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 TWO
The 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 THREE
The 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 FOUR
The 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 FIVE
The 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 SEVEN
The 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 EIGHT
The 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 NINE
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.
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 TEN
The 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 ELEVEN
The 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 any 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 his defence.
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.
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