Senate President Bukola Saraki is now heading for the Supreme Court after the Court of Appeal in a split judgment, dismissed his appeal challenging both the jurisdiction of the Code of Conduct Tribunal and the propriety of the 13-count charge filed against him at the tribunal by the Federal Government.
It was a split judgment that witnessed a sharp division among the Justices of the appellate court who sat on the appeal. While the presiding Justice, Justice Moore Adumein with his brother Justice, Mohammed Mustapha dismissed the appeal for lack of merit. Justice Joseph Ekanem on the other end dissented and declared the charge against Saraki at the tribunal as incompetent.
Justice Ekanem in his dissenting judgment quashed the charge and discharged Saraki on the grounds that that the Deputy Director at the Ministry of Justice, Musiliu. S. Hassan who signed the charge, did not specify who authorized him to initiate the criminal proceedings at the tribunal.
“A look at the charge showed that Mr. Hassan instituted the action pursuant to section 24 of the Code of Conduct Bureau and Tribunal Act, 2004 which permits only the Attorney General of the Federation to initiate criminal proceedings”.
Justice Ekanem further held that though the constitution permits the Solicitor-General of the Federation [SGF], to commence criminal action in the absence of the AGF, he said that Hassan the Deputy Director at the Ministry of Justice failed to produce any document showing that he was properly authorised by the SGF.
“The opening paragraph of the letter Hassan sent to the CCT on September 11, wherein he applied to commence trial against the appellant is very instructive.
“He merely said ‘I am authorised to file this action’ but did not say that he was authorized by the Solicitor-General. He went short of identifying who authorised him.
“It is therefore my view that the charge before the tribunal is incompetent. It is for this view that I hold that this appeal has succeeded and I hereby set aside the charge and discharge the accused person”, Justice Ekanem held.
But in the concurrent judgment of Justice Adumein and Mohammed Mustapha, they held that M S Hassan, being an officer in the temple of justice and a member of the Bar, could not have initiated the trial without the authority of the appropriate person.
The two justices said that the tribunal was right in assuming jurisdiction in the matter because the chairman of the tribunal and member have no cause to disbelieve M. S Hassan on whether he has the authority of Solicitor General or not, having come from the federal ministry of justice as a deputy director.
They also dismissed the claim of Saraki that his trial was unlawful having not been initiated by the person of the AGF, adding that the law officers of the federation Act was clear that in the absence of the AGF, the Solicitor General of the federation may assume the function of the office of the AGF.
“Section 24 [2] of the Code of Conduct Bureau and tribunal Act, 2004 provides that prosecutions for all offences shall be instituted in the name of the Federal Government by the Attorney General of the Federation [AGF] or any other officer in his office. The absence of a sitting AGF the Solicitor General of the Federation [SGF] may perform his duties as imposed by law.
“The information by M. Hassan attached to the charge before the tribunal clearly shows that he was authorized to institute the case by the Solicitor General of the Federation and there was no basis for the tribunal to disbelieve him.
“The Solicitor General of the Federation while performing his functions can also authorize any officer in his office to perform the functions of the AGF.”
The court relied on the case laws in AGF v Atiku Abubakar [2010], AGF V Atiku [2007]; AGF v ANPP [2003] to support the position that indeed the duties of the AGF can also be performed by any other officer in his office.
They also dismissed another claim of Saraki that the tribunal did not form quorum of three membership as the Justices noted that although, the constitution was silent on the quorum but the interpretation Act, a veritable legal tool has smoothly settled the matter with a provision that two members can sit in any tribunal matter.
The court however held that once the chairman of the tribunal is present with another member, the quorum of the tribunal has been constituted.
On the suit pending before the Federal High Court, the appellate court held that “the Federal High Court did not make any order asking the tribunal to stay proceedings. Since there was no such order, other issues arising therefrom are mere academic exercise and courts are warned not to waste its precious time on academic matters.”
On the issue of criminal jurisdiction of the tribunal, the Court of Appeal held that the tribunal has limited jurisdiction on criminal matters including the powers to compel appearance through the issuance of bench warrant.
They dismissed the appeal on all five grounds and ordered that he should go back to the Tribunal to face his trial.
Saraki had challenged the legality of his arraignment at the Code of Conduct Tribunal by the Code of Conduct Bureau (CCB) over allegation of false declaration of his assets.
His lead counsel, Joseph Daudu, while moving his case, raised five issues for determination of the court, one of which is the call for the determination of the legality of the trial of Senator Saraki at the Code of Conduct Tribunal.
Daudu argued that the tribunal erred in law by proceeding with the trial with two members instead of mandatory three as provided by the constitution, adding also that the composition of the tribunal during Saraki’s trial violated paragraphs 15(1) of the 1999 constitution by sitting with two members instead of three and asked the court to nullify the CCT proceedings for not forming a quorum.
The appellant counsel disagreed with the arguments of Rotimi Jacobs (SAN), counsel representing the federal government that the Interpretation Act can be used to resolve the constitutional logjam since the constitution was silent on the quorum for the tribunal’s membership.
Daudu said: “To ask that the Act of Interpretation be used to override constitutional provision is wrong and unheard off. That, it will amount to product of mis-interpretation because the constitution is the supreme law and not an Act”.
He also argued that the tribunal was wrong in assuming criminal jurisdiction against the Senate President when it was not a superior court of record and added that the tribunal cannot assume concurrent jurisdiction with the federal high court as the code of conduct tribunal was by law, inferior to the federal high court.
Daudu therefore urged the appeal court to nullify the proceedings of the tribunal against Saraki and to also set aside the criminal charges filed against him by the federal government on account of being illegal and unlawful.
Opposing the submissions of Saraki’s counsel, the federal government through its counsel, Rotimi Jacobs asked that the appeal case be dismissed for lacking merit.
Jacobs told the 3-man appeal court panel that the constitution was silent on the quorum of the tribunal membership and urged the court to invoke the Interpretation Act to resolve the issue in favour of the respondent.