Harassed by influential Nigerians, judiciary resorts to doublespeak

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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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