morhs margazine: Saraki’s case: CJN to set up fresh Supreme Court panel

THE Chief Justice of Nigeria, Justice Mahmud Mohammed, is set to set up a fresh panel that will hear the appeal filed by Senate President Bukola Saraki, challenging the jurisdiction and competence of the charges by the Code of Conduct Tribunal over alleged false asset declaration preferred against him.

Our correspondent learnt on Wednesday that the CJNwas set to disband the Justice John Fabiyi-led five-member panel which on November 12, 2015, granted an order of a stay of proceedings in the Senate President’s trial before the CCT.

A valedictory court session is to be held for Justice Fabiyi, who attains the retirement age of 70 on November 25, 2015, his birthday.

Other Justices of the Supreme Court, who are on the panel with Justice Fabiyi, are Justices Suleiman Galadima, Kudirat Kekere-Ekun, John Okoro and Amiru Sanusi.

The decision to disband the panel, according to judiciary sources, is partly due to the outcry generated by the Supreme Court’s ruling and the imminent retirement of Justice Fabiyi from the bench on November 25.

Eminent lawyers, including Prof. Itse Sagay (SAN), Chief Folake Solanke (SAN), Chief Adegboyega Awomolo (SAN), Mr. Femi Falana (SAN), Jiti Ogunye and Malachy Ugwummadu, had described the Supreme Court’s ruling as contravening provisions of sections 306 and 369 of the new Administration of Criminal Justice Act.

The ACJA prohibits granting of a stay of proceedings in criminal cases.

Sources said the CJN, who was on an official trip abroad when the Supreme Court’s ruling was delivered on November 12, would likely head the fresh panel to be constituted.

It was learnt that Mohammed might head the fresh panel that would be constituted due to a number of contentious issues in the appeal filed by Saraki in his appeal.

A source said, “With the public interest in the case and coupled with the retirement of Justice Fabiyi next week Wednesday, the panel has to be disbanded.

“It is the practice of the Supreme Court that when a number of contentious constitutional issues are raised in an appeal such as this one (Saraki’s case), the CJN is likely to head such appeal panel.”

The media aide to the CJN, Mr. Ahuraka Isah, said he was not in a position to confirm the development.

“There is no way I can know what has happened or what will happen. It is strictly a judicial issue that cannot come within my knowledge,” Isah, who spoke to our correspondent on Wednesday, said.

With the order of a stay of proceedings by the Supreme Court, the CCT, which had on November 5, adjourned till November 19 for the commencement of Saraki’s trial, must await the decision of the apex court on the Senate President’s main appeal.

Saraki, through his lawyers, led by Mr. Joseph Daudu (SAN), had appealed to the Supreme Court to challenge the September 30, 2015 judgment of the Court of Appeal, which affirmed that the 13 counts of false asset declaration preferred against him before the CCT were competent.

The appeal court also affirmed that the Justice Danladi Umar-led CCT had the required jurisdiction to entertain the charges against the Senate President.

All the arguments by Saraki’s lawyers against the jurisdiction of the CCT and competence of the charges preferred against him before the tribunal were dismissed by a two-to-one split judgment of the Court of Appeal.

But the issues dismissed by the Court of Appeal form Saraki’s seven grounds of appeal, which his lawyers filed before the Supreme Court.

Following an application by Saraki’s lawyers for the appeal to be heard by the full panel of the Supreme Court, the number of Justices in the fresh panel will likely increase from five to seven.

The full panel of the Supreme Court comprises seven Justices as against five that were in the old panel.

Part of the appellant’s grounds of appeal to be finally decided by the apex court are whether the proceedings of the CCT, which sat with only two members as against the three provided for in the provisions of Paragraph 15(1) of the Fifth Schedule to the 1999 Constitution, are competent.

The appellant also faulted the majority decision of the appeal court, where it held that there was a lacuna regarding the quorum of the tribunal.

The Supreme Court will also decide whether the CCT is a court of limited criminal jurisdiction as held by the Court of Appeal. Meanwhile, a Lagos-based lawyer, Johnson Esezoobo, has called on the CJN to review the granting of a stay of proceedings in the trial of the Senate President at the tribunal.

A statement by Esezoobo on Tuesday described the decision by the Supreme Court as an abuse of and misuse of power, advising that “institutional safeguards should be put against abuse and misuse of power”.

He said, “From the provisions of the constitution, it is absolutely not a difficult issue to resolve except that the remedy available is not what we have been used to in our democratic practice.

“If it is agreed that when an illegality is committed, it must be redressed, we must also find out how to go about it under the constitution.”

According to Esezoobo, the order in the Saraki’s case marked the first time the apex court would commit an illegality, adding that the illegality this time round concerned a vexed national issue agitating the minds of the populace.

Esezoobo added, “I sincerely believe that the President as the Head of State and Chief Executive of the Federation, by virtue of Section 130 of the constitution, has the power to express concern and call on the CJN to explain what happened.

“He can do this through the Office of the Attorney-General of the Federation as the chief law officer of the state. In his capacity, the President as the chief executive can, through the AGF, direct the Federal Judicial Service Commission or the National Judicial Council, both as Federal Executive bodies under the Third Schedule to the Constitution, to query all the justices of the Supreme Court involved in this scandalous illegality.”

A Senior Advocate of Nigeria, Chief Mike Ozekhome, has however, faulted the criticisms trailing the order of a stay of proceedings granted Senate President Bukola Saraki by the Supreme Court on his false asset declaration trial.

Ozekhome described the criticisms of the order by human rights lawyer, Femi Falana (SAN), and Chief Adegboyega Awomolo (SAN) as incredible “perverse interpretation” of the law, contending that the senior advocates “seek to bind the Supreme Court with the uninterpreted provisions of a law that only applies to trial courts”.

Ozekhome, in an opinion article titled ‘Awomolo-Falana’s comment – A case of unfortunate sentiments Vs law’, argued that Section 306 of the Administration of Criminal Justice Act, which states that “an application for a stay of proceedings in respect of a criminal matter before the court shall not be granted,” only applied to the trial court, and not to appellate courts.

“It ought to be noted that the trial of Saraki, which is currently before the CCT, is not before the Supreme Court of Nigeria. From the plain wording of section 306, the ACJA does not apply to the Supreme Court of Nigeria, or any other appellate court for that matter, but to the CCT,” he added.