The Supreme Court of Nigeria is not only the final court in the hierarchy of courts in Nigeria but it is one deserving of the most respectful treatment from members of the Public in general and legal practitioners in particular. For those who do not know the antecedents of Mr Femi Falana SAN and possibly Chief Adegboyega Awomolo SAN, it would have come to them as a matter of great consternation to see the resort by these ‘gentlemen’ to very brash and unwarranted criticism of the Supreme Court over its decision to stay the ‘trial’ or further proceedings before the Code of Conduct Tribunal involving the Senate President Dr Olubukola Saraki over alleged breaches of the Code of Conduct for Public Officers as contained in the 5th Schedule of the 1999 Constitution.
The antecedents to the proceeding or hearing before the Supreme Court leading to the stay of further proceedings are well known. For those who are too familiar with the facts; on the 18th of September 2015, someone purporting to act on behalf of and with the authorisation of the Attorney-General of the Federation of Nigeria instituted a 13 count complaint in the Code of Conduct Tribunal. On the date of arraignment the Tribunal sat with the Chairman and one member instead of the chairman and 2 other members as prescribed by the Constitution. There were at least 3 other issues of grave jurisdictional proportions, which if upheld will bring to a halt the sham of a trial being conducted by the CCT.
Objections were taken at the CCT which predictably were overruled by the Chairman. This decision was appealed against to the Court of Appeal, which court to its credit gave the matter accelerated hearing and rendered a split decision i.e. 2-1 in favour of the prosecution on the 30th of October 2015. Being dissatisfied with the majority decision aforedescribed, the Appellant, Dr Saraki exercised his undoubted constitutional right of appeal to appeal to the Supreme Court of Nigeria. Now on the 5th of November 2015, whilst the appeal and an application for stay of proceedings were pending before the Supreme Court, the Code of Conduct tribunal made a great show of continuing or attempting to continue with the Saraki case. Leading counsel and their retinue of lawyers all representing the Defendant, Dr Saraki had to apply to the Tribunal seeking to withdraw further representation for the Defendant in the face of the choice they were left with; either to desecrate the processes pending before the apex court by going on in the CCT with the trial, thus rendering the said application otiose or valueless when it eventually comes up before the Supreme Court.
The apex court finally heard the application to stay further proceedings of the CCT in this matter on the 12th of November 2015 and after listening to the comprehensive submissions from both sides granted the application and stayed the further hearing of the matter until the appeal is heard and disposed off. It is this stay that has exasperated or irritated the likes of Femi Falana and Chief Awomolo, whose views have been published in the print and electronic media. The main point canvassed and to use Falana’s language is that the grant of stay of proceedings by the Supreme Court is illegal because the Administration of Criminal Justice Act ‘has abolished stay of proceedings and interlocutory appeals by merging all preliminary objections with the substantive case in any criminal trial instituted in any federal court in the country. The revolutionary intervention of the law was occasioned by the unending trial of politically exposed persons in corruption cases’.
It is unfortunate that senior and otherwise respected lawyers would go on the pages of newspapers to denigrate and criticise a valid ruling of the Supreme Court of Nigeria, particularly when they are aware that the prosecution itself offered not to proceed before the trial Tribunal until the Supreme Court disposes off the appeal. These counsel and their sponsors were clearly crying louder than the bereaved as the prosecution mindful of the law had thrown in the towel as it rightly should have done on the power of the Supreme Court to grant a stay of proceedings pending appeal even in the face of the Administration of Criminal Justice Act.
It will be a very sad day when a court of law, any court of law, not to talk of the Supreme Court, is shackled and manacled from interpreting the Law, its primary function and the very reason for its existence.
Section 306 of the ACJA provides as follows; ‘An Application for stay of proceedings in respect of a criminal matter before the court shall not be granted’ It ought to be noted that the criminal trial is not before the Supreme Court, what is before the apex court is an appeal from the decision of the Court of Appeal in respect of the jurisdiction of the Code of Conduct Tribunal. It is perverse interpretation to seek to bind the Supreme Court with the uninterpreted provisions of a law that only applies to trial courts. The jurisdiction of the Supreme Court to hear appeals from the Court of Appeal is derived from the provisions of section 233-(1) and (2) of the 1999 Constitution. The power of the Supreme Court to preserve the substratum of the appeal before it is further derived from section 6-(6)-(a) of the Constitution which provides that ‘The judicial powers vested in accordance with the foregoing provisions of this section- shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and .sanctions of a court of law’. Those criticising the order made by the Supreme Court are merely expressing political sentiments instead of law. This is because the right of appeal being preserved by the stay of proceedings is sourced from the Constitution. It is common knowledge that the Constitution is the supreme law and is superior to any other legislations i.e. Act of National Assembly and law of the House of Assembly and where such law is inconsistent the Constitution such law will be void to the extent of such inconsistency. Consequently, assuming that section 306 is applicable in the circumstances and it is clearly not as demonstrated, that provision in as much as it seeks to impede the constitutional functions of the Supreme Court will be void to the extent of such inconsistency. That is what section 1 (3) of the 1999 Constitution says in unambiguous lucidity. Happily, from the plain wording of section 306, that law does not apply to the Supreme Court of Nigeria or any other appellate court for that matter.
The powers of the Supreme Court to decide a case to finality cannot be compromised, whittled down, abated, or negated by any legislation subordinate to the Constitution. The Supreme Court is not in the habit of making orders in vain and it possesses undoubted powers to ensure that whatever decision it arrives at would not be nugatory or overtaken by events. Moreover, the trial before the CCT is just about 2 months old and it has already arrived at the Supreme Court. Justice hurried at the expense of due process and constitutional rights of appeal is also justice denied. Indeed, it is worse than justice delayed.
Messrs Falana and Awomolo, SANS’ both know that part of the arguments in the Supreme Court oscillate around the nature of the proceedings before the code of conduct Tribunal. The Appellant Dr Saraki is contending that all trials before the CCT are for ‘breaches of the Code of Conduct for Public officers’. They are not crimes in penal statute books such as the Criminal and Penal Code and the EFCC and ICPC legislations. It is common knowledge that this administration has been looking for a way to set up criminal anti-corruption courts that will try cases of stealing or diversion of public funds, fraud, bribery, defalcation of funds etc. Laudable as that policy may appear to be, it is unsound and unattainable within the confines of the present constitutional arrangement for the judiciary. The attempt therefore to turn the Code of Conduct tribunal to an anti corruption court has failed from the get go. It is dead on arrival, as dead as dodo. It is indeed a mark of fraud to seek to portray a tribunal such as the CCT set up to try recalcitrant public officers who did not get their paperwork right even when advised by the Code of Conduct Bureau to make adjustments into a criminal court. As this point may come up for arguments in due course it would be better to say no more on it for now.
Ozekhome, a Senior Advocate and social critic writes from Lagos