Saraki’s Discharge/Acquittal by the CCT: Are Celebrations in Order?
The Senate President, Dr. Abubakar Bukola Saraki has, not surprisingly, welcomed his discharge and acquittal by the Code of Conduct Tribunal on Wednesday, 16th June, 2017 on charges of false asset declaration. This followed the upholding by the Tribunal of his counsel’s no-case submission in respect of the 18-count charge, which had been pending against him since 2015. However, not a few Nigerians were left scratching their heads at the verdict, given the seriousness of the charges, not least of which was the allegation of multiple daily lodgements into his bank account(s) between 2003 & 2011, when he was the Governor of Kwara State. In the circumstances, I believe that a review of the conditions under which such a submission can legitimately be made, is not out of place. Was the Tribunal correct, to hold that those circumstances applied to all the eighteen charges against Dr. Saraki?
What is a No-case Submission?
The relevant principles governing the no-case submission in Dr. Saraki’s case are contained in Sections 302 and 303 of the Administration of Criminal Justice Act 2015. By virtue of those provisions, a submission that an accused person has no case to answer, means either of two things: (i) that one or more essential element(s) of the offence or offences which the accused has been charged with, was or were not established by the prosecution; and (ii) that the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable, that no reasonable tribunal can safely convict on it. See F.R.N. v MARTINS (2012) 14 NWLR Pt. 287 and EKWUNUGO v
F.R.N. (2008) 15 NWLR pt. 1111 pg. 630 However, in considering such a submission, the court is not concerned with whether the evidence adduced by the prosecution is sufficient to ground a conviction, but rather, with whether the prosecution has made out what is called a prima facie case requiring some explanation from the accused. Accordingly, the question of the credibility of witnesses or weight to be attached to their evidence, does not arise at that stage. In other words, the question of whether the court believes the evidence does not arise: see AITUNMA v THE
STATE (2006) 10 NWLR pt. 989 pg. 452. The court’s ruling on such a submission, is required to be as brief as possible, and it should avoid evaluating the evidence: F.R.N. MARTINS, supra.
The Charges
Before reviewing the raison d’etre of the Code of Conduct Tribunal for upholding Dr. Saraki’s no-case submission, a brief over-view of some of the charges will be apposite.
i. One of the charges alleged that Dr. Saraki continued to receive remuneration as Governor of Kwara State after his tenure as such expired on the 29th day of May, 2011, whilst simultaneously receiving the emoluments of a Senator, which status he acquired at the end of his said tenure as Governor, between June 2011 and October 2013;
ii. That, on his assumption of office as Governor of Kwara State in 2003, he
failed to declare his leasehold interest in No. 42 Remi Fami-Kayode Street, Ikeja, Lagos State;
iii. That whist he was a public officer, to wit, Governor of Kwara State and as
Senator he operated foreign bank accounts which he failed to declare to the Code of Conduct Bureau;
iv. That he falsely declared certain properties in Ikoyi, Lagos State,
which he bought through one Carlisle Properties Ltd, as well as another one in Maitama, Abuja, FCT.
The Verdict
The ruling on the no-case submission was unanimous, as the only other member of the tribunal, Mr. Atedze Agwaza, concurred with the lead judgement of the Tribunal Chairman, Mr. Danladi Umar. However, given that the lead decision of a multi-member court or tribunal is the relevant one for the purposes of precedence, we shall confine our analysis to the reasons given by the Tribunal Chairman for his opinion. See
IWEKA v S.C.O.A. (2002) FWLR pt. 115 pg. 641 @ 651B; and CONSORTIUM C3632Lot 4 v N.E.P.A. (1992) 7
S.C.N.J. pt 1 pg. 1 @ 12;
The lead opinion regarded the failure of the prosecution to obtain Dr. Saraki’s Statement or, at the very least, to attach it to the proof of evidence, along with the investigation report into the charges, as fatal. The Chairman specifically characterised the default as ‘absurd’; adding that the testimony of the prosecution witnesses were unreliable.
Is the Ruling Correct?
This question might suggest that a value judgement is required, but this is not necessarily the case and even if it is, it does not undermine it - provided it is based on the law and not sentiments. Accordingly, in my view, the most detached and impartial observer, cannot but be puzzled that not even the charge of multiple payments allegedly made on a daily basis by Dr. Saraki (as many as 150 times, it is alleged) into his account with Guaranty Trust Bank, was not deemed by the Tribunal to deserve at least some explanation from him.
In my respectful view, the Tribunal appeared to have observed the rules applicable to no-case submissions, in the breach. This is because it not only undertook a legally inappropriate evaluation of the evidence, it went ahead to discountenance same as hearsay, and to hold that the nonavailability of Dr. Saraki’s statement and the investigation report, were fatal. This is wrong. At the stage of ruling on the no-case submission, for the tribunal to have discountenanced any piece of evidence solely on the ground of the general ban against hearsay evidence, was completely misconceived. This is because, Sections 37 & 38 of the Evidence Act which make that provision, are not absolute, but are expressed as being qualified by any other provision, either of the Act, or any other law.
The Tribunal should have confined itself at that stage, to simply determining whether or not a prima facie case had been made out. A prima facie case has been defined as “a case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation”: see UBANATU v C.O.P (2000) 1 SCNJ 50. It is hard to believe that none of the 48-odd exhibits tendered by the prosecution, were deemed to have crossed this threshold. I believe that the Tribunal fell into serious error, which occasioned a grave miscarriage of justice, by failing to correctly apply the rules for upholding no-case submissions, especially with regard to the establishment of a prima facie case by the prosecution, which were restated in
F.R.N. v MARTINS, supra and Sections 302 & 303 of ACJA.
I submit that had the tribunal applied those principles correctly, it would have found ample support for over-ruling the submission in Paragraph 10(3) of the Code Of Conduct For Public Officers contained in Part 1 of the Fifth Schedule of the 1999 Constitution, which provides that: “Any property or assets acquired by a public officer after any declaration required under this Constitution and which is not fairly attributeable to income, gift or loan approved by this code, shall be deemed to have been acquired in breach of this code unless the contrary is proved” It is clear that the last seventeen words of this provision - “shall be deemed to have been acquired in breach of this code unless the contrary is proved” - put the onus squarely on Dr. Saraki to offer some explanation as to the source(s) of the properties, which he allegedly acquired after declaring his assets to the Code of Conduct Bureau – if that, indeed, is the case.
I suspect that the Tribunal was swayed by the prevailing political tension in the country, to render what is, to all intents and purposes, a verdict dictated more by political expediency, than anything else. As a result, in my view, it bent over backwards to rely on technicalities to anchor its findings. The apex court has repeatedly deprecated this. See STATE
v GWONTO (1983) 1 SCNLR 142 @ 160 where it held that “Justice can only be done if the substance of the case is examined. Reliance on technicalities leads to injustice”.
Conclusion
Under the Constitution, the Tribunal’s decision is subject to review by the Court of Appeal at the behest of the prosecution. To that extent, any celebrations by the Distinguished Senate President at his presumed ‘victory’, might be premature. More importantly, as a politician, he ought to be as concerned about the verdict of history/the court of public opinion, as that of the Tribunal. Whilst the latter is over and done with, former is far harder to gauge and harder still to influence. Accordingly, in my view, he should keep the Champagne firmly corked, and await the verdict of history and/or the Appeal/Supreme Court. Till then, however, he is as entitled to the presumption of innocence as anyone else, regardless of the opinions of his ‘traducers’.
"TO THAT EXTENT, ANY CELEBRATIONS BY THE DISTINGUISHED SENATE PRESIDENT AT HIS PRESUMED ‘VICTORY’, MIGHT BE PREMATURE. MORE IMPORTANTLY, AS A POLITICIAN, HE OUGHT TO BE AS CONCERNED ABOUT THE VERDICT OF HISTORY/THE COURT OF PUBLIC OPINION, AS THAT OF THE TRIBUNAL"