*Charge constitute abuse of judicial process — Court
By Emmanuel Aziken, Political Editor & Ikechukwu Nnochiri
Senator Ita Enang, the presidential liaison officer to the Senate, was like a fish out of water, penultimate Saturday, at the opening of the Senate Retreat on Constitution Review at Eko Hotel, Lagos. A man who, in ordinary times, would have flow with his former colleagues, bantering and teasing one another, stayed in one corner of the Expo Hall of Eko Hotel.
Enang’s difficulties were understandable.
Not only is he President Muhammadu Buhari’s pointsman in the Senate, he is also a prosecution witness in the forgery case filed by the Attorney General of the Federation against the two presiding officers of the Senate.
With Senate President Bukola Saraki and his deputy, Senator Ike Ekweremadu taking central roles at the opening ceremony, it was understandable that Enang would somewhat fidget.
Fidgety or not, the gloves were formally put off, last week, after Saraki and Ekweremadu were arraigned at a Federal High Court on a two-count charge of forgery. Arraigned with them were the immediate past Clerk of the National Assembly, Alhaji Salisu Maikasuwa, and his deputy, Mr. Ben Efeturie.
The worsening relationship between the Presidency and the legislative branches of government aborted the planned breaking of fast between the President and principal officials of the legislature. The breaking of fast was, however, not something some of the legislators had even been keen about. One senior official of the National Assembly narrated how, at a previous interaction called to ponder over the fate of the then controversial 2016 Budget proposals, the President had seemingly talked down on them.
Presidential media assistant, Mallam Garba Shehu, in a reaction to assertions that the face-off had led to the cancellation of the breaking of fast, replied to the contrary, alluding to what he called scheduling difficulties.
Shehu said it was not a “cancellation.”
“Please don’t call it cancellation because nothing like that happened. The President’s Iftar for the leadership of the National Assembly was postponed, to be rescheduled for another date,” he said.
However, by the weekend, the prospects of leaders of the two arms of government sitting down to dine were increasingly unlikely. Not after a Federal High Court on Tuesday sitting in Abuja described the charges against the four men as an abuse of court process.
Justice Gabriel Kolawole described the criminal charges against the quartet as an abuse of court processes on the fact that the Attorney General of the Federation, Abubakar Malami, SAN proceeded to file the charges despite the fact that a civil action on the issue had been lodged since last year before his court.
Senator Gilbert Nnaji had filed the action before Justice Kolawole last year seeking to stop the court to stop the AGF and the Inspector General of Police from going ahead to take action on the police report into the investigation of the issue of the alleged forgery of the Senate Standing Order.
Interestingly, Malami acted as a counsel to the defendants in the suit who were mainly members of the Senate Unity Forum, SUF who were opposed to the election of Senator Saraki as Senate President.
Malami, however, dropped out of the case after he was appointed the AGF.
Justice Kolawole, who said he would have out rightly dismissed the criminal charges if they had been brought before his court, said that the AGF should have used his discretion to stop any charge brought in breach of court process given that a civil action was already in action.
He specifically noted that the AGF, before his appointment, was a counsel in the matter representing Senator Suleiman Hunkuyi, who authored the petition to the police that led to the police report under contention.
Kolawole, in ruling said:
“The Plaintiff’s “motion ex parte” dated 23/6/16 is one that seeks restraining orders against these two (2) constitutional offices created by the constitution. Both are connected with law enforcement and by extension, due administration of justice”.
“The criminal charge dated 10/6/16 attached as Exhibit “B” to the plaintiff’s “motion ex pate” is a criminal process filed on behalf of the 2nd defendant by D.E. Kaswe, Esq. who signed the said charge as a “Principal State Counsel” for “The Honourable Attorney-General of the Federation and Minister of Justice” was listed as one of the leading Senior Advocates of Nigeria who filed the “motion of notice” attached as Exhibit “D” to the plaintiff’s ex parte application and it was an application by which Senator Suleiman Othman Hunkuyi, who until the learned Attorney-General of the Federation was appointed as the Minister of Justice, was his erstwhile client”.
“In the “list of witnesses and their addresses”, Senator Suleiman Othman Hunkuyi, who wrote the “Petition” to the 1st defendant on 30/6/15 – as the Secretary of “The Unity Forum” in the Senate is listed as No. 1 of the witnesses to be called by the state on the criminal charge dated 10/6/16 which was filed whilst the instant proceedings are still pending”.
“When I read the provisions of section 174(1) – (3) of the constitution, as amended, I am not in any doubt, that by section (174(2) of the constitution, that D.E. Kaswe, Esq. who signed the criminal charge in exhibit “b” as “principal state counsel” did so on the authority of the 2nd defendant”.
“Having regard to these issues, I asked myself what is the appropriate order this court can make given these peculiar facts of the involvement of the current occupant of the office created by Section 150(1) of the constitution – who “doubled” as it were, as one of the leading Counsels to the “Petitioner”, Senator Suleiman Othman Hunkuyi and fortuitously, was appointed by the President as the Minister of Justice?”
“Regardless of whichever way it is looked at, I will still hold the view, that constitutional powers conferred on all persons and authorities, including arms and agencies of government are required to be exercised in good faith and where as in this instance, it relates to the institution of criminal proceedings, it must be seen to have been properly exercised strictly in “public interest”.
“But, having regard to the peculiar facts which I have analyzed, the said criminal charge dated 10/6/16 and attached as exhibit “B” to the Plaintiff’s “motion ex parte” dated 23/6/16, given the course of these proceedings as I had in detail, highlighted, can only be seen as one that constitutes an “abuse of legal process” to use the very words in section 174(3) of the constitution”.
“In all of these facts and issues, having regard to the pendency of this suit in which the defendants have both filed processes, one question that did not cease to resonate in my thoughts is why this “desperate haste” to prefer the criminal indictments in exhibit “B” the investigation of which is at the heart of this suit and of the parallel suit in exhibit “E”, and which indictments, by law are not time barred as the substantive suit before this court, had by consent of both the Plaintiff’s Counsel and the 1st defendant’s Counsel, been scheduled for 6/7/16 for hearing”.
“It is the event of the steps taken by the defendants in utter defiance of this pending suit, that in my view, unobtrusively betrayed the possible genuineness of the defendants’ intention and of the 2nd defendant’s motives as steps taken which are beyond serving the “public interest” by the commencement of a criminal trial in the FCT High Court in order to subvert the pending suits in the Federal High Court one of which has been fixed for 6/7/16″.
“By the extant Supreme Court’s decisions, once a court comes to the decision that a particular process before it constitutes abuse of judicial or legal process, the appropriate orders it can make, is to put an end to the continuation of such proceeding”.
“Do I proceed and make such order? I probably would have done so if the criminal charge dated 10/6/16 was pending before this court”.
“But as it is, it is pending before my learned brother, the Hon. Justice Yusuf Halilu of the FCT High court, which is a court of co-ordinate jurisdiction and who has become seised of the charge as at 21/6/16 when he adjourned it to 27/6/16 for the arraignment of the defendants listed in Exhibit “B” attached to the Plaintiff’s “Motion Ex parte”.
The prospects of a quick resolution of the suit against Saraki and Ekweremadu were not helped by the sharp exchange of words that followed the arraignment of the four men on Monday. Saraki, in his sharpest criticism of the President, claimed that a cabal had hijacked power from Buhari. Ekweremadu also alleged a persecution against him on account of his position as the highest political office holder in the Peoples Democratic Party, PDP, even as he insinuated a quiet marginalisation of his section of the country where Buhari received the fewest votes in last year’s presidential election.
The Deputy Senate President further rattled the Presidency when he circulated his issues with the Federal Government and his trial to the international community, putting Buhari’s increasing aptitude for international acclaim in jeopardy.
Apparently harried by the assertions of the two men, the Presidency replied the two top lawmakers, on Tuesday, through the Secretary to the Government of the Federation, SGF, Mr. Babachir David Lawal, popularly referred to as BD Lawal within the Buhari inner caucus. The SGF charged the two men to resign, a tone that some stakeholders had claimed had all along been the desire of the Presidency.
“The complaint leading to the forgery investigation was reported to the Police by some aggrieved Senators who specifically accused certain persons. It is not the Senate of the Federal Republic of Nigeria that is involved and not the House of Representatives,” Lawal said in a statement.
His suggestion that Saraki and Ekweremadu were specifically accused of forging the Senate rules has been pooh-poohed by the two men who have repeatedly claimed that the petition to the police and the police report on the investigation did not mention any of them.
That claim apparently took further importance as the trial commenced last Monday when it was discovered that the police report on the investigation was not included in the court processes. Associates of the men under trial implied that the report could not be used to successfully prosecute the men who are claiming that the application of judicial sanction on the internal processes of the Senate was a violation of the principle of separation of power.
Meanwhile, the claim that the Senate President ruled the disputed Standing Order as authentic, on June 24, 2015, may have also complicated the matter as there is no record of any senator disputing the ruling of Saraki on the matter.
As things are, Enang’s discomfiture over the issue has not eased. At the weekend, the presidential adviser tried to explain himself on his role as a prosecution witness against the Senate President and his deputy. He said that his enlistment flowed from his role as the Chairman of the Senate Committee on Rules and Business in the immediate past Senate and not necessarily on account of his position as a presidential aide.
Whatever the case, that assertion is the proof for critics who say that the trial of Saraki and Ekweremadu is geared at settling issues that preceded their election as the Senate chief helmsmen.