FEDERAL GOVT OF NIGERIA APPEALS CCT JUDGMENT ON SENATOR SARAKI
FEDERAL GOVT APPEALS CCT DECISION ON SENATOR SARAKI
The Federal Republic of Nigeria has filed its appeal
against the decision of the Code of Conduct Tribunal (CCT) to acquit
Senate President Bukola Saraki of false asset declaration charges.
The appeal was filed by attorneys Rotimi Jacobs and Pius Akutah at the Court of Appeal in Abuja.The appellants argued that the CCT chairman, Danladi Umar, “erred in law” by upholding the no case submission filed by Mr. Saraki.
Read the full appeal below:
FRN V. SARAKI – NOTICE OF APPEAL
IN THE COURT OF APPEAL
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
APPEAL NO:…………………..
CHARGE NO: CCT/ABJ/01/15
BETWEEN
FEDERAL REPUBLIC OF NIGERIA) APPELLANT
AND
DR. OLUBUKOLA ABUBAKAR SARAKI) RESPONDENT
NOTICE OF APPEAL
TO THE REGISTRAR OF THE COURT OF APPEAL
We, ROTIMI JACOBS, SAN and PIUS AKUTAH, ESQ., the prosecutors in the above case and being desirous of appealing against the decision of the Code of Conduct Tribunal holden at Abuja dated 8th June, 2017 (but delivered on 14th June, 2017) under Section 241 (1) (a) of the 1999 Constitution of the Federal Republic of Nigeria,
DO HEREBY GIVE NOTICE OF APPEAL on the following grounds:
1. GROUND ONE
The Code of Conduct Tribunal erred in law in its lead ruling delivered by Hon. Danladi YakubuUmar, when it held that:
“The Tribunal has
carefully analyzed all the testimonies of the witnesses of the
prosecution and the submissions of counsel to the defence on the no case
submission and response of the prosecution opposing the no case
submission, we equally perused through the reply on points of law
submitted by the defence on issues of law raised by the prosecution in
their written address. It is the belief of this Tribunal that all the
testimonies of the prosecution witnesses adduced in this trial has been
so discredited as a result of cross examination and is manifestly
unreliable that no reasonable Tribunal could safely convict on it. See
IBEZIAKO .V. COMMISSIONER OF POLICE (1963) ALL NLR 61. The Tribunal
equally observed that the evidence adduced by the prosecution is far
from proving essential elements in the alleged offences against the
Defendant.”
PARTICULARS OF ERROR
i. 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.
ii. The learned members of the Tribunal
failed to analyze and evaluate the evidence of prosecution
witnesses before reaching their conclusion that there is no case made
out against the Respondent.
iii. 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.
iv. 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 heldthat 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.
v. 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.
vi. 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.
vii. 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.
viii.The Tribunal denied the Appellant
its right to fair hearing guaranteed by section 36 of the 1999
Constitution (as amended) by its failure to dispassionately consider the
evidence adduced by the prosecution against the Respondent.
2. GROUND TWOThe Code of Conduct Tribunal erred in law in its lead ruling delivered by its Chairman, Hon. Danladi Yakubu Umar, when it held that:
“In the light of the foregoing, the Tribunal has nothing to do other than to discharge and acquit the Defendant.
PARTICULARS OF ERROR
i. The learned members of the Code of
Conduct Tribunal in their ruling on a no case submission dated 8th June,
2017 upheld the submission of no case made by the Respondent and
discharged and acquitted him on that application.
ii. The power of the Tribunal when upholding a no case submission is to discharge the Defendant and not to acquit him.
iii. By section 302 of the Administration
of Criminal Justice Act, 2015 the only order the Tribunal can made when
a no case submission is upheld is an order of discharge and not
acquittal.
iv. The Tribunal’s order acquitting the Appellant is ultra vires the power of the Tribunal.
3. GROUND THREEThe Code of Conduct Tribunal erred in law in its lead ruling delivered by Hon. Danladi YakubuUmar, when it held that:
“From the testimony of PW1, he
repeatedly stated that his team has never invited the Defendant. In
other words, their investigation was more of intelligence gathering
than conventional investigation known to all. Where a person is being
investigated, especially by a commission like EFCC, it behooves on the
Commission to invite the defendant so that the truth of the matter can
be established.”
PARTICULARS OF ERROR
i. The Tribunal upheld a no case
submission on the ground that the Economic and Financial Crimes
Commission that investigated the case did not invite the Defendant so
that “the truth of the matter can be established.”
ii. The findings of the Tribunal that the
EFCC did not invite the Respondent is not supported by the evidence
particularly exhibit 45 tendered by the prosecution which is the
handwritten statement of the Respondentmade under caution.
iii. PW1 never said that the EFCC did not
invite the Respondent in the course of investigation of the petition
against him but that PW1 did not personally invite the Defendant.
iv. The finding of the Tribunal is against the evidence adduced by the prosecution before it.
v. The Tribunal’s decision is against its
earlier ruling delivered on 24th March, 2016 and the decision of the
Court of Appeal in Appeal No: CA/A/172C/2016 where it was decided that
the defendant needs not to be invited.
vi. The Tribunal wrongly overruled the decisions of the Court of Appeal and itself.
4. GROUND FOURThe Code of Conduct Tribunal erred in law in its lead ruling delivered by Hon. Danladi YakubuUmar when it held that:
“PWII who is the Head of Funds
Transfer in his testimony stated that there was a fire incident that
engulfed the entire unit of Guaranty Trust Bank Funds Transfer and so
many documents were lost. PWIII in his own testimony stated that the
Chairman of the Code of Conduct Bureau gave him an oral instruction to
go and join the team of investigators from the EFCC to investigate the
defendant and he also stated that after completing their investigation,
he, PWIII came back to his Chairman CCB and gave his oral report of the
investigation. This is absurd, the Tribunal finds it difficult to accept
the seriousness of this kind of investigation at all.”
PARTICULARS OF ERROR
i. The Tribunal upheld the no case
submission of the Respondent on the ground that PWII testified that fire
engulfed Guaranty Trust Bank Funds Transfer Department which occasioned
loss of many documents and that PWIII received oral instruction from
the Chairman of the Code of Conduct Bureau and also submitted oral
instruction.
ii. The Tribunal only used part of the
testimony of PWII touching the loss of certain documents on transfer of
funds without considering relevant testimony of PWII that proved the
ingredients of the offences charged.
iii. The Tribunal failed to consider
other documents and exhibits made available by Guaranty Trust Bank that
were not lost as a result of the fire incident and that also supported
the case of the prosecution.
iv. The Tribunal unfairly closed its eye
to the relevant testimony of PWII and the various documents generated by
the Guaranty Trust Bank which were admitted as evidence before the
Court.
v. The approach of the Tribunal in
looking only at the documents that were lost to fire incident denied the
prosecution its right to fair hearing.
vi. The receipt of oral instruction
from theChairman of the Code of Conduct Bureau and the submission of
report orally to the said Chairman by PWIII are not ingredients of the
offence and are not relevant to the consideration of no case submission.
vii. The no case submission made by the Respondent was wrongly upheld by the Tribunal.
5. GROUND FIVEThe Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza when it held that the testimony of PWIII is hearsay evidence.
PARTICULARS OF ERROR
i. 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.
ii. The Tribunal failed to consider the
decisions of the Appellate Court in the cases of Ekpo .v. State (2001) 7
NWLR (Pt. 712) 292 at 304,Ugwumba .v. State (1993) 5 NWLR (Pt. 296)
660 at page 668 cited before it by the prosecution that the testimony of
an investigator on the report of his investigation is not hearsay
evidence.
iii. The Tribunal failed to be bound by the judicial precedent of a superior court of record.
iv. The Tribunal failed to consider
paragraphs 11 (2), (3) and (13) of Part 1, 5th 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.
v. The evidence of PWIII is not hearsay evidence
6. GROUND SIX The Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza when it held that:
“Turning and making reference to ‘the
team’ referred to in the evidence of PW3, ‘the team’ so constituted is
unknown to law and never contemplated by the Act under which the
Defendant is being tried. ‘The team’ is made up of CCB, the DSS and EFCC
according to the testimony of PW1 in the course of cross examination.
The combined effect of the inadmissible evidence and the illegality of
the team that investigated the Defendant is that the charge is incurably
defective, has occasioned a miscarriage of justice, and permeates
throughout the entire proceedings in this case. Hearsay evidence
according to a plethora of judicial authorities is not admissible for
the purpose of establishing criminal liability. See the case
of Buhari .v. Obasanjo (2005) ALL FWLR (pt.273) 1. It is trite law that
the evidence acquired to establish a crime must be evidence of a witness
who saw or heard or took part in the transaction upon which he was
giving evidence.”
PARTICULARS OF ERROR
i. Hon. W. A. Agwadza found that the
investigation by a team consisting of the Code of Conduct Bureau, EFCC
and DSS is unknown to law and cannot form the basis ofthe trial of the
Respondent.
ii. The Respondent by his own application
dated 1st 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.
iii. The Tribunal by its ruling delivered
on 24thMarch, 2016 ruled and dismissed the application of the
Respondent and he appealed to the Court of Appeal in Appeal No:
CA/A/172C/2016.
iv. 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.”
v. 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.
vi. The decision of the Court of Appeal
in Appeal No: CA/A/172C/2016 between Dr. Olubukola Abubakar Saraki .v.
FRN, is binding on the Code of Conduct Tribunal.
vii. Hon. Agwadza refused to be bound by
the decision of the Court of Appeal notwithstanding that the prosecution
in paragraphs 8.44 – 8.47 of its address referred the Tribunal to the
said decision.
viii. The decision of Hon. Agwadza borders on judicial rascality and impertinence.
7. GROUND SEVENThe Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza, when it held that the Appellant failed to produce the original asset declaration forms of the Respondent and his statement (Exhibits 1 to 6, 26 and 45) when they were available and as such there is no case made out against the Respondent.
PARTICULARS OF ERROR
i. The Tribunal raised the issue of
tendering certified true copy of the asset declaration forms of the
Respondent and his statement as against the original of those
exhibits, suo motuand resolved the issue against the Appellant without
hearing the Appellant.
ii. The Tribunal denied the Appellant its
right to fair hearing as guaranteed by Section 36 ofConstitution of the
Federal Republic of Nigeria, 1999 (as amended).
iii. Exhibits 1 to 6, 26 and 45 qualify as
public document under Section 102 of the Evidence Act, 2011 and there
is no law that makes only the original of public document admissible in
law.
iiii. 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.
v. The Tribunal is mandated under the
provision of Section 146 of the Evidence Act, 2011 to presume
the genuiness of certified true copy of a public document.
vi. The Tribunal effectively overruled the
decisionsof 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.
vii. 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.
8. GROUND EIGHTThe Code of Conduct Tribunal erred in law in its ruling delivered by Hon. W. A. Agwadza, when it held that the Appellant failed to respond to seven issues raised by the Respondent in his submission of no case and therefore the Appellant is deemed to have admitted the issues
PARTICULARS OF ERROR
i. The Tribunal failed to read and
consider the written address of the prosecution and this led to the
erroneous conclusion that the prosecution did not respond to the said
issues.
ii. The prosecution proffered sufficient
arguments against the arguments canvassed by the Respondent in respect
of the seven issues itemized by Hon. W. A. Agwadza.
iii. The Respondent in his address on
points of law knew that the Appellant addressed, the so-called seven
issues and gave his response on points of law to the prosecution’s
address.
iv. The decision of the Tribunal that the
Appellant is presumed to have conceded the seven points raised by the
Respondent showed that the Tribunal was biased against the prosecution
and denied the prosecution the right to fair hearing.
9. GROUND NINEThe 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.
PARTICULARS OF ERROR
i. 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.
ii. By the provisions of paragraphs 11
(2), (3) and (13) of Part 1, 5th 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 he did not commit
the offences.
iii. The paragraph in the Constitution
referred to above clearly puts the onus of proof on the
Defendant/Respondent to show that there is no infraction.
iv. The presumption of innocence
guaranteed by section 36 (5) of the Constitution, by its proviso
recognizes paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to
the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
that has placed the onus of proof on the public officer.
v. The paragraphs 11 (2), (3) and (13) of
Part 1, 5th Schedule to the Constitution of the Federal Republic of
Nigeria, 1999 (as amended) prescribe strict liability offences that
clearly remove the proof of mens rea by the prosecution.
vi. The Tribunal failed to give effect to
paragraphs 11 (2), (3) and (13) of Part 1, 5thSchedule to the
Constitution of the Federal Republic of Nigeria, 1999 (as amended).
10. GROUND TENThe Code of Conduct Tribunal erred in law in entertaining and upholding a no case submission raised by the Respondent at the close of prosecution’s case when the onus of proof is on the Respondent to show that there was no infraction in the Code of Conduct Forms filled and sworn to by him before a High Court Judge.
PARTICULARS OF ERROR
i. By the provisions of paragraphs 11 (2),
(3) and (13) of Part 1, 5th 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 was no infraction
in the form.
ii. The Honourable Tribunal wrongly placed
the onus of proof on the prosecution contrary to paragraphs 11 (2), (3)
and (13) of Part 1, 5thSchedule to the Constitution of the Federal
Republic of Nigeria, 1999 (as amended).
iii. 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 wrong applied the presumption of
innocence contrary to the constitutional requirement.
iv. The presumption of innocence
guaranteed by section 36 (5) of the Constitution, by its proviso
recognizes paragraphs 11 (2), (3) and (13) of Part 1, 5th Schedule to
the Constitution of the Federal Republic of Nigeria, 1999 (as amended)
that has placed the onus of proof on the public officer or the
defendant.
v. The Tribunal’s decision is unconstitutional and without jurisdiction.
11. GROUND ELEVENThe Judgment of the lower Tribunal is unwarranted, unreasonable and against the weight of evidence.
…………………………….…………………………
Prosecutor Prosecutor
ROTIMI JACOBS, SAN PIUS AKUTAH, ESQ.
Assistant Chief State Counsel
Dated this ………………………… day of ……………………………… 2017.
PARTICULARS OF TRIAL
1. Date of trial and ruling: 14th June, 2017.
2. In what Court tried? The Code of Conduct Tribunal, holden at Abuja.
3. In what Court of Appeal? Court of Appeal, Abuja.
4. Sentence: Not applicable (ruling on a no case submission).
5. Reliefs: An order setting aside the ruling of the Code of Conduct Tribunal delivered on14th June, 2017 upholding the no case submission raised by the Respondent at the close of the prosecution’s case. An order calling upon the Respondent to enter hisdefence.
PERSONS DIRECTLY AFFECTED BY THIS APPEAL
1. FEDERAL REPUBLIC OF NIGERIA C/O THE PROSECUTORS
ROTIMI JACOBS, SAN
PIUS AKUTAH, ESQ.
FEDERAL MINISTRY JUSTICE,
FEDERAL MINISTRY OF JUSTICE COMPLEX,
CENTRAL BUSINESS DISTRICT,
ABUJA.
2. DR. OLUBUKOLA ABUBAKAR SARAKI C/O HIS COUNSEL
KANU G. AGABI, (CON), SAN
KANU G. AGABI & ASSOCIATES.
MABUSHI-ABUJA.
Senate President Bukola Saraki
Comments
Post a Comment