Tribunal: Tinubu has no case to answer
Former Lagos Governor Bola Ahmed Tinubu’s integrity remained intact yesterday, with the Code of Conduct Tribunal freeing him of the three-count charge brought by the Code of Conduct Bureau (CCB).
The National Leader of the Action Congress of Nigeria (ACN) was charged with allegedly operating foreign accounts while in office.
Tribunal Chairman Justice Danladi Umar said the charge constituted an abuse of court process, judging by the manner the prosecution withdrew it and filed an amended charge. This, he said, robbed the tribunal of jurisdiction.
The three-man panel also quashed the amended charge for not disclosing any prima facie case against Tinubu.
Justice Umar said the CCB failed to meet the condition precedent laid down in the Act establishing the tribunal.
He said the prosecution could not prove that they duly invited Tinubu to either deny or admit in writing the allegations against him.
Besides, he pointed out that no affidavit or exhibit was attached to the charge to establish prima facie.
The Tribunal arrived at the decision after upholding Tinubu’s preliminary objection as argued by his team of lawyers, led Chief Wole Olanipekun (SAN).
Also for Tinubu are former NBA President Rotimi Akeredolu (SAN), Charles Edosomwan (SAN), Adeniyi Akintola (SAN), Dele Belgore (SAN), Yemi Osinbajo (SAN), Kabiru Turaki (SAN), Emeka Ngige (SAN), Deji Sasegbon (SAN), Dele Adesina (SAN), Mrs. Jumoke Anifowoshe and Dr. Tunji Abayomi.
Others are: Mr. Femi Falana, Alh. Lai Mohammed,Tunde Braimoh, Muiz Banire, Oye Akintola, Funso Olukoga, E. Okara, Dapo Akin Osun, M. I Komolafe, Toke Benson Awoyinka, Sola Iji, Onuora,Yakubu Gana Haruna,Lanre Obadina, Bimpe Awogbomogun, R.O Oloyede, T.C Okafor, Aisha Ali, Abdulmajid Oniyangi, Samuel Abba, Gbenga Adeyemi, Soli Olowalafe, Joshua Alogbu and Uche Onyeagocha.
Governors Raji Fashola (SAN), Rauf Aregbesola (Osun) and Ibikunle Amosu (Ogun) were at the session. So also were Senators John Akpanudoedehe and Olorunnimbe Mamora as well as many ACN chieftains.
Justice Umar said: “I have painstakingly considered the argument of the counsel.
The prosecution claimed it invited the applicant. The invitation extended to the applicant presupposes the importance of the invitation. The allegation by the accused/applicant counsel was made openly in this court. It is my opinion that it is a condition precedent to invite an accused to make a written admission or deny it.
“The accused ought to have been invited. This is missing in this case and the prosecution has no evidence that it did. The intention of the legislator in inserting the condition in Section 3d cannot be overemphasised. I hereby resolve the issue in favour of the accused.”
Pronouncing the entire proceedings an abuse of court process, Justice Umar referred to the applicant’s submission that there is a pending appeal on similar issues at the Court of Appeal, which is not pursued by the complainant.
Said Justice Umar: “It was in this court that we actually received the amended charge. To me the complainant did not follow the due procedure. If you wanted to amend your charge, you should have submitted a copy of those charge you wanted to add for analyses, after which if we go give a go-ahead, you file the charge. Then the accused will now know he is facing a three-count charge, not one count charge. I strongly believe you cannot do justice by ambushing …
“In view of my decision on issue two, I’m of the opinion that the charge herein is an abuse of court process. When a court discovers that its process has been abused, the proper order to make is to dismiss same and it is hereby dismissed.”
Justice Umar stressed that there was the need to make a pronouncement on other issues raised before the Tribunal to set the record straight.
Dismissing the argument by the applicant’s counsel that the proper place for the Tribunal to sit is Lagos and not Abuja, Justice Umar said: “There is no geographical boundary for the tribunal. It is one tribunal with no division like the Federal High Court. Its jurisdiction is nationwide.”
On the allegation that Tinubu operated foreign accounts, the Tribunal said there was no prima facie case established against the former governor.
It observed that there were other names different from Tinubu’s that are on the foreign accounts allegedly operated by him.
Faulting the prosecution, Justice Umar said “the amended charge against the applicant does not include operation of foreign accounts by proxy”.
He wondered why Tinubu should be made to answer cases on accounts which are not bearing his name, with the prosecution failing to establish the link between the person(s) mentioned with Tinubu.
Besides, he said the amended charge did not receive the tribunal’s blessing before it was brought, adding that it has no exhibit or affidavit in support.
“It is the law that an amended charge constitutes a new matter altogether, different from the one the tribunal initially summoned the accused/applicant to come and defend. The effect is that an amended charge has effectively wiped out the earlier order to come and defend the one count charge, which is now substituted by a three-count charge.
“How on earth can it be said that a prima facie case has been made when there is no proof of evidence before this tribunal. In fact, the learned Senior Advocate for the complainant is not brave enough to say that there is a new affidavit and summary of evidence attached. How on earth do we expect the accused/applicant to be tried on this defective charge. The fact that it was this tribunal that initially ordered the accused/applicant person to appear before it, pursuant to the initial charge, cannot constitute the precipe on which the tribunal should proceed to hear the case without proof of evidence.
“The right of the accused person to fair hearing is inseparably tied to the proof of evidence required to prove the allegations against him. In this case, the summary evidence of Salisu Garba attached to the initial charge cannot resurrect the new charge, having been buried under the rubble of the amendment sought for by the complainant and duly granted by the honourable court.
“I take final liberty to take a look at the amended charge itself. I say emphatically that there is no sufficient basis to proceed against the accused/applicant. The amended charges claim that the applicant engaged himself in the operation of several foreign bank accounts.
“The new charge did not say that the accused/applicant operated foreign accounts by trustees or by proxy.”
The judge held that the complainant failed to supply proof of evidence to enable the accused/applicant prepare for the charge.
“It is the law that the argument of counsel, no matter how beautiful, cannot constitute an evidence. Argument of counsel, however presented cannot replace evidence not pleaded.
“In the circumstance, no prima facie case has been made against the accused. The filing of the amended charge without any affidavit …
“It is only when this is shown with the statement of the account that a prima facie can be said to have been made against the accused/applicant. The non-filing of an affidavit pursuant to the amended charge there is no basis to believe that the accused/applicant actually misinformed the Code of Conduct Bureau about his financial dealings.
“In the circumstance and based on all the findings, I have made out earlier, I hold that this tribunal has no jurisdiction to proceed to try the accused/applicant and the amended charge is hereby quashed. The accused applicant is hereby discharged.”
At the last sitting, Olanipekun had argued that the CCT lacks the jurisdiction to try Tinubu.
He contended that the applicant was not invited for questioning by the CCB as was in the case of other former governors who had been excluded from trial.
The CCB Chairman, Mr. Sam Saba, had on September 27 told reporters in Abuja that some of the former governors earlier accused of breaching the oath of public office had made some refund, hence their exclusion from trial.
The Prosecution had on September 21 withdrew the one-count charge and filed an amended charge of three-count charge with the same particulars.
In the motion brought pursuant to Sections 36(6) (a) (b), 36 (12) and paragraph 15 of the Fifth Schedule of the 1999 Constitution; Section 3 and
paragraph 1 of the third Schedule of the Code of Conduct Bureau and Tribunal Act, Olanipekun argued that the amended charge constitutes an abuse of court process.
He urged the panel of three Justices to quash and/or strike out the three count amended charge filed on September 20 against Tinubu by the Complainant/Respondent.
He also prayed for *An order discharging the Applicant (Tinubu), and for such further order or orders as the Tribunal may deem fit to make in the circumstances.
In the application, which was accompanied by an 11-paragraph affidavit and predicated on 10 grounds, Olanipekun said that the complaint stated in the charge by the Complanant is not known to the 1999 Constitution.
Besides, he argued that the condition precedent before a person could be charged before a Tribunal had not been met.
Olanipekun referred to Section 3 of the CCB and Tribunal Act, which states that “where the person concerned makes a written admission of such breach or non-compliance no reference to the Tribunal shall be necessary”.
“What the prosecution is doing is to put something on nothing; they want it to stand, it will not stand; it will collapse like a pack of cards,” he said, adding:
“Where a person can make a written admission, there will be no need for trial, the applicant must be invited; there is no short-cut about this, it is paramount, it is fundamental. The CCB said it invited those other governors. If it is good for the goose of those governors, it must be good for their gander’.
“Your lordship will have to make findings; was he invited? The CCB does not have a coercive power; what it has is interactive power. Was he invited? On what day and who was the courier?
“Please, take note of the word several times’ stated in the counter-affidavit of the Complainant. They have not made any infraction of time.
“In their counter-affidavit, the deponent said ‘I was informed by the Complainant through another person’, but the Complainant, which is the Federal Republic of Nigeria, is a jurisdiction entity and not a natural person. It is only a natural person that can inform. Federal Republic of Nigeria is you and I; it is only a natural person that can inform and you believe. Nigeria cannot be an informant; the informant must bear his father’s name.”
Arguing further, Olanipekun said “as at the time the Applicant came to the court, there were two charges against him”.
He described the amended charge as an abuse of court process.
Criticising the manner the Complainant withdrew the first charge when the amended charge had already been filed, Olanipekun said: “One does not sit within the confine of his office or home to say ‘I withdraw’. Withdrawal has to be formal; there has to be pronouncements; then there will be a formal order either striking out or dismissing it. They cannot withdraw in our absence. This notice of withdrawal constitutes an abuse of court process; they filed it after receiving our motion.”
The applicant’s counsel also challenged the venue of the trial-Abuja. According to him, trial should be in Lagos, the place where the alleged offence was committed.
Olanipekun also argued that the charge disclosed no nexus between the people mentioned on the charge sheet and disclosed no information on the status of the foreign accounts referred to.
“It is amorphous, nebulous; it is at large. There is nothing in it. When was the account opened, when was it operated. Looking at the charge, they mentioned some names, ‘we don’t know them’. Criminal trials is not a hide and seek game, there cannot be trial by ambush. There is nothing in the charge before you showing the relationship between those mentioned in the charge.”
But the Prosecution counsel, Alex Iziyon (SAN), urged the court to dismiss the application.
He argued that jurisidcition is an administrative matter, adding that it is premature to say we have not disclosed the nexus of the names on the charge.
According to him, the CCB has the discretion on whether to charge an accused to Tribunal after making a written admission, adding that the Bureau is not under compulsion.
On the amended charge, Iziyon said what the Applicant through his counsel ought to have done is to challenge the leave granted to prefer the amended charge.
But the Tribunal Chairman, who overruled him, said the Complainant could not have been aware since it was done in the chamber.
Replying on point of law, Olanipekun urged the tribunal to discountenance the submission of the Complainant.
He submitted that there was nothing to show the form the Applicant filled and submitted to the CCB, stressing that it is not the duty of the applicant to do so.
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Tribunal: Tinubu has no case to answer