The Senate President, Senator Bukola Saraki, has filed an appeal challenging the ruling of the Code of Conduct Tribunal which ordered the Inspector-General of Police,
Mr Solomon Arase, to arrest and produce him before the tribunal on Monday, September 21.
The Tribunal sitting in Abuja, yesterday, ordered the arrest of the Senate President, following his refusal to appear in court to face a 13-count criminal charge that was preferred against him by the federal government.
The tribunal which is headed by Justice Danladi Umar, directed the Inspector General of Police, IGP, Mr. Solomon Arase and other relevant security agencies in the country to arrest the Senate President and produce him in court on Monday for arraignment.
Saraki was in the charge before the CCT, marked ABT/01/15 and dated September 11, 2015, alleged to have falsely declared his assets, contrary to the constitutional requirement.
Saraki who was billed for arraignment yesterday, refused to appear before the tribunal, even though he sent his team of lawyers, led by a former President of the Nigerian Bar Association, NBA, Mr. J.B. Daudu, SAN, to file memorandum of conditional appearance on his behalf.
Irked by Saraki’s absence at the tribunal for the commencement of his prosecution yesterday, the Ministry of Justice, prayed the Justice Umar-led panel to order for his arrest.
Moving the oral application for a bench warrant to be issued against Saraki yesterday, a deputy director in the office of the Attorney General of the Federation, Mr. M.S. Hassan, maintained that the accused person, “cannot sit in the comfort of his chamber and object to his trial in absentia”.
The prosecution further contended that Justice Mohammed lacked the powers to summon the CCT and CCB chairmen, even as it accused Saraki of engaging in “forum shopping” in a desperate bid to scuttle his trial.
Hassan argued that going by the provision of section 396 of the Administration of Criminal Justice Act, 2015, Saraki, could only object to the trial after he had entered his plea to the charge against him.
“My lords, the provision of this section is clear to the effect that any objection to a charge shall be raised after plea, which means that the accused person must be in court and the charge read to him before any objection.
“Moreover, paragraph 17 of the Third Schedule to the 1999 constitution, as amended, empowers this tribunal to try the accused person”.
The prosecuting counsel described Saraki’s contention that he cannot be prosecuted in the absence of a substantive Attorney General of the Federation, AGF, as “a clear misconception of the law”.
He argued that the power to initiate criminal proceeding before any court or tribunal is not limited to the AGF alone, adding that section 175 of the constitution provides that any officer in the office of the AGF is qualified to initiate criminal proceeding in any court of law or tribunal in Nigeria, except the court martial.
Placing reliance on decided case law in FRN vs Adeyemi, 2010, 10-NWLR, and section 2 & 4 of the Law Officers Act, the prosecution stres-sed that in the absence of a substantive AGF, the Solicitor General of the Federation could perform all the duties that were imposed by the law on the office of the AGF.
“We also rely on section 24(3) of the CCB &Tribunal Act to submit that the charge against the accused person is proper and competent.
“The Federal High Court lacks the power to compel this court before it. They are both superior courts of record with coordinate jurisdiction, and are both recognised by the constitution. Appeals from this court go straight to the Court of Appeal.
“The Federal High Court does not have supervisory jurisdiction over this court. It only has power over inferior tribunals, not a court of competent jurisdiction as this court.
“The accused person cannot stop us from performing our constitutional duties. He cannot sit in the comfort of his chamber and say my lawyer will do it for me. This is a criminal case, not a civil matter.
“We therefore urge my lords to issue a bench warrant for the arrest of the accused person”, the prosecutor added.
Ruling on the application , the tribunal while upholding FG’s argument, stressed that Saraki, having sworn to protect the constitution, ought to have shown respect to the tribunal by appearing before it today.
“I have taken notice of the fact that there is no incumbent AGF in office, but that does not preclude any officer from the Ministry of Justice from initiating this criminal proceeding “, Justice Umar held.
The tribunal noted that whereas the AGF has the sole right to exercise the power of ‘nolle prosequi’ (power to terminate charge), it said that such exclusive right does not include the initiation of criminal trial.
It further observed that Saraki was duly served with the charge and a notice to appear in court yesterday, on September 16.
“This tribunal is established under section 15(1) of the Fifth Schedule to the 1999 constitution as a special vehicle vested with the powers to promote probity and accountability in the public service.
“This tribunal has coordinate jurisdiction with the FHC. In view of section 306 of the Administration of Criminal Justice Act, this tribunal cannot accede to the request to halt this proceeding. A superior court of record cannot issue an order prohibiting or restraining the proceeding of another court of equal status.
“This tribunal has called the defendant to come before it and stand trial. As a senior citizen he is expected to show respect to constitutional provisions which he has sworn to protect.
“The tribunal hereby orders the IGP or other relevant security agencies to arrest and produce the defendant for prosecution. In view of the foregoing, the tribunal orders a bench warrant to be issued against the defendant”, the court ruled.
Spirited effort by Saraki’s lawyers to persuade the tribunal to consider the position of the accused person as the Senate President and stay the execution of the bench warrant against him on the undertaking that he will be available for trial on Monday, failed flat yesterday.
But in a swift reaction, Saraki, yesterday, rushed to the Court of Appeal in Abuja to challenge the powers of the CCT to try him, as well as the refusal of the tribunal panel to discharge the bench warrant for his arrest.
In his ground of appeal, Saraki, insisted that the trial tribunal erred in law and also acted without jurisdiction by countenancing and assuming jurisdiction over his criminal trial/ prosecution for a charge that is being challenged at the FHC Abuja in suit No FHC/ABJ/CS/775/2015, between him and the Ministry of Justice and 3 Ors.
He argued that the tribunal acted in disobedience to the order the FHC made on Thursday. Listing the particulars of error by the tribunal, Saraki, told the appellate court that “as at the time the lower tribunal overruled the appellant’s application to discharge the order for bench warrant for his arrest by the respondent, there existed an order of the FHC, Abuja, dated September 17, which was served in the lower tribunal, who were party to the suit”.
It was his argument that having filed an application challenging the jurisdiction of the tribunal to adjudicate on the charge before it, he needed not to be present in court yesterday.
Saraki also argued that the tribunal did not avert its mind to the decided case laws in Doma vs Ogiri, 1997, 1-NWLR, and that of Ojukwu vs Governor of Lagos state, 1986, 3-NWLR.
He therefore sought an order of the appeal court setting aside the order of arrest that was issued against him by the tribunal.
The embattled Senate President had in a13 -paragraphed affidavit that was deposed to by one Efut Okoi, told the high court on Thursday that his trial was politically motivated.
He told the court that since May 29 when the life span of the administration of former President Goodluck Jonathan expired, the administration of President Muhammadu Buhari had yet to appoint an AGF.
“That upon assumption of office, President Mu hammadu Buhari has made several appointments ranging from the Secretary to the Government of the Federation to Senior Special Advisers and Special Assistants.
“That I also know of fact that President Muhammadu Buhari is yet to appoint Ministers and other key Executive Officials.
“That is is also a fact that the Federal Ministry of Justice does not have an Attorney General/ Ministry of Justice yet”.
He argued that on September 14 when the 4th Defendant/Respondent (M.S. Hassan) took steps to initiate the charge before the CCT, he was never directed by any AGF to do so, since there exists no substantive AGF.
“That the charge pending before the CCT is predicated upon the falsehood that the plaintiff/applicant did not declare his assets in 2003, 2006 and 2011.
“That the applicant has consistently declared his assets as required by law at every point before resuming any political office and that of 2015 was not exception.
“That the 2nd defendant/Respondent had investigated the assets and ascertained the claims made by the plaintiff”.
He said that he submitted his asset declaration form in 2007, 2011 and 2015, saying “the present charge was initiated due to external influence and undue interference on the CCT”.
He told the court that the CCB never wrote to him to complain of any inconsistency in his asset declaration form.
Saraki averred that the charge was “purely a malicious and politically motivated prosecution aimed at undermining the person and office of the Senate President.
“That it is a fact that this charge pending before the CCT is a case of desperation to intimidate the applicant due to his recent stance on national issues.
“That the applicant had suffered series of harassment and intimidation in the hands of the officials of the 1st defendant”, he added.
Saraki was accused by the Code of Conduct Bureau of deliberately manipulating the assets declaration form that he filed prior to his assumption of office as the Senate President, by making anticipatory declaration of assets.
The offence was said to have been committed in 2003 while Saraki held sway as a governor.
Aside allegation that he owned and operated foreign bank accounts while being a public officer, Saraki is expected to explain before the CCT how he acquired some assets which the federal government believes were beyond his legitimate earnings.
When his case was called up yesterday, one of his lawyers, Mr. Mahmud Magaji, SAN, notified the tribunal about the ruling by Justice Ahmed Mohammed of the Abuja Division of the Federal High Court, which had on Thursday, summoned the Ministry of Justice over the charge against Saraki.
Justice Mohammed had after he heard an ex-parte application by Saraki, also summoned the Chairman of the tribunal, Justice Umar and that of the Code of Conduct Bureau, CCB, Mr. Sam Saba, to appear before him on Monday.
They were specifically asked to appear to show cause why an interim order of injunction stopping Saraki’s trial should not be granted.
In the charge, Saraki was accused of breaching section 2 of the CCB and Tribunal Act, an offence punishable under section 23(2) of the Act and paragraph 9 of the said Fifth Schedule of the 1999 Constitution, as amended.
FG alleged that Saraki claimed that he owned and acquired No 15A and 15B Mc Donald, Ikoyi, Lagos, through his company, Carlisle Properties Limited in 2000, when the said property was actually sold by the Implementation Committee of the Federal Government landed properties in 2006 to his companies, Tiny Tee Limited and Vitti Oil Limited for the aggregate sum of N396, 150, 000, 00.
He was alleged to have made false declaration on or about June 3, 2011, by refusing to declare plot 2A Glover Road, Ikoyi, Lagos, which he acquired between 2007 and 2008 through his company from the Central Bank of Nigeria for a total sum of N325, 000, 000, 00.
Similarly, Saraki was said to have refused to declare No1 Tagnus street, Maitama, Abuja, which he claimed to have acquired in November 1996 from one David Baba Akawu.
Some of his alleged offence while in office as governor, which are said to be punishable under section 15(1) and (2) of the CCB and Tribunal Act, Cap C15, Laws of the Federation of Nigeria, 2004, were allegedly committed between October 2006 and May 2007.
His actions were classified as a gross violation of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria 1999, as amended.
“The Federal High Court on Thursday, September 17, 2015, therefore ordered that the all parties in the case should appear before it on Monday, September 21, 2015. The implication of this ruling by a Court of competent jurisdiction is that the sitting today has been overtaken by event. It is for this reason that Dr. Saraki chose to go about with his normal official schedule.
“Today at the Tribunal, Counsel to the Senate President, Mr. M. A. Mahmud (SAN), raised a motion stating that there is a pending constitutional matter before the Federal High Court to be decided on Monday and that the Tribunal should hold the trial until the constitutional matter is disposed of.
“We are however dismayed that the Tribunal chose to disregard the order of the Federal High Court and the motion to suspend hearing till Monday when all parties are expected to argue their positions on the constitutional matter.
“It is also a surprise to us that despite the application by the lead counsel to the Senate President that he will produce Dr. Saraki on Monday and the personality of the person involved as the Number three man in the country, the Tribunal insisted on issuing a warrant of arrest as if its intention is simply to embarrass Dr. Saraki. We are not unmindful of the fact that the Tribunal is acting under political influence and external pressure. This is dangerous to our democracy.
“The conduct of the Tribunal today left nobody in doubt that it cannot do justice on the matter before it. It is also clear that today’s decision is an abuse of the rule of law which portends danger to our judicial system. The Tribunal has equally set a bad precedent in the way and manner it conducted itself during the proceedings.
“We want to emphasise the fact that this is not part of any war against corruption but using state institutions to fight political opponents and seeking to achieve through the back door what some people cannot get through democratic process.
“We need to caution here that in a desperate bid to settle political scores and nail imaginary enemies, we should not destroy our democratic institutions and heat the polity for selfish reasons. Let us all learn from history.
“The Senate President is a law abiding citizen who will not do anything to undermine the judicial process and authority. However, Dr. Saraki will always act to protect his fundamental human rights.
“The Senate President is a law abiding citizen and his absence from the Tribunal today was based on the legal advice he received from his counsel that the Tribunal will respect the decision of the Federal High Court which is obviously a superior court of records. Also, he relied on a letter from the Chief Justice of Nigeria directed to the Chairman of the Tribunal last May that they are not judicial officers and are inferior to the regular High Court as defined by the law and that they take official oath not judicial oath.
“We will like to state therefore that Dr. Saraki will not do anything to undermine the judicial process and authority but he will always act to protect his fundamental human rights.”