Can the Chairman and a member of the Code of Conduct Tribunal (CCT) legally conduct proceedings where the Constitution says it must be constituted by two members and a Chairman?
Was the CCT wrong to have assumed jurisdiction over the trial of Senate President, Bukola Saraki, charged with false asset declaration, without one of its members?
These are among the issues to be decided Friday by the Supreme Court as it delivers judgment in the appeal brought before it by Saraki.
Saraki’s appeal is against the October 30, 2015 judgment of the Court of Appeal, Abuja which dismissed an earlier appeal by Saraki with which he challenged the jurisdiction of the CCT to try him for alleged false declaration of assets.
Saraki was arraigned before the CCT on September 22 last year on a 13-count charge after much resistance for the Senate President, prompting the tribunal to issue a bench warrant for his arrest.
Although he pleaded not guilty to the charge, he subsequently challenged the power of the CCT to try him he challenged the composition of the tribunal and the legality of the charge, which he said was not endorsed by the Attorney general of the Federation (AGF).
In its judgment on October 30, a three-man panel of the appellate court, in a split decision of two-to-one held that Saraki’s appeal lacked merit.
Justices Moore Adumein (presiding) and Mohammed Mustapha resolved the six issues raised in the appeal in favour of the respondents including the CCT, while Justice Joseph Ekanem dissented on one issue, which was whether an official of the Federal Ministry of Justice was competent to endorse a charge in the absence of the Attorney General of the Federation (AGF).
While Justices Adumein (who read the lead judgment) and Mustapha dismissed the appeal, Justice Ekanem, in his dissenting judgment, upheld the appeal, discharged and quashed the Senate President’s trial before the CCT.
Justice Adumein, in the lead judgment, rejected all argument by Saraki, including his contention that the CCT, being an inferior body to the Federal High Court, ought not to have proceeded with his trial despite an order by the court.
He held that Sarakiks complaint about not being personally served with the charge “was of no moment having appeared and taken his plea before the tribunal.”
“On September 21, his counsel also appeared before the tribunal and made series of application without raising the issue of non-service,” Justice Adumein said.
On whether two of the CCT three members form a quorum, Justice Adumein, though noted that there was “lacuna” in the laws, held that “the Interpretation Act has resolved the has becomes a helpful piece of legislation” by providing that a member of the tribunal and its Chairman could validly sit and conduct proceedings.
Justice Adumein upheld the argument by respondents’ lawyer, Rotimi Jacobs (SAN), to the effect that by the provision of Section 28 of the Interpretation Act, two members of the tribunal (including the Chairman) form quorum to validly conduct its proceedings
He also held that by the provisions of Section 174(1) and (2) of the Constitution, where there is no substantive AGF, any law officer in the office of the AGF could validly file charges.
“M.S Hassan, a Deputy Director in the department of the AGF is eminently qualified to initiate criminal proceedings.
“The Solicitor-General of the Federation, in the absence of the AGF may perform any of the duties and shall have the same powers as are imposed by law on the AGF,” the judge said.
On the issue of the tribunal not being a court, Justice Adumein held that “there is no inherent difference between the tribunal and the court.”
He noted that “the terminologies and phrases used in the CCT Act, such as “arraignment”, “arrest”, “taking plea”, “guilty” and “conviction” are associated with criminal proceedings.
“The Code of Conduct Tribunal is a criminal court, albeit with limited jurisdiction,” he held.
“Having resolved all the issues against the appellant, I hold that the appeal lacks merit and it is hereby dismissed,” Justice Adumein said.
Justice Ekanem, who dissented on a single issue, held that the absence of Attorney-General of the Federation had made the charge to become defective.
He was of the view that the failure by M. S. Hassan (who endorsed the charge) to indicate who authorized him to file the charge, in his letter to the tribunal seeking leave to file the case, rendered the charge incompetent.
While arguing his client’s appeal before the Supreme Court on December 3, Saraki’s lawyer, Joseph Daudu (SAN), who said six issues were formulate for the court’s determination, argued that the CCT was wrong to have assumed jurisdiction over his client’s trial because it was not properly constituted.
He argued that by the provision of Paragraph 15(1) of the 5th Schedule to the Constitution, the CCT could only legally conduct its affairs where the Chairman sits with two members. He said it was only the Chairman and a member that sat in the trial of his client.
Daudu also argued that the CCT was not a court with the capacity to exercise criminal jurisdiction. He contended that having not been a court created under section 6 of the Constitution, it lacked the power to exercise the inherent jurisdiction of superior courts.
He also argued that the CCT, being an inferior court with the status of mere disciplinary body for erring public officers, cannot apply the Administration of Criminal Justice Act (ACJA) 2015 in its proceedings.
He urged the court to allow his client’s appeal and grant all his prayers.
Lawyer to the Federal Government, Rotimi Jacobs (SAN) urged the court to dismiss the appeal and uphold the majority decision of the Court of Appeal, to the effect that Saraki’s trial before the CCT, with two judges sitting out of three, was in order.
He argued that Paragraph 5(1) of the 5th Schedule to the Constitution only relates to the composition of CCT, but that the Constitution was silent on the number of members that constitute its quorum.
He said where such lacuna exits, it was for the court to recourse to the Interpretation Act for help. He said under the Interpretation Act, two member of a three-man tribunal form quorum and could legitimately conduct business.
Jacobs also argued that the CCT, being a body with limited criminal jurisdiction could apply ACJA 2015 in its proceedings. He contended that since the tribunal had applied the Criminal Procedure Act (CPA) and Criminal procedure Code (CPC) for its proceedings before the introduction of the ACJA, the new law, which replaces the CPC and CPA automatically, becomes an applicable law in the proceedings before the CCT.
As against Daudu’s argument that the enforcement of the Attorney general of the Federation (AGF) was necessary before a charge could be validly filed before the CCT, Jacobs argued that any officer in the office of the AGF could validly initiate proceedings before the CCT where there is no AGF in office.