Effect of Failure to Obtain the Statement of the Defendant And Make it Part of the Proof of Evidence in Offences under the Code of Conduct Bureau and Tribunal Act
In the Code of Conduct Tribunal
Holden at Abuja
On 8th Day of June, 2017
Delivered on Wednesday, the 14th Day of February, 2017
Before Their Lordships
Hon. Danladi Yakubu Umar – Chairman
Hon. Williams Atedze Agwadza – Member
Judges, Code of Conduct Tribunal
Charge No. CCT/ABJ/01/2015
Between:
Federal Republic of Nigeria … Complainant
vs
Dr. Olubukola Abubakar Saraki … Accused
(Lead Ruling delivered by Honourable Danladi Yakubu Umar, Chairman)
Facts
The Prosecution charged the Defendant
before the Code of Conduct Tribunal on eighteen (18) Counts. The first Count is for false declaration while he was the Governor of Kwara State at the end of which tenure in the year 2007, he refused to declare to the Code of Conduct Bureau through his assets declaration that he has interest in a property known as No. 1, McDonald Ikoyi, Lagos through a company known as Tiny-Tee Company Limited. This act was said to be in breach of Section 15(1) and (2) of the Code of Conduct Bureau and Tribunal Act as incorporated under Paragraph 18 Part 1 Fifth Schedule to the 1999 Constitution (as amended). Count two states that while the Defendant was the Governor of Kwara State, he made a false declaration on the 2nd day of June, 2011 in the Assets Declaration Form CCB1 at the end of his tenure as Governor of the state in 2011 by his failure to declare his interest in the property at No. 15, MacDonald Street, Ikoyi. Count three relate to false declaration in respect of the property known as No. 15A and B, McDonald, Ikoyi through a company called Carlisle Properties Limited.
By Count 4, the Complainant alleged that the Defendant falsified his Assets Declaration at the end of his tenure as Executive governor of Kwara State in 2011 and on assumption of office as a Senator in 2011. The Defendant falsely declared that he acquired No. 17A, McDonald, Ikoyi on 6th September, 2006 from proceeds of sale of rice and sugar. Count six reads that the Defendant failed to declare his outstanding loan liabilities of N315,054,355.92 obtained from Guarantee Trust Bank Plc. Count eight is to the effect that the Defendant failed to make a written declaration of his properties and assets to wit: cash lodgment of the sum of N77,000,000.00 in the Guarantee Trust Bank on 5th September, 2007. By Count nine, the Defendant was said to have made a false declaration refusing to declare his assets on Plot 2A, Glover Road, Ikoyi which was acquired between 2007 and 2008 through Carlisle Properties Ltd.
Counts ten and eleven contain allegations that the Defendant failed to declare the properties known as No. 1 and 3, Tagus Street, Maitama, Abuja on assumption of office as Governor in 2003. Count twelve relates to failure of the Defendant to declare No. 3, Tagus Street, Abuja acquired through Carlisle Properties Limited upon assumption of office for the second term in 2007. Count thirteen reads that the Defendant failed to declare the property, the mortgage of which was redeemed with the sum of £1,516,194.53 at the end of his tenure as Governor of Kwara State, which sum was transferred in three instalments from his domiciliary account with the Guarantee Trust Bank.
Count fifteen states that the Defendant, while being a Public Officer, operated a foreign bank account when he transferred the sum of $73,228.28 from his Guarantee Trust Bank account to the American Express Service Europe Limited for onward credit to his account in New York. Count sixteen is to the effect that the Defendant made a false declaration of his assets when at the end of his second tenure as the Governor of Kwara State, he failed to declare his interest in an American Express Card New York Card where he transferred an aggregate sum of $3,400.000 between August, 2009 and October, 2012. Count seventeen states that while Dr. Saraki was a Senator in Nigeria between June 2011 and October 2013, he received monthly salaries or emoluments as Governor of Kwara State. Count 18 reads that the Defendant made a false declaration in that he claimed to have owned substantial and controlling shares in Carlisle Properties Limited and Tiny-Tee Limited.
At the trial, the Prosecution called four witnesses who gave evidence on its behalf. The Defendant made a No Case Submission which was opposed by the Prosecution. The Tribunal ordered Counsel for the parties to file written submissions and addresses. A
Issues for Determination
- What is a submission of No-case to answer and when can it be made or upheld?
- Whether at the close of the Prosecution’s case, a prima facie case sufficient enough to call on the Defendant on record to enter his defense has been made.
Arguments
Counsel for parties made copious references to various authorities on the meaning of a No Case Submission and when same can be made.
On the second issue, Counsel for the Prosecution referred to Paragraph 11(2) of Part 1, 5th Schedule to the Constitution of the Federal Republic of Nigeria, 1999 (as amended) under which the Defendant is tried. Counsel stated that the Section 15(2) of the Code of Conduct Bureau and Tribunal Act and the Paragraph referenced above do not prescribe any offence or crime but merely created a presumption against a party who made a false statement. Thereby tacitly conceding that no offence has been committed as submitted by Counsel for the Defendant.
Court’s Judgment and Rationale
By the provisions of Sections 302 and 303 of the Administration of Criminal Justice Act, 2015 the court may, on its own motion or on an application by the Defendant, after hearing the evidence of the Prosecution, where it considers that the evidence against the Defendant or any of the several Defendants is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of the Defendant without calling on him or them to enter his or their defence and the Defendant shall accordingly be discharged and the court shall then call on track remaining Defendant, if any, to enter his defence. This statutory provision was given force in OKORO v. STATE (1988) NWLR (Pt. 94) 255 which was relied on by learned Counsel for the Defendant in this case. In IBEZIAKO v. COP (1963) 1 ALL NLR 61, it was held that a Submission of No-case to Answer may be properly made and upheld where:
- There has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially;
- The evidence adduced by the Prosecution has been so discredited as a result of cross-examination or manifestly unreliable that no reasonable Tribunal can safely convict upon it.
On the second issue which was the main issue before the Tribunal, it was observed that the 18 counts charge against the Defendant is predicated upon the Affidavit of PW3 – Mr. Samuel Madojemu – which was attached to the proof of evidence in support of the Prosecution’s case. By his testimony, PW3 stated that ” details of the outcome of investigations as highlighted in the affidavit by me were based upon information given to me by members of the team.” The Tribunal adjudged the foregoing testimony an epidemic which bedeviled the entirety of the Prosecution’s case. The summary of the evidence is that PW3 had no first hand knowledge of all he said and documents tendered. This is hearsay evidence in contravention of the provisions of Sections 37, 38 and 126 of the Evidence Act, 2011.
Hearsay evidence is inadmissible except as otherwise provided under any hearsay rule or other provisions of the Act. The affidavit evidence of PW3 is apparently inadmissible in law. Hearsay evidence is not admissible for the purpose of establishing criminal liability – BUHARI v. OBASANJO (2005) ALL FWLR (Pt. 273) 1. The evidence required to establish a crime must be that of the witness who saw or heard or took part in the transaction upon which he was giving evidence. Reference to “the team” in the evidence of PW3 so constituted is unknown to law and never contemplated by the Act under which the Defendant is being tried. The team team was made of the CCB, DSS and EFCC. The combined effect of the inadmissible evidence and illegality of the team that investigated the Defendant is that the Charge is incurably defective.
More importantly, the Prosecution did not obtain the Statement of the Defendant and make it part of the proof of evidence in the case. Undoubtedly, statement of the Defendant in response to the Petition is the foundation of his defence. Failure to have, keep and make the statement part of the proof of evidence is fatal to the case of the Prosecution. Since the burden of proof is on the Prosecution by Section 35(6) of the 1999 Constitution, it will be fundamentally erroneous for the Tribunal to call on the Defendant to prove his innocence. The burden is static; it never shifts.
By the provisions of Section 303(3) of the Administration of Criminal Justice Act 2015, the guidelines for the success of a No-case submission were clearly provided for. The vital witnesses who should have been called in aid of the Prosecution’s case was called. This led to failure in linking the Defendant with commission of 4th e offences with which he was charged.
Counsel for the Prosecution having conceded that Section 15(2) of the Act and the Constitution do not prescribe any offence or crime but merely created a presumption against a party who made a false statement, it can be safely concluded that no offence has been committed by the Defendant and the Tribunal is at liberty to discharge and acquit him holding that no Prima favor case has been made out against him.
No Case Submission upheld; the Accused person was discharged and acquitted.
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