Three Senior Advocates of Nigeria have described as illegal the order of the Supreme Court, granting an application for a stay of proceedings in the trial of Senate President Bukola Saraki, who is being tried by the Code of Conduct Tribunal for false asset declaration.
The SANs contended that the concept of a stay of proceedings, which the Supreme Court granted to stop the trial of Saraki at the CCT, was abolished on May 13, 2015, when the then President Goodluck Jonathan signed the Administration of Criminal Justice Bill into law.
Human rights lawyer, Mr. Femi Falana (SAN), noted that the two chambers of the National Assembly had passed the bill to modernise the nation’s criminal justice system.
“In particular, the law has abolished stay of proceedings and interlocutory appeals by merging all preliminary objections with the substantive case in any criminal case instituted in a federal court in the country. The revolutionary intervention of the law was occasioned by the unending trial of politically-exposed persons in corruption cases,” Falana said in a statement on Sunday.
Falana, among other cases, cited the trial of Mohammed Abacha against the Federal Government, which was stalled for 12 years “on account of the preliminary objections raised and argued from the high court to the apex court by the defence counsel, Mr. J. B. Daudu SAN.”
The senior advocate added, “At the end of the ‘Israelite’s journey’, the Supreme Court ordered that the trial be commenced de novo at the federal capital territory high court. Having been completely frustrated in the circumstance, the Federal Government was compelled to discontinue Mr. Abacha’s corruption charge involving the theft of N664bn under the pretext that the case would be ‘amicably’ resolved!”
He equally cited the case of Major Hamza Mustapha, a former Chief Security Officer to the late military dictator, Gen. Sani Abacha, who was arraigned by the Lagos State Government for the murder of Alhaja Kudirat Abiola, the wife of the acclaimed winner of the June 12, 1993 presidential election, Chief Moshood Abiola.
He argued that lawyers for the accused also employed stay of proceedings to push the case for the lower court to the apex court, ensuring that the case was not concluded until after 13 years “on account of several preliminary objections and interlocutory appeals”.
Falana argued that granting the stay of proceedings in Saraki’s trial at the CCT by the Supreme Court on Thursday last week, had become illegal and had turned back the hand of the clock with the enactment of the AJCA by the Seventh Senate.
He said, “With the enactment of the AJCA, the suspension of criminal cases by all accused persons has been effectively stopped in Nigeria. Therefore, any judge, who orders a stay of proceedings in any criminal trial, does so illegally and is liable to be sanctioned by the National Judicial Council.
“It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizarre manner. Given the ouster clause contained in section 306 of the AJCA, the Code of Conduct Tribunal ought not to have delivered its ruling in respect of the preliminary objections filed by Dr. Saraki. The ruling should have been read together with the judgment after the conclusion of the trial. It was the premature ruling of the Tribunal which led to the filing of an interlocutory appeal in the matter.
“Instead of declining jurisdiction to entertain the interlocutory appeal that has been abolished by the AJCA, the Court of Appeal ordered a suspension of the trial at the Code of Conduct Tribunal to await its decision. Although the Court of Appeal eventually dismissed the appeal, the trial of the substantive case at the CCT has been further halted by the Supreme Court, which has granted another stay of proceedings pending the hearing of the interlocutory appeal filed before it by the accused person.
“However, it is sad to note that in granting the order of stay of proceedings in the case, the apex court ignored the provisions of sections 306 and 396 of the Administration of Criminal Justice Act, 2015. It was not a case of oversight or lack of knowledge of the existence of the AJCA on the part of the court, but a deliberate judicial decision to turn back the hand of the clock in the ongoing battle against corruption and impunity in the land. Curiously, some senior lawyers have endorsed the blatant violation of the law in the matter.
“I am disturbed that a progressive lawyer like Emeka Ngige SAN was reported to have justified the illegality of the order of stay of proceedings. No doubt, the prosecution and the defence counsel who are Senior Advocates of Nigeria cannot be exonerated in the mockery of the criminal justice system.”
Falana called for the upturning of the pronouncement of the apex court, warning that if the order was allowed to stay, every other accused person would also apply for a stay of proceedings or interlocutory injunction to frustrate their trials.
Falana added, “Therefore, the controversial ruling of the Supreme Court should not be allowed to stand because of its far-reaching implications and negative impact on the administration of criminal justice in the country. Since the ruling is binding on all other courts in line with the hallowed principle of stare decisis, the Supreme Court should take advantage of the substantive appeal in the Saraki’s case to review its position with a view to confirming the abolition of stay of proceedings by section 306 of the AJCA.
“This clarification should be made as soon as possible in line with the letter and spirit of the AJCA. Otherwise, every accused person will continue to file interlocutory appeals and proceed to ask for a stay of proceedings pending the determination of such appeals.”
He warned the Supreme Court not to dance to the tune of those he called the agents of impunity.
“The apex court is advised to distance itself from the antics of the influential agents of impunity in the legal profession who have resolved to frustrate the trial of corruption cases by filing cumbrous motions and frivolous preliminary objections designed to shield members of the ruling class from prosecution,” he said.
Reacting to Falana’s argument on the Supreme Court ruling, Chief Adegboyega Awomolo (SAN), said in “case law principles,” the Supreme Court decision would have been in order.
“But in the case of the Administration of Criminal Justice Act and particularly with regards to the Practice Direction issued by Honourable Justice Aloma Mukthar, a retired Chief Justice of Nigeria 2014, it is obligatory that cases of corruption should not be suspended or stayed. That is the only difference; because it is a very dangerous precedence that the Supreme Court has laid down. I want to believe that they have other evidence or facts on record which would have justified their interference at this stage.
“But having regard to the various decisions on the amount of danger that stay of proceedings has brought to corruption cases in Nigeria and having regard to the mood of the nation regarding corruption, I believe it is a very dangerous precedence. And it would be latched on by so many corruption cases that will be coming forth.
“I would have preferred that the Supreme Court allowed the trial to go to conclusion because the law has provided that all preliminary objections shall be taken and decided together in the judgment of the court. For me, I would have preferred the provision of the Practice Direction which says criminal cases should be given prime importance.
“Yes the appellant has raised a lot of issues of impertinence by the lower court but the ACJA supports the tribunal, that all preliminary objections can be taken together with the judgment of the court. In other words, there ought not to be any interruption. We have seen how the judiciary has come under the hammer; how the whole world has said that the judiciary is the one protecting corrupt public officers, particularly the politically-exposed persons. This case is one of those cases that the tribunal has taken on and they ought to have allowed it to go on.”
In his own comment, Mr. Kunle Ogunba (SAN), said though he did not have the full facts of the case before the Supreme Court, he argued that the apex court should have allowed Saraki’s trial to proceed.
He was also of the view that others might want to take the advantage of the Supreme Court decision in upcoming criminal cases.
“Justice must not only be done but must be seen to have been done. When we look at it, we lawyers can understand the position of the Supreme Court but people outside might be crying foul. And I quite agree with Mr. Falana (SAN) in view of the antecedent of criminal trials in the country. You can appeal at the end of the whole case,|” Ogunba said.
The Supreme Court had on November 12 ordered a stay of proceedings of the trial of Saraki before the Code of Conduct Tribunal on 13 counts of false asset declaration.
The order of the Justice John Fabiyi-led five-man panel of the apex court followed a concession given by the Federal Government’s counsel, Mr. Rotimi Jacobs (SAN), for the proceedings of the tribunal to be halted if Saraki’s main appeal would be given an accelerated hearing.
It came after Saraki’s lead counsel, Mr. Joseph Daudu (SAN), had argued his client’s motion for stay of the CCT’s proceedings and while Jacobs was making his counter-submissions.
In a unanimous decision read by Justice Fabiyi, the apex court ordered the tribunal, which had fixed November 19 for the commencement of Saraki’s trial “to tarry awhile” pending the hearing and determination of the Senate President’s appeal.
The apex court ordered Jacobs to file his respondents’ brief in response to Saraki’s appellant’s brief served on him in court on November 12 within seven days.