Ade Adesomoju , Abuja
The Federal Government , on Tuesday , filed
11 grounds notice of appeal against the June 14, 2017 judgment of the
Code of Conduct Tribunal which acquitted Senate President Bukola Saraki
of 18 counts of false asset declaration and other related offences.
The charges were preferred against Saraki , a former governor of Kwara State , in September 2015.
The CCT , in Abuja, had , on June 14, 2017 , discharged and acquitted Saraki of all the 18 charges.
The
two - man panel of the CCT , led by its Chairman, Danladi Umar ,
unanimously upheld the no - case submission which Saraki filed after the
prosecution closed its case with the fourth and the last prosecution
witnesses testifying on May 4 , 2017.
There were 48 documentary exhibits tendered in the course of the trial.
Umar
, in his lead ruling , exonerated Saraki of all the charges on , among
other grounds , that failure of the prosecution to invite Saraki for
interrogation was fatal to the case.
In its notice of appeal ,
the Federal Government stated that the judgment “ effectively ”
overruled previous decisions of the Court of Appeal delivered with
respect to Saraki ’ s trial and other criminal cases.
“ The
judgment of the lower tribunal is unwarranted, unreasonable and against
the weight of evidence , ” the notice of appeal read in part.
The
notice of appeal was signed by the lead prosecuting counsel , Mr .
Rotimi Jacobs ( SAN ) , and an Assistant Chief State Counsel in the
Federal Ministry of Justice , Mr . Pius Akutah.
Describing the
judgment as “ unconstitutional and without jurisdiction ” , the
appellant stated that the CCT erred in law by upholding Saraki ’s no -
case submission “ when the onus of proof” was on the Senate President to
show “ that there was no infraction in the Code of Conduct Forms.
It
added , “ By the provisions of paragraphs 11 ( 2 ) , ( 3 ) and ( 13 )
of Part 1 , 5 th Schedule to the Constitution of the Federal Republic of
Nigeria , 1999 ( as amended ) , once the Code of Conduct form filled by
the public officer is investigated and found to be false or that some
assets are beyond the legitimate income of the public officer or that
the assets were acquired by means of corrupt practices , the public
officer concerned is deemed to have breached the Code of Conduct and it
is for him to show to the tribunal that there is no infraction in the
form.
“ The honourable tribunal wrongly placed the onus of proof
on the prosecution contrary to paragraphs 11 ( 2 ) , ( 3 ) and ( 13 ) of
Part 1 , 5 th Schedule to the Constitution of the Federal Republic of
Nigeria , 1999 ( as amended ).
“ The Constitution of the Federal
Republic of Nigeria , 1999 ( as amended ) clearly excluded the
presumption of innocence on the allegation of infraction of the Code of
Conduct by public officers and the Tribunal wrongly applied the
presumption of innocence contrary to the constitutional requirement.
“ The tribunal’s decision is unconstitutional and without jurisdiction .”
But
in the notice of appeal filed on Tuesday , the Federal Government
sought two prayers which are “ an order setting aside the ruling of the
Code of Conduct Tribunal delivered on June 14, 2017 upholding the no-
case submission raised by the respondent ( Saraki ) at the close of the
prosecution ’ s case” and “ an order calling upon the respondent to
enter his defence . ”
The Federal Government in its notice of appeal faulted all the grounds on which the CCT predicated Saraki ’s acquittal.
The
appellant stated among others that the CCT “ failed to analyse and
evaluate the evidence of prosecution witnesses” before reaching the
conclusion that there was no case made against Saraki.
It stated that the tribunal also failed to point out the evidence of prosecution witnesses discredited by the defence.
According
to the appellant , the tribunal also failed to apply the provisions of
sections 302 and 303 of the Administration of Criminal Justice Act ,
2015.
The notice of appeal stated in part, “ The learned members
of the tribunal, in their consideration of no -case submission, failed
in their duty to look at the offences charged, the ingredients of the
offence and the evidence adduced by the prosecution before upholding the
respondent’s no - case submission.
“ The learned members of the
tribunal failed to analyse and evaluate the evidence of prosecution
witnesses before reaching their conclusion that there is no case made
out against the respondent.
“ The tribunal failed in its duty to
point out the material evidence adduced by the prosecution witnesses
touching the ingredients of the offence charged that was discredited by
the respondent’ s counsel during cross- examination.
“ The
learned members of the tribunal failed to consider and apply the
decision of the Supreme Court in Daboh v State ( 1977 ) 5 SC 197 at 315 ,
where the Supreme Court held that if the submission is based on
discredited evidence, such discredited evidence must be apparent on the
face of the record and that if such is not apparent , then the
submission is bound to fail.
“ The learned members of the
tribunal failed to point out any apparent discredited evidence on the
face of the record before it upheld the submission of a no case.
“
The tribunal failed in its duty to point out the essential ingredients
of the offences charged and the evidence adduced by the prosecution to
show that the available evidence could not establish the ingredients of
the offences.
“ The tribunal failed to apply the provisions of
sections 302 and 303 of the Administration of Criminal Justice Act ,
2015 in upholding the no- case submission made by the respondent .”
In
the second grounds, the appellant held that in upholding the no - case
submission, the tribunal ought to have only discharged Saraki , but
wrongfully went ahead to discharge and acquit the Senate President.
The
notice of appeal stated , “ The power of the Tribunal when upholding a
no - case submission is to discharge the defendant and not to acquit
him.
“ By section 302 of the Administration of Criminal Justice
Act , 2015 , the only order the Tribunal can make when a no - case
submission is upheld is an order of discharge and not acquittal .”
Also
, the appellant faulted the claim by the CCT that the Economic and
Financial Crimes Commission, which investigated the case against Saraki ,
failed to invite him for interrogation before charging him.
It contended that the CCT ’s finding was against the evidence adduced by the prosecution.
It
stated that contrary to the CCT ’ s finding , the EFCC invited Saraki
and obtained his hand - written statement made by him under caution and
the prosecution tendered the document before the CCT as exhibit 45.
It
added that the decision by the CCT amounted to overruling its earlier
ruling delivered on March 24 , 2016 and the judgment of a superior court
, the Court of Appeal , where “ it was decided that the defendant (
Saraki ) needs not to be invited . ”
The notice read in part, “
PW 1 never said that the EFCC did not invite the respondent in the
course of investigation of the petition against him but that PW 1 did
not personally invite the defendant.
“ The tribunal’ s decision
is against its earlier ruling delivered on March 24 , 2016 and the
decision of the Court of Appeal in Appeal No : CA/ A / 172 C / 2016
where it was decided that the defendant need not to be invited.
“ The tribunal wrongly overruled the decisions of the Court of Appeal and itself .”
It argued that then CCT erred when it described the testimony of a prosecution witness as hearsay.
The
notice of appeal read , “ PWIII is an investigator with the Code of
Conduct Bureau who gave evidence of the role he played, what he saw and
the outcome of his investigation.
“ The Tribunal failed to
consider paragraphs 11 ( 2 ) , ( 3 ) and ( 13 ) of Part 1 , 5 th
Schedule to the Constitution of the Federal Republic of Nigeria , 1999 (
as amended ) which imposed the onus of proof on the respondent to
justify his declaration.
“ The evidence of PWIII is not hearsay evidence.”
In
another grounds of appeal , the appellant faulted the decision of the
co- member of the CCT , William Agwaza, who held that the joint
investigative team, comprising operatives of the EFCC , the Department
of State Services and the CCB was unknown to law.
The appellant
stated , “ The respondent, by his own application dated 1 st March ,
2016, had raised the same issue that it is only the Code of Conduct
Bureau that could investigate him and that the power of investigation
cannot be delegated to the EFCC or any other body or agency.
“The
tribunal, by its ruling delivered on 24 th March , 2016 , ruled and
dismissed the application of the respondent and he appealed to the Court
of Appeal in Appeal No : CA/ A/ 172 C / 2016.
“ The Court of
Appeal in the judgment delivered 27th October, 2016, by Aboki , PJCA ,
dismissed the appeal and held that “ there is nothing in any law
preventing the Code of Conduct Bureau, an agent of the Federal
Government, from collaborating or acting in concert with any other
organs of the Federal Government , which are also engaged in
investigations and prosecution of criminal matters in order to achieve
its mandate under the constitution and the law.”
“ By the ruling
of Hon . Agwadza , he has unwittingly sat on appeal and overruled the
earlier decision of the Tribunal and the decision of the Court of
Appeal.
“ The decision of Hon. Agwadza borders on judicial rascality and impertinence. ”
The
notice of appeal also faulted the CCT pronouncement that the
prosecution did not tender the original asset declaration forms of the
respondent and his statement when they were available.
It stated ,
“ Exhibits 1 to 6 , 26 and 45 qualify as public documents under Section
102 of the Evidence Act , 2011 , and there is no law that makes only
the original of public documents admissible in law.
“ The
Tribunal failed to consider the provisions of Sections 102 , 104 , 105
and 146 of the Evidence Act, 2011 to the effect that a certified true
copy of a public document or part thereof may be produced in proof of
the contents of the public document or a part thereof.
“ The
Tribunal effectively overruled the decisions of the Supreme Court in
Odubeko v. Fowler (1993) 7 NWLR (Pt. 308) 637 and the Court of Appeal in
Tumo v . Muwana (2000) 12 NWLR ( Pt . 681 ) 370 that courts must
presume certified true copies of public document as genuine and act on
it unless there is a contrary evidence.
“The Tribunal completely
closed its eyes to the fact that the prosecution produced the original
of the assets declaration forms before the Tribunal and requested the
Tribunal and the defendant to compare the original with the certified
true copies without any objection from the defendant.”
The notice
of appeal added, “The Code of Conduct Tribunal erred in law in
upholding the no - case submission raised by the respondent at the close
of prosecution ’ s case and in discharging the respondent.
“ By
the authorities cited , the prosecution only has a duty to show that
there are some infractions of the Code of Conduct prescribed for public
officers under the Constitution and the prosecution had established
those infractions through his witnesses.”
