the tribunal to be composed of three members as stated in the constitution. According to them, if the Chairman and the second member have dissenting view on an issue, what will the tribunal do; adding that that those that put the constitution together must have thought of this when they insisted the tribunal must have three members.

There was also no meeting point among lawyers. Some aligned with the Court of appeal, while others averred the learned judges did nott interpret the law well. In his analysis of the trial, a retired justice of the Supreme Court, Justice A.G Karibi-Whyte said it appears from the enabling law that the jurisdiction of the Code of Conduct Tribunal is confined and limited to the conduct clearly outlined in paragraphs 1 – 13 of the Fifth Schedule. According to him, “the conduct proscribed has been stated in considerable detail and appears to be exhaustive. These are the only powers it can legally and lawfully exercise.” He added: “It is pertinent to observe that the laws which enable the CCT to try persons who have contravened the provisions of the Code have carefully avoided the use of the expression criminal to describe the conduct so punished. It does not contemplate any other conduct. Epressio unius est exclusio alterius. Rather, it provides in paragraph 18(3) that the sanctions in paragraph 18 (2) may be imposed, without prejudice to the penalties in any law where the conduct is also a criminal offence. Its jurisdiction is limited to the subject matter listed therein and a prescribed by the National Assembly. The Code of Conduct Tribunal has not been vested with exercise of criminal jurisdiction even by implication of the scope allowed in the sanction it can impose.”

He added:”Where a court does not have jurisdiction, there is nothing before it to adjudicate. The limits of its authority as in this case may be prescribed, as it has been prescribed by stature under which the Court or Tribunal is created – concisely stated jurisdiction means the authority which a Court has to decide matters contested before it, or to take cognizance of matters presented in a formal way for its decision, see National Bank v. Shoyoye (1977) 5SC.18. The CCT in this case is not properly constituted to try any case whatsoever. Its effort if allowed to continue will result in a nullity. It should discontinue and wait for the decision of the Court of Appeal on the issue of Jurisdiction. CCT should not, as it cannot as an inferior court continue proceedings whilst its jurisdiction was being challenged. The CCT is not vested with the exercise of criminal jurisdiction.”

Another lawyer, Olukayode Majekodunmi, also aligned himself with the minority judgment of Court of Appeal. He said:“Nigerians should divulge themselves from personalities behind the case in court and examine the matter purely based on position of law.” Their views suffered some setback though, as a senior lawyer, Johnson O. Esezoobo argued that granting a stay of proceeding in an interlocutory motion filed by the Senate president by the apex court gave much to discuss as the decision of the apex court was contrary to the provisions of the Administration of Criminal Justice Act 2015, Section 306 of which is in context, adding that it “holds special significance in the fight against corruption in Nigeria. The Act represents the expression of the legislative and executive concern over delay in the administration of justice with its frustrating effect on the efforts at curbing the vice. Following its decision in Savannah Bank Ltd v Pan Atlantic Shipping and Transport Agencies Ltd (1987) 1 S.C. 198 at 296 “A law is a result of the deliberation of all the arms of government…”, the apex Court ought to be wary of taking any position that would present it as the cross-roads to good and effective administration of justice. It is in this respect that the position taken by the apex Court in the saga will assist a public assessment of where the problem lays; the politician, legislature, the executive or the judiciary. The Constitution must be made to develop to get the law and society beyond rural level.”

For lawyer and activist, Ikechukwu Ikeji, it is a matter that can only be cleared by the Supreme Court, as he described the situation as dicey. “The Interpretation Act speaks of two being a quorum while the law establishing the CCT is silent on quorum. So, this is a dicey situation as the law used the word “composition” to provide for three CCT members. The Supreme Court would have to clear the air here.”

These divergent views constitute a reason why so many are interested in the judgment of the Supreme Court and as February 5, draws near, Nigerians can only await with bated breath, a judgment that is expected to create further disagreements on points of law whichever stand it takes.