Danladi Umar: A judge and his controversies

By Tope Ajayi

The on-going case against Senate President Bukola Saraki, at the Code of Conduct Tribunal (CCT), has, at every point, continued to reveal surprises. The latest one was Thursday’s admission by the Chairman, Mr.  Danladi Yakubu Umar, that the tribunal, under his leadership, erroneously delivered its 2011 verdict that discharged former Lagos State governor, Senator Bola Ahmed Tinubu.

Umar made the  revelation while giving a ruling in a motion filed by Saraki’s lead counsel, Mr. Kanu Agabi, SAN, challenging the jurisdiction of the tribunal on the grounds that the condition for filing the case was not fulfilled. Agabi had contended that, on the basis that Saraki was not given the opportunity to either admit in writing or deny the alleged inconsistencies in the asset declaration form he filled in 2003 when he was Governor of Kwara State, the charges should be quashed as it was done in the Tinubu case.

The CCT Chairman, however, refused Agabi’s prayer, saying the proviso in Section 3 (d) of the CCB and Tribunal Act has been negated by Paragraph 3 (e) of the Third Schedule of the 1999 Constitution. While noting that Tinubu was tried under the same Constitution and law, which are still in operation till date, Umar admitted that the tribunal took an erroneous decision in the earlier case. He said: “The judgment in the Tinubu case was delivered par in curiam. The tribunal has since realized that the decision it made in the case between FRN vs Tinubu was in error and has clearly departed from it”.

Umar’s reversal of himself in the CCT’s verdict in the Tinubu case throws up a series of concerns with strong implications for the reputation of the CCT as a judicial institution of government and, by extension, the integrity and credibility of the Nigerian judicial system in its entirety.

First, what kind of judge admits to giving a judgment in error?  Was he influenced at the time he delivered this judgment? Was he under duress? What has changed in our laws? Was it not the same 1999 Constitution and the Code of Conduct Bureau and Tribunal Act that were used in the trial of Tinubu?

What should even be more worrying is the casual manner with which Umar declared that his ruling five years ago was a mistake. Why, one would ask, did it take Umar five years, and another case to realize that he made a mistake?  Let us assume, for the purpose of argument, that Umar’s ruling in the Tinubu case was truly a mistake as he claimed. Let us also assume that the ruling he gave then was a capital punishment that had been executed. Is this the way he would so cynically dismiss it as an error just to fulfill a current political expediency?

Since the ruling, last Thursday, several lawyers, who were outraged by the ruling, have roundly condemned it. One legal opinion is that the CCT is not competent to reverse itself on its earlier judgment as only a court of higher jurisdiction can reverse a ruling by the CCT. In this case, only the Appeal Court, in the first instance, can reverse or nullify a flawed judgment by the CCT not the CCT itself. It is only the Supreme Court, being an apex court of the land, that has the power to reverse itself.

Legal interpretation

Umar held that the failure of the Code of Conduct Bureau to meet certain conditions precedent before putting Saraki on trial was not weighty enough to discharge him and strike out the trial. He said Section 3(d) of the Code of Conduct Tribunal Act, which made it a requirement for any defendant to be invited for confirmation or denial of discrepancies in the assets form, had been overtaken by the provision of Section 3 (e) of the 1999 Constitution.

According to the CCT Chair, Section 3 (e) of the 1999 Constitution had rendered the condition precedent contained in the CCB Act unconstitutional, null and void because the provisions of the CCB Act were inconsistent with the Constitution. Umar further said that the failure of the CCB to invite the defendant in the instant case had not ousted the jurisdiction of the tribunal. Certainly, these are very contentious claims at best.

Subjecting Umar’s ruling on the Saraki trial to rigorous legal interpretation reveals that once again, the CCT Chair is treading a new path of error just as he did in the Tinubu trial. It has been pointed out that his recourse to Paragraph 3 (e), of the Third Paragraph of the 1999 Constitution, as the tribunal’s basis for not adhering to Section 3 (D) of the CCT Act, smacks of ignorance or mischief. It is argued that if the judge had gone further down to Section 3 (g), he would have found that there is nothing in the part of the Constitution that he was citing that contradicts Section 3(d) of the CCBT Act.

Paragraph 3 (e) of the Constitution’s Third Schedule states that the Bureau shall have power to “receive complaints about non-compliance with or breach of the provisions of the Code of Conduct or any law in relation thereto, investigate the complaint and, where appropriate, refer such matters to the Code of Conduct Tribunal.” Paragraph 3 (g) however states that the Bureau shall “carry out such other functions as may be conferred upon it by the National Assembly.”

With an Act being a piece of legislation enacted by the National Assembly, the Code of Conduct Bureau and Tribunal Act, in Section 3, clearly spells out in detail the functions of the CCB/CCT to receive assets declarations by public officers; examine such assets and ensure that they comply with the law; retain custody of such assets declarations; and most importantly: “receive complaints about non-compliance with or breach of this Act and where the Bureau considers it necessary to do so, refer such complaints to the Code of Conduct Tribunal established by section 20 of this Act in accordance with the provisions of sections 20 to 25 of this Act.” The last clause is also premised on the fact that “provided that if the person concerned makes a written admission of such breach or non compliance, no reference to the Tribunal shall be necessary.” What this means is that the Act resulted from the powers granted the National Assembly by the same constitution and therefore both are not contradictory but complementary.

Regardless of the legal arguments, which would continue to rage in the days ahead, what was crystal clear from the ruling on Thursday was that Umar stumbled, stuttered and fumbled through the judgment as if he was seeing it for the first time. The way he  stuttered through the ruling could only evoke another sad occasion during the last general elections when the returning officer for the elections in Rivers State, a vice chancellor, could not read the results even though he claimed to have written it himself. No surprise that the election was eventually cancelled.

Grave concerns

Again, if indeed the issues highlighted here are to be given serious considerations, they pose grave concerns on the credibility of the CCT and why such an institution vested with far-reaching powers should not be subjected to the whims and caprices of just anybody. You certainly cannot speak clearly if you have food in your mouth, or a sword dangling on your neck.

It should be noted that the powers of the tribunal are so enormous that they hardly give room for errors, deliberate, contrived or otherwise. For example, once a person is successfully convicted by the CCT, that person has to fully serve his punishment as the prerogative of mercy or any power of pardon does not apply to convictions by the tribunal. Moreover, the powers of the Attorney General to enter a plea of nolle prosequi to discontinue any criminal case at any stage does not operate in cases before the CCT. All these powers make the need to preserve and protect the integrity, character and credibility of the CCT even more imperative.

That the CCT Chairman admitted error, especially the manner he did, leaves much to be desired.

*Ajayi is a public affairs analyst

 


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