By Jide Ajani
After almost two years of legal rigmarole at the Code of Conduct Tribunal, CCT, the case, with Charge Number CCT/ABUJ/01/2015, between Federal Republic of Nigeria (complainant), and Dr. Olubukola Abubakar Saraki (defendant), came to an end on Wednesday, June 14, 2017, in what some have described as an anti-climax. Obviously, it appears as though the CCT continues to conduct itself above board because, just as Sunday Vanguard had predicted even before the case was heard in 2011, when the former governor of Lagos State, Asiwaju Bola Ahmed Tinubu, was dragged by the Code of Conduct Bureau, CCB, before the CCT, with a woefully prepared investigation which was thrown into the dustbin of judicial scrutiny, the case brought against Saraki had also been predicted – because it had embarrassing characteristics of turning out to be a fool’s errand – that it would turn out to be a waste of tax payers money. This report will show why the CCB is turning out to be a government agency doomed to keep draining government resources because of its less than professional approach to issues. It is not just because of the Tinubu or Saraki cases at the CCT, but its recent objection to a Standard Operating Procedure, SOP, approved by President Muhammadu Buhari, through the instrumentality of the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, as required by the Constitution.
Had the Code of Conduct Bureau, CCB, sought help, it may have gotten it long ago.
The use of the word ‘may’ is because even the latest attempt at rescuing the agency from its serial shoddiness, through the Standard Operating Procedure, SOP, approved by President Muhammadu Buhari, through the the instrumentality of the Attorney General of the Federation and Minister of Justice, Abubakar Malami, SAN, was rebuffed by top civil servants in the Bureau.
However, in the course of investigating and preparing for this story, it was discovered that the framers of the letters setting up the CCB had their vision for anti-corruption. In fact, the United Nations Charter, African Union Charter, ECOWAS Charter and even the European Union Charter of Anti-Corruption were all predated by Nigeria’s establishment of the CCB and, therefore, suggests that the war on corruption was meant to be taken seriously.
Unfortunately, the CCB has become nothing but a toothless agency.
In the wake of the discharge and acquittal of Senate President Olubukola Abubakar Saraki, commentators and observers on both sides of the divide in Nigeria appear to be passing through the stages of unmet expectations and jubilation. For those with unmet expectations: political grief, anger, rumour-mongering, despair. And on the other side for those jubilating: happiness, relief, joy.
Yet, for the Nigerian polity, there are lessons. First is the need not to needlessly jump into uneducated conclusions about a case in court. Then, there is also the aspect of why every effort to pursue a narrow, selfish, whimsical and vindictive agenda would almost always come to naught, if not soon, later.
For, after two years, Danladi Yakubu Umar, the Chairman of the Code of Conduct Tribunal, CCT, and his colleague on the bench, W. Agwadza Atedze, deserve an apology from the Saraki team as well as other Nigerians who tended to view the activities of the CCT while the trial lasted, from the keyhole of bias and compromise.
There has been political talk about the possibility of a political resolution. If it was ever going to happen, it was long, very long, in coming. But this is not.
However, just as it was in 2011, when the CCB presented Nigerians with a video show which ended with the discharge and acquittal of Asiwaju Bola Tinubu, it chose, this time, to present a series show that has lasted almost two years.
Slammed with an 18-count charge, with 48 exhibits and four witnesses, the stage was set for a trial of significant proportions.
Both Justice Umar and Atedze gave their judgments. In fact, the latter’s explanation was very elaborate and sought to expose the quantum of reasonable doubts embedded in the prosecution’s presentation.
Perhaps, the case may not have lasted that long, had the Saraki legal team not employed the tactics it employed in going back and forth between the CCT, Court of Appeal and the Supreme Court.
The Prosecution, according to the judgment, closed its case on the 4th of May, 2017. The tribunal, upon due consideration of an indication and application by the defendant, ordered both counsel in the case to file written submissions and addresses.
Pursuant to the CCT’s said order, the defendant’s lawyers filed their written address on May 21, 2017, and filed same on May 26, 2017. In response to the defendant’s written address, the prosecution team filed their written address on June 2, 2017, and filed on the same date. The defendant was said to have responded on points of law on June 7, 2017. To prove its case, the prosecution had reportedly called a total number of 4 witnesses and tendered 48 exhibits in the course of trial.
It was then left for the CCT to juxtapose the evidence tendered by the prosecution in this case with the submission of No-Case to answer by the defendant, before delivering a ruling.
The transcript of the judgment highlighted the flaws in the prosecution’s case, before agreeing with the defence, in its No-Case submission.
How to determine a ‘No Case Submission’
“What is a submission of No-case to answer? When can it be made and upheld? Whether at the close of the Prosecution’s case, a prima facie case sufficient enough to call on the Defendant on record to enter his defense has been made.
In doing justice to these questions that will enable me arrive at ultimate justice in this case at this stage, I shall take the issues seriatim;
- What is a Submission of No-case to Answer and when can it be made and upheld?
The statutory posture is found in the stipulations of Section 302 and 303 of the Administration of Criminal Justice Act 2015 which is reproduced hereunder;
“The court may, on its own motion or no application by the defendant, after hearing the evidence for the prosecution, where it considers that the evidence against the defendant or any of several defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the defendant without calling on him or them to enter his or their defence and the defendant shall accordingly be discharged and the court shall then call on the remaining defendant, if any, to enter his defence.
“Where the defendant or his legal practitioner makes a no case submission in accordance with the provisions of this Act, the court shall call on the prosecutor to reply. The defendant or his legal practitioner has the right to reply to any new point of law raised by the prosecutor, after which, the court shall give its ruling.” In considering the application of the defendant under section 303, the court shall in the exercise of its discretion, have regard to the following:
whether an essential element of the offence has been proved; whether there is evidence linking the defendant with the commission of the offence with which he is charged;
whether the evidence so far led is such that no reasonable court or tribunal would convict on it; and any other ground on which the court may find that a prima facie case has not been made out against the defendant for him to be called upon to answer.
“The formulation of the 18 counts charge against the defendant is predicated on the affidavit of PW3 – Mr. Samuel Madojemu – which is attached to the proof of evidence in support of the prosecution’s case.
“Details of the outcome of investigations as highlighted in the affidavit by me were based upon information given to me by members of the team”.
* I find and hold that this afore-stated testimony is an affliction, an epidemic that bedeviled the entirety of the prosecution’s case. It connotes that PW3 had no first hand knowledge of all he said and documents tendered. This is hearsay evidence, and it violates sections 37, 38 and 126 of the Evidence Act 2011 which are reproduced hereunder:
- Hearsay means a statement
(a) oral or written made otherwise than by a witness in a proceeding;
Or (b) contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
- Hearsay evidence is not admissible except as provided in this Part or by or under any Hearsay rule other provision of this or any other Act.
- Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to –
(a) a fact which could be seen, it must be the evidence of a witness who says he saw that fact:
(b) to a fact which could be heard, it must be the evidence of a witness who says he heard that fact:
(c) to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
(d) if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:
Provided that the opinions of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the court regards as unreasonable.
The affidavit evidence of PW3 is manifestly inadmissible in law and I so hold. Turning and making reference to ‘the team’ referred to in the evidence of PW3, ‘the team’ so constituted is unknown to law and never contemplated by the Act under which the defendant is being tried. ‘The team’ is made up of CCB, the DSS, and EFCC according to the testimony of PW1 in the course of cross-examination. The combined effect of the inadmissible evidence and the illegality of the team that investigated the defendant is that the charge is incurably defective, has occasioned a miscarriage of justice, and permeates throughout the entire proceedings in this case. Hearsay evidence according to a plethora of judicial authorities is not admissible for the purpose of establishing criminal liability. See the case of Buhari vs Obasanjo (2005) All FWLR (PT 273) 1. It is trite law that the evidence required to establish a crime must be evidence of a witness who saw or heard or took part in the transaction upon which he was giving evidence.
Burden of Proof
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty: provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts.” The burden of proof is not upon the defendant to prove his innocence, it simply inures in favour of the defendant. It will be fundamentally erroneous for this Tribunal to call upon the defendant to prove his innocence. This burden has been held to be static. See Abdullahi vs The State (2008) LPELR -28 (SC) where Onnoghen JSC held:
It is settled law that in a criminal trial, the onus remains with the prosecution to prove or establish the charge against the accused person(s) beyond reasonable doubt and that the onus or burden of proof never changes/shifts.”
7 Points of DEFENCE the prosecution could not assail
“In his reply on points of law dated and filed 07th June 2017, the defendant made reference to seven issues from paragraph 2.30 on page 2 to paragraph 3.18 on page 7.
The seven issues are:
The Prosecution failed to respond to the submission that the Asset Declarations of the Defendant were duly verified and stamped.
The Prosecution failed to respond to the argument that all the counts of the information are bad for vagueness.. The submission of the defence that the evidence of PW3 is hearsay. The contention and submission of the Defendant that the several amendments were made in bad faith and not in the interest of justice and that each amendment constituted a gross contradiction of that which was amended and made the charge speculative and fishy.
The defendant’s submission that the Prosecution has no authority to add to or subtract from the elements of a charge; The issue of separate legal personality of Tiny Tee Limited. Carlisle Properties Limited, Vitti Oil, amongst others;
The Defendant’s contention and submission that the Prosecution failed to respond to the defendant’s contention that there was no evidence to prove the existence of a foreign account.
These issues canvassed in the original written address but now raised in the reply on points of law were not contested by the prosecution. Accordingly, by the principle of state decisis, I find and hold that they are deemed conceded by the prosecution. The cumulative effect therefore is that the evidence relative to those issues is such that no reasonable court or tribunal would convict on it and the contradictions in addition to the evidence of PW1 to PW4 being so discredited on cross-examination, there is no prima facie case made out against the defendant, and will be unsafe to call on the defendant to enter his defence.
It is on this basis and the fuller reasons so ably articulated herein before that I find that the submission of No case to answer by the Defendant has merit and I find and hold that the prosecution has not made out a prima facie case for the defendant to enter his defence”.