What happens to Senator Saraki: A legal perpspective

Senate president, Senator Bukola Saraki is facing a 13-count criminal charge bordering on false declaration of assets preferred against him. The charges filed by the office of the Attorney General of the Federation and endorsed by a deputy director in the Federal Ministry of Justice, Muslim Hassan, were brought under Section 2 of the Code of Conduct Bureau and Tribunal Act. The offences are punishable under paragraph 9 of the fifth schedule of the Constitution.

Saraki, had approached both the Federal High Court and the Court of Appeal for some succour. Through his lawyer, he challenged the composition of the CCT panel, which according to him was not properly constituted. He contended that going by the provision of paragraph 15 of the Third Schedule to the CCB and Tribunal Act, the tribunal ought to have been made up of three justices.

However, the Court of Appeal on Monday in Abuja, struck out the application filed by the Senate President, seeking to set aside the order for his arrest issued by the Code of Conduct Tribunal (CCT).

After hearing the arguments by Saraki’s counsel, Adebayo Adelodun, SAN, Justice Morrie Adumein ruled that it was not in the habit of the court to interfere with the ‎proceedings of a lower court, when the other parties have not been heard. She thus refused to grant a stay of execution, sought b Senator Saraki, stating that it would be better to serve the interest of justice by putting the respondents on notice.

In the meantime, the motion on notice has been adjourned to Tuesday, September 29, 2015 for proof of service and hearing.

In this edition, members of the legal community, share differing opinions and perspectives on all matters arising from the case.

Exerpts below:

In charge number ABT/01/15, dated September 11 and filed before the Code of Conduct Tribunal (the “Tribunal”), Senator Bukola Saraki is said to have committed offences ranging from anticipatory declaration of assets to making false declaration of assets in forms he filed before the Code of Conduct Bureau (the “Bureau”) while he was governor of Kwara State.  The Senate President is also being accused of failing to declare some assets he acquired while in office as governor.  The offences, as contained in the charge, violate sections of the Fifth Schedule of the Constitution of the Federal Republic of Nigeria 1999, as amended.  Senators Saraki is also said to have breached Section 2 of the Code of Conduct Bureau and Tribunal Act and punishable under paragraph 9 of the said Fifth Schedule of the Constitution.

Wrong Legal Move by Saraki’s lawyers

Rather than file a proper defence before the Tribunal (i.e raise any preliminary objection which they thinks he may have, or defend the substantive charge), his legal team wrongfully advised him to thwart the proceedings at the Tribunal by approaching the Federal High Court to obtain the usual injunction.  Looks like he who pays the piper continued to dictate the tune, the Federal High Court in grave error, ordered all the parties including the Bureau and the Tribunal to appear before it.  This order apparently has the effect of staying the proceedings at the Tribunal pending the outcome the motion on notice filed before the Federal High Court. 

Clearly, the move by Saraki’s lawyers was a wrong one. To start with, it is a trite and well established principle of law that under the doctrine of judicial precedent, no court of law has the powers to interfere with, or in any way restrain the exercise of the judicial powers of another court of co-ordinate jurisdiction. See for example the case of Dairo v. U.B.N. Plc. (2007) 16 NWLR (Pt.1059) 99 at 159.  The Federal High Court and the Tribunal are clearly courts of co-ordinate jurisdiction for the following reasons:

Section 249 creates the Federal High Court; section 15 of Part 1 of the First Schedule gives birth to the CCT.  Hence, they are both creation of the Constitution; and

By Section 23 (4) of the Code of Conduct Bureau and Tribunal Act, appeals from the Tribunal lie to the Court of Appeal in the same vein by Section 243 of the Constitution, appeals from the Federal High Court lies to the Court of Appeal;

It is even interesting to note that the Chairman of the Tribunal must be eminently qualified to be a judge of the High Court.

Assuming, without even conceding, that the Tribunal is inferior to the Federal High Court, in all common law jurisdictions, the proper procedure to strip an inferior court of its jurisdiction is by way of certiorari – an application for judicial review, where a superior is asked to quash the proceedings of an inferior court.  Obviously Saraki’s lawyers have not toed this path. It is also very incorrect for Saraki’s lawyers to base his ex parte application on the argument that there is no incumbent Attorney General capable of instituting actions against him or any criminal action whatsoever.  This issue has long been settled by the Supreme Court in plethora of authorities. In AG Federation v. ANPP (2003) 18 NWLR (Part 851) 182, the Supreme Court held that office of the Attorney General is a body corporate with perpetual succession, and continues to function, irrespective of whether there is a sitting AG or not.  Also in Federal Republic of Nigeria v. Senator Adewunmi (2007) 10 NWLR (Pt.1042) 399 where the Supreme Court, held that the power to institute criminal proceedings against any person in the 1999 Constitution lies on the Attorney-General of the State or the Federation as the case may be, but such power may be exercised by the Attorney-General himself or through any officers of his department. See Sections 174 and 211 of the 1999 Constitution.  It is therefore incorrect to say that the absence of a sitting Attorney General (who ought to commence the action at the Tribunal) is a basis for an objection.  The office of the Attorney General by the decisions cited above is an institution and its function can be performed by an officer in that office.  Moreso, Section 24 (3) of the Code of Conduct Bureau and Tribunal Act provides the Attorney General or any one nominated by him may bring charges in respect of offences under the Act.  Section 25(3) Code of Conduct Bureau and Tribunal Act also provides that the question whether any authority has been given in pursuance of this section requiring the Attorney General to donate his

prosecutorial powers under the Act, shall not be inquired into by any person.  Now this provision is the killer, even if Saraki’s lawyers decide to raise this point at the Tribunal, such objection shall in medico legal terminology be dead on arrival.  The law does not allow them to inquire into the fact whether the prosecutor has the nomination of the Attorney General.

Does the Tribunal have the power to issue bench warrant?

By Sections 2 and 14 of the 3rd Schedule to the Code of Conduct Bureau and Tribunal Act, The Tribunal has the power to compel the attendance of accused persons and witnesses.  Hence the bench warrant issued against Senator Saraki on 18 September 2015 is perfectly in order.

What may happen to Senator Saraki?

By Section 23 of the Code of Conduct Bureau and Tribunal Act, the Tribunal may impose the following punishment on Senator Saraki if found guilty:

order that he vacate his office  or any elective or nominated office, as the case may be;

disqualify him from holding any public office (whether elective or not) for a period not exceeding ten years; and

seize and forfeit to the State of any property acquired in abuse or corruption of office.

Conclusion

From the above legal analysis, it looks like this may be the end of the road for the Kwara born Senator, who doubles as the Senate President.  Save for all manners of technical objections and delays, it appears the country may be shopping for another Senate President and a bye election may be on its way in his constituency in Kwara State.

Wale Fapohunda esq

‘Wale Fapohunda is a Lagos based Legal Practitioner.