Ghost Of S'Court Verdict Haunts Saraki

The Authority - A Federal High Court in Abu­ja yesterday refused an invita­tion by Senate President, Bu­kola Saraki, to stop his trial before the Code of Conduct Tribunal (CCT).

The trial High Court judge, Jus­tice Abdul Kafarati who turned down Saraki’s request held that the senate president’s application was a danger­ous invitation to stage a coup against the Supreme Court, the judicature and the 1999 Constitution of the Federal Republic of Nigeria which it is estab­lished to protect.

Saraki is standing trial before the CCT over alleged false assets declara­tion while he was governor of Kwara State between 2003 and 2011.

The AUTHORITY on Saturday reports that the on-going trial of Sa­raki is on the order of the Supreme Court of Nigeria (SCN).

The apex court had specifical­ly held, by a unanimous verdict, that the charge against Saraki by the Fed­eral Government was competent and that the tribunal was not only proper­ly composed but also had subject-mat­ter jurisdiction to try the charge pre­ferred against him.

The court had consequently or­dered him back to the tribunal to face his trial.

But Saraki had changed his team of counsel to challenge the jurisdiction of the tribunal afresh to try him but failed as his application was thrown out.

After failing to get the tribu­nal’s nod to stop his trial, he had ap­proached a Federal High Court in Abuja by a way of an application for the enforcement of his fundamental human rights against a litany of pros­ecutorial agencies in Nigeria regard­ing his prosecution.

In the application, he specifically urged the High Court to bar the Attor­ney General of the Federation (AGF), the Economic and Financial Crimes Commission (EFCC), the Independ­ent Corrupt Practices Commission (ICPC), the Code of Conduct Bureau (CCB), Code of Conduct Tribunal, Justice Danladi Umar, Mr. Ataedze Agu Adza, Mr. Sam Saba and Mr. Mo­hammed Diri who are respondents in the suit from further prosecuting him.

Saraki, in the suit filed for him by his lawyer, Mr. Ajibola Oluyede, con­tended that his trial before the CCT, as currently constituted was a violation of his right and that there was no way he could get justice.

It was also Saraki’s contention that, while the (EFCC) was current­ly investigating Umar who is the CCT Chairman for alleged bribery and at the same time prosecuting him (Sa­raki) before the tribunal he (Umar) heads, it would be impossible for the CCT Chairman to do justice and act independently in his (Saraki’s) case.

In his reliefs before the court, Sa­raki prayed for a declaration that his on-going trial before the Code of Con­duct Tribunal as constituted by the 7th and 8th respondents falls short of the requirement of the article 3 of the Af­rican Charter on Human and Peoples Rights and section 36 of the constitu­tion of the Federal Republic of Nige­ria in view of the clear bias against him and the apparent pursuit of a pre-de­termined agenda for his humiliation and conviction.

He also sought a declaration that the obvious subjugation and use of the respondents against him for the polit­ical objectives of the ruling political party at the federal level, the All Pro­gressives Congress (APC) – including his arrest, detention, humiliation and prosecution of trumped up charges of the applicant with the intention of se­curing his removal, impeachment and resignation from the office of Presi­dent of the Senate of the Federal Re­public of Nigeria – amounts to an ex­ercise of executive power for ulterior motives and not for the public good, among others.

The embattled Senate President urged the court to make: “An order nullifying the charges brought by 1st, 2nd, 9th and 10th respondents before the Code of Conduct Tribunal against him consisting of charges relating to assets declaration which have not been the subject of the procedure pre­scribed by the Code of Conduct Bu­reau Act LFN 2004, in breach of his fundamental rights to equality before the law and fair hearing as guaran­teed by Article 3 of the African Char­ter of human and Peoples Rights and section 36 of the constitution of the Federal Republic of Nigeria 1999 (as amended).

He also asked for an order re­straining the 7th and 8th respondents by themselves, their agents, servants or privies from continuing with the tri­al of the applicant on the basis of the charge presented by the 1st, 2nd, 9th and 10th respondents,” among other similar orders.

The Federal Government had however tackled him before the court, saying the entire process was an invita­tion through the backdoor to overrule the Supreme Court regarding his trial.

However, delivering judgment in the matter yesterday, the presiding judge, Justice Abdul Kafarati held that Saraki’s application for the enforce­ment of his fundamental right did not fall under chapter 4 of the 1999 Con­stitution under which Saraki predicat­ed his application.

The judge said the court “cannot interfere” with the constitutional func­tions of the respondents by restraining them from prosecuting Saraki over al­leged assets declaration.

He held: “This court cannot in­terfere with proceedings before the Code of Conduct Tribunal which has to try the offences. I cannot also in­terfere with the constitutional powers, duties or functions of the respondents by restraining them from doing their official duties that was committed to them by law.”

On the abuse of court process, Jus­tice Kafarati recalled Saraki’s journey to the Court of Appeal and Supreme Court, where he had unsuccessful­ly challenged the CCT’s jurisdiction to try him.

“You may recall that the respond­ent had appealed to the Appeal Court and the Supreme Court where the apex court ruled that proceedings of the CCT were in order. It is not ap­propriate for the applicant to approach this court seeking for orders to quash the charges that were filed against him by the respondents.

“If I grant the applicant’s reliefs, there will be conflict between the judgment of this court and that of the CCT concerning the rulings of the Tri­bunal, the Court of Appeal and the Supreme Court on the same Issues as contained in the application in the in­stant case.

“It is important to note that this application was filed after the Court of Appeal dismissed the applicant’s ap­peal against the ruling of the Code of Conduct Tribunal.

“In view of the above findings, I hold that the applicant’s application is not available under Chapter 4 of the 1999 Constitution.

“Having come to this conclusion, I am of the view that the case is hereby dismissed. The respondents’ prelim­inary objections succeed. That is the judgment of this court,” Justice Kaf­arati declared.

The AUTHORITY on Satur­day recalls that Justice Kafarati had scheduled judgment for March 22, but when the parties arrived court, he changed his mind at the last minutes and informed them that he was with­drawing from the case and returning the case file to the Chief Judge of the Federal High Court, Justice Ibrahim Auta for re-assignment to another judge.

Justice Kafarati had based his de­cision on publications by some online media, which he (the judge) said had cast him in bad light and portrayed him as a compromised judge.

He said no matter in whose fa­vour his judgment went, the losing party will habour the impression that he was influenced.

But on March 23, Mr. Oluyede, Saraki’s counsel, wrote Justice Auta, demanding that he prevailed on Jus­tice Kafarati to deliver his withheld judgment, no matter who benefitted.

Oluyede had said in the letter: “It is our argument in the suit that the Code of Conduct Tribunal cannot act independently the way it is cur­rently constituted because we believe its Chairman, Danladi Umar, who is currently under investigation by the EFCC, cannot be independent in de­ciding a case being prosecuted before him by the EFCC.

“We have also contended that the EFCC, by admitting that the investi­gation of the case against our client was done by a special task force, as against the requirement by the provi­sion in Schedule 3 of the Constitution, has usurped the exclusive duties of the Code of Conduct Bureau (CCB). It is on that basis we argued that our cli­ent cannot get justice under the cur­rent arrangement and asked the court to quash the charge.”

Part of the letter he wrote to Jus­tice Auta reads: “Although one cannot but sympathise with the hard-work­ing judges, who are victims of these vicious attacks, nevertheless, we find ourselves in disagreement with his (Justice Kafarati) that the interest of justice would be served by his with­holding of his judgment and return­ing the matter to your Lordship for re-assignment.

“In our view, the abdication by Justice Kafarati not only fail to meet the end of justice, it also gives mo­mentum to the growth of blackmail tactics and dishonourable conduct targeted at obstructing the adminis­tration of justice.

“It would therefore set a bad prec­edent if your Lordship accedes to Jus­tice Kafarati’s request to allow him to withhold his prepared judgment in this action because of fear of ephem­eral public opinion.

“We write to seek your lordship’s most urgent intervention to prevail on honourable Justice Kafarati to have his judgment read, so that the very es­sence of such an important applica­tion under the Fundamental Rights (enforcement procedure)Rules 2009 may not be completely lost and the entire judicial process brought to avoidable ridicule.

“It is immaterial in whose favour the judgment goes so long as we can, through this resistance, defeat the on-line media terrorism being unleashed against the judicial system.

“If this precedent is set, there will be no end to this, as it would mean that all a litigant that wishes to frus­trate the administration of justice for any reason, need to is to sponsor spurious allegations against the judge and that will terminate the proceed­ings and frustrate the timely delivery of justice.”

Then it was later learnt that Jus­tice Auta had acceded to Saraki’s re­quest and directed Justice Kafarati to proceed and deliver his verdict in the suit.

But The AUTHORITY on Sat­urday reliably learnt that the view of the Chief Justice of Nigeria (CJN) was sought on the matter.

An impeccable source close to Justice Kafarati told The AUTHOR­ITY on Saturday that he was advised to collect back the case file and decide the case according to his conscience.

He was said to have made up his mind to do justice in the case in ac­cordance to the oath of office he took and his conscience.

The judgment has however be­come history.

Speaking with newsmen short­ly after the judgment was delivered, Oluyede said he would consult with his client on the next line of action.

“The main issue we brought be­fore the court was with regard to the independence of the Code of Conduct Tribunal, that is, if the presiding judge is himself a subject of investigation by the EFCC and the EFCC are prosecut­ing the case before him, is it appropri­ate for him to continue to preside over the matter in that kind of situation?

“We came to court because we believed that was provided for under section 36 of the constitution which prescribes that a tribunal trying a per­son for a criminal offence must be constituted as to guarantee its inde­pendence and impartiality. And that is a fundamental right for every Ni­gerian.

“However, the court’s decision is that the reliefs we were claiming does not fall within fundamental rights ap­plication. And it is on that basis that the court has taken the decision it has taken today. The only option open to the applicant, of course, is to appeal. And after we have consulted with our client, we will know what will be the next step to take,” Oluyede said.

On his part, the prosecution counsel, Rotimi Jacobs (SAN), lauded the judiciary for upholding the demo­cratic tenet of the rule of law.

Jacobs, however, expressed ut­ter dismay at the prosecution coun­sel for trying to mislead the court by re-litigating the same issues the Sen­ate President canvassed before the Su­preme Court but were thrown out.

“I am not surprised; it is a natural thing and I’m happy that the rule of law has prevailed. We have been say­ing it for a very long time that this ap­plication ought not to have been filed. One was dismissed by Justice Buba of the Federal High Court in Lagos. He (Saraki) came to Abuja and filed an­other one; raising the same issues he was raising before the Code of Con­duct Tribunal that went to the Su­preme Court.

“And we said, ‘You cannot do this.’ All the issues the senior lawyer raised here, he had raised similar issues be­fore. You cannot stop prosecution be­fore a court. The same lawyer, three judgments were given against him (Saraki) at the Court of Appeal. How­ever, he refused to cite one of those three judgments until we drew the attention of the court to it that this lawyer’s same arguments had been considered by the Court of Appeal in three judgments, and the Court of Ap­peal condemned his arguments.

“If it were in other jurisdictions, lawyers cannot do that. For a judg­ment to be given against you in three judgments and then you argue against it again without referring the court to it, is a professional misconduct. I’m afraid the way we are going. We need to change. If we want the nation to change, we must change. What he (Oluyede) did here, if he tries it in the UK, he will go; he cannot practice law again. But here, anything goes,” Jacobs lamented.