Courts continue to lean on doublespeak when politically-exposed and influential Nigerians approach them for protection from arrests, investigations and other pre-trial procedures, ADE ADESOMOJU reports
On July 17, 2016, the National Judicial Council, in a statement by its Acting Director (now Director) Information, Mr. Soji Oye, said that the Council headed by the then Chief Justice of Nigeria, Justice Mahmud Mohammed, had sent Justice Mohammed Yunusa of the Federal High Court in Abuja on a compulsory retirement.
Oye disclosed that the NJC took the decision during its 77th meeting held on July 15, 2016.
Just before the NJC’s decision, Justice Yunusa had been accused of receiving bribe from a Senior Advocate of Nigeria, Mr. Rickey Tarfa. But that was not the reason for the sanction.
In July 2017, the Economic and Financial Crimes Commission, charged Justice Yunusa with offences bordering on the bribery allegation. But the NJC, in its statement announcing the compulsory retirement of the judge, said Yunusa was sanctioned because he made orders restraining the EFCC, the Independent Corrupt Practices and other related offences Commission and other law enforcement agencies from investigating Oduah and some other persons.
The council said that Yunusa’s decisions restraining the law enforcement agencies from carrying out their constitutional duties contravened the judgment of the Court of Appeal in A.G Anambra State Vs UBA, which he quoted but did not apply in his rulings.
The judge was also alleged to have violated Section 46 (1) of the 1999 Constitution of Nigeria (as amended) by assuming jurisdiction on Oduah’s case in Lagos, whereas the applicant complained of an alleged infringement of the applicant’s right which occurred in Abuja.
The statement listed seven cases in which Justice Yunusa was said to have violated the principle judicial precedent.
The cases were listed as “FHC\\L\\CS\\1471\\2015:- between Simon John Adonimere & 3 Ors Vs. EFCC; FHC\\L\\CS\\477\\14:- FRN V Michael Adenuga; FHC\\L\\CS\\1342\\15:- Senator Stella Odua Vs. AG Federation, EFCC, ICPC & IGP; FHC\\L\\CS\\1285\\15:- Jyde Adelakun & Anor Vs. Chairman EFCC & Anor; FHC\\L\\CS\\1455\\15:- Dr Martins Oluwafemi Thomas Vs. EFCC; FHC\\L\\CS\\1269\\15:- Hon Shamsudeen Abogu Vs. EFCC & Ors; and FHC\\L\\CS\\1012\\15:- Hon. Etete Dauzia Loya Vs. EFCC.”
The statement added, “That Hon. Justice Yunusa’s decision restraining the anti-graft agencies from carrying out their statutory functions in the first six cases mentioned earlier is contrary to the judgment of the Court of Appeal in A.G Anambra State Vs. UBA, which His Lordship quoted but did not apply in his rulings.”
Oduah had filed her fundamental rights enforcement suit asking the court to prohibit the Attorney-General of the Federation’s office, the EFCC, the police from “inviting, arresting, investigating or prosecuting” her over the purchase of two armoured BMW vehicles at a cost of N255m by the Nigerian Civil Aviation Authority under her watch as the Aviation Minister in 2013.
Justice Yunusa had granted the interim restraining order in favour of Oduah during the period he was assigned to sit as a vacation judge and to entertain urgent matters while other judges proceeded on their annual vacation.
At the end of the judges’ annual vacation, the suit was re-assigned to Justice Okon Abang, who was then sitting in the Lagos Division of the Federal High Court.
Justice Abang, in his judgment, delivered on February 17, 2016, struck out the case for want of territorial jurisdiction.
The judge had held that the suit ought to have been instituted in the Abuja Division of the court, since the alleged violation took place in Abuja.
Oduah then proceeded to refile the suit in the Abuja Division of the court.
But a similar fate befell the suit when Justice Abdukadir Abdu-Kafarati, in his judgment delivered on October 5, 2016, upheld the objection raised by the respondents to the suit and, this time round, dismissed it.
Justice Abdu-Kafarati held that the court lacked the requisite jurisdiction to hear the case because the prayer sought in it was outside the ambit of Chapter 4 of the Constitution, which captured the enforceable rights of persons.
He also held that that no court had the power to stop security agencies from carrying out their lawful duty of investigation.
He said it was in the interest of persons suspected of crimes to be invited by the investigating agency so that the suspect could give his or her own side of the story.
Oduah had urged the court to declare that, having earlier been exonerated, any further investigation, arrest, harassment and prosecution of her person in relation to the same issue, amounted to the invasion of her fundamental right to personal liberty, freedom of movement and to be presumed innocent until proved guilty.
Fair, unfair pre-trial process
Oduah is only one among many politically-exposed and influential Nigerians who had resorted to seeking judicial cover from arrest and prosecution on the grounds of alleged unfair investigative and other pre-trial procedures. Some had even sought to end an ongoing trial by raising the red flag of breach of rights in the procedures leading to the filing of the charges against them.
Capital Oil and Gas Limited and its Managing Director, Mr. Ifeanyi Ubah, went to court, as Oduah did, when sometime in 2012, they were faced with allegations of complicity in a N43.29bn fraud perpetrated through the petroleum subsidy scheme.
The Presidential Committee on the Verification and Reconciliation of Subsidy Payments to Petroleum Marketers had raised questions about the payment of about N43.29bn as petroleum subsidy to Ubah and his firm.
The presidential committee and two preliminary reports by the Police Special Fraud Unit, ‘D’ Department, Force CID, Lagos, claimed that the payments to Ubah and Capital Oil were suspicious.
But Ubah and his firm resorted to a court action praying that the presidential committee’s report be set aside on the grounds that the composition of the presidential committee was unfair to them.
They alleged that a former Managing Director of Access Bank Plc, Aigboje Aig-Imokhuede, who was the chairman of the presidential committee and another member of the board of Access Bank, Cosmas Maduka, would never be fair to them in their investigation because they (Ubah and Capital Oil) had had financial disputes with their bank (Aig-Imokhuede and Cosmas’) Access Bank).
The Federal High Court in Lagos agreed with the plaintiffs and in a judgment delivered on February 18, 2013, quashed the report of the presidential committee.
But the police on February 28, 2013 issued the third report, which this time round, exonerated Ubah and his firm.
An ad-hoc committee of the House of Representatives also gave Ubah and Capital Oil a clean bill of health in its report of April 18, 2012.
Also, the Office of the Attorney-General of the Federation, in a letter of legal advice dated October 17, 2014 and issued to the then Chairman of the EFCC and the Inspector-General of Police, exonerated Ubah and his company.
The EFCC Chairman then issued a report dated February 25, 2015 confirming that Ubah and his firm had no case to answer with respect to the N43bn transactions.
Armed with these documents and the judgment of the Federal High Court, Lagos quashing the report of the presidential committee, Ubah and his firm filed another suit in the Abuja Division of the court, praying for orders restraining the EFCC and the AGF from arresting or prosecuting them with respect to the subsidy transactions.
Meanwhile, the Court of Appeal in Lagos later set aside the judgment of the Lagos Division of the Federal High Court.
But, like Oduah, Ubah and Capital Oil anchored their prayers in their fresh suit filed before the Federal High Court, Abuja, on the grounds that they had been cleared by the House of Representatives, the police and even the AGF.
The EFCC and the AGF jointly appealed against the judgment of the court.
A unanimous judgment of a three-man bench of the Court of Appeal in Abuja, delivered on May 12, 2017, upturned the decision of the Federal High Court, Abuja.
The three-man panel of the Court of Appeal headed by Justice Tinuade Akomolafe-Wilson ordered that the EFCC could go ahead to probe Ubah and his firm and prosecute them if necessary.
Justice Emmanuel Agim, who prepared the lead judgment of the Court of Appeal, nullified the July 25, 2013, verdict of Justice Abdukadir Abdu-Kafarati of the Federal High Court in Abuja, who had made an order of perpetual injunction restraining EFCC, the Inspector-General of Police and the AGF, from prosecuting Ubah with respect to the subsidy fraud allegations.
The Federal High Court in Abuja had, apart from granting a perpetual restraining order against the law enforcement bodies, also awarded N10m as damages against the three of them for “the injury suffered” by Ubah and his company “as a result of the unlawful acts of the respondents including the breach of the first applicant’s fundamental right to liberty”.
Justice Agim, in the lead judgment of the appeal court, nullified all of Justice Abdu-Kafarati’s orders, including the one quashing the November 3, 2012 interim investigation report of the Aigboje Aig-Imoukhuede-led Presidential Committee on Verification and Reconciliation of Subsidy Payments to Petroleum Marketers.
He held that by virtue of the Aig-Imoukhuede committee’s report and the first two reports made by the Commissioner of Police in charge of Special Fraud Unit, ‘D’ Department of the Force Criminal Investigation Department, Mr. Tunde Ogunsakin, “there was a reasonable basis for the suspicion of the first and second respondents (Ubah and Capital Oil) of committing the said offences.”
Abuse of injunction
The Court of Appeal, in Ubah’s case, looked at the issues deeply.
Justice Agim noted in the lead judgment that “the fuel subsidy fraud involved corruption and fraud on a very massive scale” and that it involved many oil companies and officials of government’s regulatory agencies.
He observed that the scam resulted in “the looting and stealing of trillions of naira from the Federal Government of Nigeria and threatening the security and economy of Nigeria”.
He held that, despite this, Justice Abdu-Kafarati of the Federal High Court in Abuja had granted Ubah’s application for fundamental human rights “in such a manner as to prevent or frustrate investigations into the scam”.
He said that the trial court issued injunctions in Ubah’s case to stop ongoing process and prevent even future process “without regard to the very serious nature of the crime alleged” and its “far-reaching destructive effect on the society”.
Justice Agim held that such suit by Ubah and his company was pre-emptive of “due legal process”, constituted a gross abuse of legal process and it was “not a legitimate or genuine use of the court process”.
In upholding the joint appeal by the EFCC and the Attorney-General of the Federation against the Federal High Court’s judgment, Justice Agim held that the enforcement of a person’s rights must not be used or allowed to shield the person from “the due process of criminal law”.
Discordant tunes on accused person’s statement
The Court of Appeal, Abuja, while intervening in the issues arising from the trial of the Senate President, Dr. Bukola Saraki, before the Code of Conduct Tribunal, also down-played the emphasis on influential Nigerians usually placed on pre-trial procedures when seeking a cover from trial at all cost.
For instance, a five-man panel of the Court of Appeal led by Justice Abdu Aboki, in its judgment delivered on October 27, 2016, held that the CCT, contrary to Saraki’s contention, had not violated any judicial precedent by affirming its jurisdiction to hear the trial without the defendant’s statement included in the proof of evidence.
Justice Aboki, who delivered the lead judgment, held that it was “out of place to contend that the failure of a defendant to make a written admission deprives a court or tribunal the jurisdiction to entertain a criminal matter placed before it.”
But, in his contribution to the judgment of the CCT delivered on June 14, 2017, which dismissed all the 18 counts that the Federal Government filed against Saraki, a co-member of the tribunal’s two-man panel, Williams Agwadza, dismissed the charges on the basis of the alleged failure of the prosecution to obtain Saraki’s statement and made it to be part of the proof of evidence.
This, Agwaze said, was fatal to the prosecution’s case, although the Court of Appeal had ruled otherwise.
In Agwaza’s view, the Saraki statement tendered by the prosecution as Exhibit 45 was unacceptable because none of the witnesses made reference to it in their oral evidence, despite that it was made two years before the EFCC and CCB operatives testified.
He said, “The statement of the defendant is, perhaps, the only initial document that will show and/or establish fairness in the process.”
This stand negated the words of Justice Aboki who held in the October 27, 2016 judgment that an accused person was not under obligation to make a statement before trial.
“An accused person or defendant is entitled to reserve his statement until when he gives evidence in his own defence (if he so choses) at the trial,” the appeal court ruled.
Invitation and non-invitation
In its judgment on October 27, 2016, the Court of Appeal ruled that it was unnecessary for the CCB to invite Saraki before charges were instituted against the Senate President.
“There is nothing in section 3(d) of the CCBT Act making it mandatory for the Code of Conduct Bureau to give any pre-action notice to the appellant or making it compulsory for the Code of Conduct Bureau to invite any public officer, including the appellant, to make a written statement admitting or denying the allegation against him,” Justice Aboki ruled.
But several months later, the CCT chairman, Danladi Umar, in his lead judgment dismissing the charges against Saraki, held that “Where a person is being investigated, especially by a commission like EFCC, it behoves on the commission to invite the defendant so that the truth of the matter can be established.”
Joint investigative team
On May 9, 2017, Justice Gabriel Kolawole of the Federal High Court, in Abuja, declared as illegal the Special Joint Investigative Panel set up by the Inspector-General of Police, Ibrahim Idris, to investigate the crimes allegedly committed during the re-run elections that took place in Rivers State on December 10, 2016.
Delivering judgment in the suit filed by Governor Nyesom Wike to challenge the validity of the joint investigative panel by the Inspector-General of Police, Justice Kolawole held that the panel was illegal because it was comprised by not just police officers but by officers of the Department of State Service who were not answerable to the IGP.
The judge held, “It is obvious by this provision (section 3(2)(a) of the National Security Agencies Act) that the officers of the second defendant (Department of State Service) co-opted by the first defendant (IGP) into the 15-man ‘Special Joint Investigative Panel’ are not responsible to the first defendant (IGP).
“So, how did the first defendant come by this contraption which, as far as these provisions which I have examined are concerned, is unknown to the Nigerian Criminal Justice System?”
About a month later, when the CCT dismissed the charges against Saraki, on July 14, 2017, the co-member of the tribunal, Agwadza, described the team that investigated Saraki as illegal on the grounds it was not exclusively composed of officers of the Code of Conduct Bureau.
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