By Yahaya Abubakar Ndakene
On 14th June, 2017, the news broke that the Senate President Bukola Saraki, had been discharged and acquitted by the code of Conduct Tribunal, CCT. The first thing that might have come to the mind of an average Nigerian might have been to blame the panel of the CCT and probably subscribed to the allegations of the Sahara Reporters that Mr Danladi Umar collected $2m bribe to acquit Saraki without evidence. However, the tribunal, according to its ruling, decided the case based on what they had in the record of proceedings. Mind you, if this case should go on appeal to the Court of Appeal and finally to the Supreme Court, the first ever point of call is always the Record of Proceedings from the CCT.
From this Record, we realized the numerous loopholes and the inadvertent mistakes of the prosecution that led to the discharge and acquittal of Saraki. Noticeable of these are:
At the opening of Saraki’s trial, the prosecution, through their star witness, Michael Wetkas (PW1), alleged that the investigation was an off-shoot of several petitions written to the EFCC against Saraki by Kwara Freedom Network and an Intelligence Report received by the erstwhile EFCC Chairman, Ibrahim Lamorde against Saraki which made him constitute a team headed by Michael Wetkas, the pW1 in the case. However during trial, wetkas said “ Shortly after the expiration of Saraki’s second tenure in 2011, the commission received several petitions from various groups including Kwara Freedom Network-they wrote several petitions all bothering on allegation of abuse of office against the Defendant, misappropriation of public funds and money laundering”. He didn’t cite any petition received either by the Commission or the CCB citing false asset declaration. (Infact, one would expect that, since those were mere allegations, a trial be conducted first and the Defendant convicted before he can be properly and very easily cited for breach of code of conduct and get a very simple conviction using the judgment in that case.) Even if the fact of lack of petition would not stop a trial where there is evidence of false declaration or non-declaration, one would wonder why they decided to bring the case to the CCT on the basis of the available petitions rather than the proper court in charge of money laundering. Be that as it may, during the cross examination, wetkas said he did not investigate the Kwara Freedom Network Petition. He didn’t invite or investigate the author of the petition, the petition was investigated by “team 2” which never testified at the CCT, but could have been called by the Prosecution, it is not part of his investigation to meet with members of Kwara Freedom Network and so on. No other person, whether from the EFCC or the CCB came to fill all these loopholes despite the fact that Wetkas said in his testimony that “The investigators of 2006 are coming to testify here of what they found in 2006”, but still, no one testified on what they found in 2006 before the prosecution closed its case.
Wetkas also said he was in a team with Sunday Madojemu and Samuel Yahaya, the “Asset Director, Legal” who even appeared in person before the CCT on 18th April, 2016 and would have been in the best position to state some of the information from PW1 but he never testified.
PW1, Michael Wetkas is a staff of the EFCC. The Asset declaration forms of Saraki (the Defendant) were tendered through PW1, not through the designated staff of CCB who is saddled with responsibility of actual custody of the forms. Not even the Sunday Madojemu, though not a Custodian of forms but a staff of the CCB. The essence of allowing the appropriate person in custody of the forms to tender same is to sustain a position that since the Defendant submitted the forms, they have been in proper custody before the date of trial and before same was tendered in evidence. But in this case, PW1 claimed they examined the Defendant’s Asset Declaration form, but Prosecution decided to tender the CTC of the forms in evidence through PW1 before the CCT when the originals exist and are actually available. Surprisingly, before close of trial, I think, during the testimony of PW3, Sunday Madojemu, Rotimi Jacobs SAN came to the tribunal in possession of the original forms of the Defendant after he has tendered the CTC of the Forms to the tribunal in evidence without foundation through PW1, a staff of EFCC. That was really shocking. Those forms were to come from the strong room at CCB where Assets Declaration forms are kept, to the CCT and left with the designated Exhibit keeper and custodian of EXHIBITS at the CCT. Infact, on the said date, Rotimi Jacobs brought out those original forms, showed it to the witness and allowed the learned Chairman and Member of the Tribunal to have a glance, he then collected it back and went away with it. Does that mean that CCB trusts the custody of Rotimi Jacobs better that of their counterpart, CCT? This implies that the slightest allegation by the Defendant that the forms have been tampered with by the prosecution to make his defence would certainly have a chance of success.
To buttress my position, Wetkas said during cross-examination by Paul Erokoro SAN on 10th May, 2016 that ”The original copy of Exhibit 1 (the Asset declaration forms of the Defendant) is with the Code of Conduct Bureau. The only reason why we did not bring the original copy of EXH 1 is because we have a Certified True copy of EXH 1. I have never seen the original. I now say that I have seen the original when Mr Madojemu of CCB brought it to my attention. Original is Original. Mr Madojemu brought it to us during our investigation for sighting but already we have a Certified True Copy, not the original because it is a replica of the original.” Then he added “Except it becomes an issue, only then do we produce the original (Original Asset Declaration Forms of a Defendant).” parenthesis mine.
Does this statement mean that there was no issue at all with the Assets Declaration forms of Saraki that was why the originals were not produced? In any case, submitting the CTC of EXHIBIT 1 to the tribunal is disrespectful and faulty in the first place, with no foundation whatsoever by the Prosecution as to the reason why CTC rather than original was being tendered in evidence.
The Prosecution alleged underfunding of the UBE but never called anyone from UBE, never called the Petitioner or tendered any statement written by any UBE staff or investigator or IPO in that regard, Accountant General of Kwara State or any other designated staff of his office was not involved or called either during investigation or during trial. What was brought before the CCT was the mere allegation that it was before the trial.
It could be argued that by virtue of Section 256 of the Administration of Criminal Justice Act (ACJA), the tribunal ought to have called those witnesses if they think they were necessary. But we disagree strongly with that position. Let’s not forget the ultimate law of evidence that a judge must not descend into the arena of conflict. The prosecution did not, for reasons best known to them, call or recall these witnesses. Secondly this is a criminal trial and remember, in criminal trials, the slightest doubt must be resolved in favour of the accused person, not the prosecution. Now, analysing Section 256 of ACJA, one would realise that the provision either conflicts with Section 241 or derives from Section 241 as Section 241 talks of issuance of summons or subpoena to call a witness. By section 241, only the Prosecution and Defence can call witnesses to testify in a case and they must do so by an application to the judge and then the court as an arbiter after hearing the application moved by either party to the case, issues the said summons or subpoena. The prompting of parties before issuance of subpoena or summons to call a witness is sarcosant and in the interest of fair hearing. That provision did not say the judge could issue summons suo moto without any application by either party to the case. So if 256 says the judge can “call” a witness and the only persons who can move the court for issuance of instruments to call a witness are the Prosecution and the Defence, how then will the court have the power to issue summons or subpoena under this Act to “suo moto” issue an instrument to do so? The ultimate law of evidence as earlier stated is that judges should not descend into the arena. This provision of section 256 is not “realistc” because I can’t imagine how prosecution that has failed in conducting its case well can go on appeal and claim “the judge did not call a witness for his case to have thrived”. It’s just somehow. The provision of Section 256 has high probability of being declared null and void and unconstitutional because it merely implies that prosecution should “team up” with the judge to call witnesses in criminal trials such that where the Prosecution leaves out anything, the judge will fill the space. This in itself, where it happens, can’t be termed a fair trial.
Also, the Prosecution alleged borrowing from the coffers of Kwara State Government against the Defendant for purchase of his personal property. They never confronted him with the allegation before the CCT trial neither did wetkas know whether or not his “other teams” confronted him, but no one testified to state he was invited in that regard. The Accountant General of the state would have been called by the Prosecution too. Let’s note that issues of not calling relevant witnesses were elicited during cross examination of prosecution witnesses and it means the investigation of the EFCC and CCB did not cover those areas and explains why they were not invited and have no written statement with any of all the various Teams that investigated the allegations.
There was also an allegation of Fraud against the Defendant in respect of Shonga Farm Holdings Ltd, but PW1 said he wasn’t in a position to say whether the white farmers were making their contribution or not. No one “in the position” to state so came to testify till prosecution closed its case, probably it was never investigated.
On the allegation of funding a Credit card with laundered money, the PW1 who testified in that regard said he has never seen a credit card before, he knows that the American Express Bank, New york that issued the card is in existence but did not write demanding for the account information of the card from them, or even if they wrote, were not patient enough to wait and get a response before including that allegation in the Charge- why?; he doesn’t know the physical location of the card. They didn’t invite the defendant to bring the card for investigation. This merely shows that adequate investigation was not done before this matter was brought before the tribunal, as a mere invitation or request for the card from the defendant would have availed PW1, at least the opportunity to know what a credit card looks like before testifying about the existence of what he has never seen before. PW1 also said he doesn’t have the account opening package of the Defendant, even the account number of the Defendant with that Bank is not known. He also said the Defendant did not declare the card, but during cross examination, PW3 who is from CCB said no column exists in the Asset declaration form for listing of Credit cards to be declared. How therefore can the CCT convict in the face of these loopholes?
On the verification of the assets declared in the forms of the Defendant, Wetkas confirmed that the forms have the seal of the CCB indicating the assets declared were verified and examined. In his testimony he said that assets can be verified by evidence of purchase and payment by the Declarant and that the severally mentioned property, “No.15 Mc Donald” was visited by one “Mustapha Abubakar”. Wetkas himself who gave evidence never visited the property. He claimed that the first team that started investigation of the Defendant, one “Adamu Garba” of EFCC was directed to harmonize the report which was before the tribunal. However neither “Adamu Garba” nor “Mustapha Abubakar” were called to testify before the Prosecution decided to close its case, despite the fact that Wetkas, in his words said “The report of 2006 investigation by Adamu Garba is already part of the proof of evidence and Adamu is more Competent to testify on that and he is coming to testify on that”.
Infact, to amplify the importance of calling Adamu Garba in this trial, the PW1 said in his evidence in Chief that “The executive Chairman recalled that there was a team in 2006 which was made up of CCB, the DSS, and the EFCC. He therefore called the EFCC representative on the Joint Committee on Assets consisting of CCB, DSS and the EFCC officer who represented the EFCC was one Adamu Garba. Mr adamu Garba was therefore directed to join our investigation team. To give us all the findings for purposes of sending it to the Legal department for advice.”
This was the exact statement of PW1 but the Prosecution decided to call four witnesses only, according to Rotimi Jacobs himself on Page 2 of his written address against No case submission; namely, 1. Michael Wetkas –EFCC, 2. Amazu Nwachukwu – GTB, 3. Samuel Madojemu – CCB and 4. Bayo Dauda-GTB.
Adamu Garba was never called, despite the fact that Wetkas tried to intelligently create an avenue to introduce further evidence through him, neither was Mustapha Abubakar called as the person who visited the property before Trial. Sunday Madojemu in his own case decided to visit the property after his testimony in the case had begun, a fact he couldn’t deny when Paul Erokoro described extensively how he wore a blue T-shirt to the surreptitious visit of the property, 15 A and B, Mc Donald, Lagos. During cross examination as Pw3, Madojemu admitted that he visited the property in Lagos in company of his colleague in February, 2017 and his testimony before CCT commenced specifically on the 8th February, 2017. One would expect that even if he didn’t visit the property during investigation, upon commencement of trial and before his testimony, he could have had a full grasp of the physical structure and numbering of the property, but neither Wetkas nor Madojemu did that before testifying at the tribunal. In whose favour would that failure be resolved? The prosecution? No, I think not.
The Case of BUHARI V OBASANJO (2006) 2 LPELR 295 AT 469; MANAGEMENT ENTERPRISES LTD V OTUSANYA (1987) 18 NSCC(PT. 65) 577 is relevant here where it was held that:
“Evidence of the nature given by these witnesses thus fell far short of the nature of evidence acceptable in court in proof of the character of allegations made. The evidence envisaged should come directly from the officers who were on the field where polling took place and votes were counted or collated. The best evidence that could be given by the supervisors and monitors who testified are reports from these polling agents on the field. Of the at least 43 polling agents who manned 43 polling units that make up Afon Constituency, only 3 were called to testify. The other 40 or a substantial number thereof could have been called but were not called as witnesses. Such evidence is therefore clearly inadmissible as it is hearsay. See Omoboriowo V Ajasin (1984) 1 SCNLR” 108; Hashidu V Goje (2003) 15 NWLR (Pt. 843) 352 at 386. Hear Akintan, JSC, in the latter case at page 386 of the report “PER SANKEY, J.C.A.
On allegation of owning two properties in No. 8, Whitteka Street, London which he financed via a mortgage. No mortgage agreement was tendered by PW1. Infact he said the information on the mortgage redemption from GTB to him was not in writing and he never had interaction with the Defendant on this. However Pw2, head of funds transfer unit of GTB, called by prosecution to testify said that “My banking experience doesn’t cover these two areas, mortgage redemption and Credit”. So why was he called as a witness? Why wasn’t someone in charge of mortgage redemption and credit called to testify on this?
In addition, Pw1 claimed their foreign partners confirmed that 2 properties were purchased in 2011 and 2015 and confirmed that the information was given to him “unofficially” but they will have formal information which they will tender before the tribunal as they don’t have any formal correspondence yet.
How can the prosecution expect to gain a conviction over an unofficial information which they are capable of obtaining formally? Prosecution through PW1 also claimed they would tender the formal information before the tribunal before the close of the case but they never did so before closing their case. Now, that cast doubts and aided the case of the Defence. And the law is trite under Section 167 (d) of Evidence Act, 2011 as follows:
“Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.”
The law therefore presumes that that piece of evidence was not obtained or was obtained and not tendered because it is unfavourable to the prosecution.
PW3, a Chief administrative officer at CCB testified on behalf of the Bureau and said he has never met the defendant, he was not the designated officer that received the Asset Declaration forms of the defendant, the receiving officer was not called as witness to state who verified the Assets declared by the Defendant, how they were verified or examined, and so on.
PW3 also said, on the allegation of sale of rice and sugar, that the defendant can own shares even in a company that trades in rice and sugar. He also said he did not ask the defendant which company has he invested that deals in rice and sugar. We are not sure whether the defendant actually invested in rice and sugar or not or he invested legitimately through ownership of shares in a company that trades in rice and sugar. How then can the tribunal ascertain the true position on that? The law is trite on speculative evidence in the case of UWAGBOE V. STATE (2008) 12 NWLR (PT. 1102) 622 AT 647, PARAS. G – H where the Supreme Court stated as follows:
“I must observe that courts are enjoined not to speculate on any possibilities not supported by evidence before it.
In the end, the court held that submissions not supported by any evidence on record, is very speculative in the extreme and therefore dangerous.
On the several mention of “team” and “teams” of investigation on the allegations against the defendant, the Tribunal adjudged the said teams as illegal and having no backing in law. But assuming that was not the case, the team issue would have still been defeated by the strong contradiction in the testimonies of PW1 and PW3.
PW1 stated that:
“On receipt of this intelligence report, the Executive Chairman set up a team of three (3) investigators headed by my humble self and two others: Chris Odofin and Nura Bako.”
Pw1 also said “There is Usman Imam, Musa Sunday, these are members who made up my team”
At one point, he also said “I also recalled that I was instructed to work with Samuel Madojemu and Samuel Yahaya of the Code of Conduct Bureau.”
During the course of the proceedings, one of the team members of wetkas listed as a witness by the Prosecution was present during his testimony before the CCT on 19th April, 2016 where he stated by himself that “My other colleague in my team is Nura Bako”
PW3 Samuel Madojemu on the other hand said “ I can recall six members of the team, myself, Michael wetkas of the EFCC, Mr Nura from EFCC, Samuel Yahaya from Code of Conduct Bureau, Barr Peter Danladi from Code of Conduct Bureau and Yahaya Bello from EFCC”
The names of “Usman Imam and Musa Sunday” are not listed as part of the larger team, neither are they part of the 3 man team constituted by the Chairman. Where then do they belong, having been named in the testimony of PW1?
Also, PW3, who is a Chief Administrative Officer at the Bureau for about 20 years stated in his testimony on oath that “The directive to represent the Bureau in this investigation was given orally, and terms of reference was when we concluded our work, we briefed the Chairman of Code of Conduct Bureau orally, It was also an oral directive from the Code of Conduct Bureau”.
He went further again to state on 22nd March, 2017 that “From the report (reviewed by his team) I did not see anywhere the defendant was contacted but they relied on the Asset form. There was no explanation from the form why the Defendant was not contacted. I remember saying that the instruction given to me to participate in the review activity were oral. I remember saying that the report of the review was also oral. I have never done any investigation without a written report.
All these creates huge loads of doubts and affected the case of the prosecution.
We will also add that, even if the Chairman had given oral directive to the Chief Admin officer, Madojemu, the Chief administrative officer of 20 years who has never done any investigation without a written report, is expected or ought to know that that it is not normal and at least, report back to the Chairman in writing for record purposes, using opening phrases like “Sequel to your oral directives to…” This in itself is an admission of Breach of Conduct and carelessness on their part in the performance of their official duties.
PW3 also said he is not aware whether the Defendant was invited by the Bureau or not. He also said “In the case of Godsay Orubebe he was invited severally but he refused to honour the invitation and so we charged him before the CCT and he was convicted.”
Perhaps CCB has the prerogative to decide whether to invite a person or not before prosecuting, otherwise why would PW3 make this kind of utterance in a case where they failed to invite the Defendant? Was he calling the Tribunal to draw conclusions in Orubebe’s case to hold that they failed to invite Saraki as a Defendant before charging him to the CCT? That also was improper.
Note that almost everything said by PW1 and PW3 in evidence were hearsay and further damaged such statements as – it is not within my competence to say…, I did not do…, I can’t confirm…, I did not investigate… and other related evasive response phrases. Who then will fill all those gaps as they were left hanging where they were said with no further evidence to fill all those gaps.
The evidence which the prosecution had against Saraki could probably succeed in a charge of money laundering if the several lacunas in the evidence were filled. The very first mistake the prosecution made was to waste all those seemingly super evidence on a charge of assets declaration rather than take their time to conclude investigations then charge to the appropriate court for money laundering if a prima facie case could be established. But Rotimi Jacobs inadvertently helped Saraki. How did he do that? He fought to the Supreme court to declare the trial before the Code of Conduct a crime (quasi-criminal trial to be specific) rather than the mere “Breach of Conduct” the constitution and the CCBT Act says it is, and I will explain that.
The provision of Section 23 (3) of the CCBTA provides that:
The punishments mentioned in subsection (2) of this section shall be without prejudice to the penalties that may be imposed by any law where “the breach of conduct” is also “a criminal offence” under the Criminal Code or any other enactment or law.
The law clearly differentiated between Breach of conduct and a crime, before the Supreme Court verdict criminalizing trial before the CCT as a quasi-criminal one in the recent case of Saraki v FRN before the Supreme Court.
On the basis of that judgment, the tribunal used ACJA for every part of the proceeding, not even CCT Rules as not a single motion or process was, to the best of my knowledge, brought under the rules of the Tribunal. If the trial before CCT was left at the Breach of conduct that it is and not a crime, nothing will stop the prosecution from filing a criminal charge of money laundering upon discharge and acquittal. Now all the evidences of the prosecution against Saraki on allegations of money laundering are all used up, all documentary evidences, already tendered; and the leader of all EFCC teams that investigated Saraki testified on them and tendered them all at the tribunal. Now he can quite safely claim double jeopardy if any new case is filed on the basis of the same evidences available or with any link to what was decided at the CCT. Meanwhile, Michael Wetkas of EFCC, PW1 testified that he investigated ONLY money laundering as investigation of false asset declaration is the role of CCB.
When Saraki’s trial began, Danladi Umar said and did certain things and actions that were challenged by the defence, but Rotimi Jacobs himself, was ever ready to justify the position of the tribunal.
I remember J.B. Daudu and his team argued that a panel of 2 is unconstitutional. But Jacobs argued and won to Supreme court that it was proper. Now, in the recent judgment of the tribunal acquitting Saraki, two independent judgments were delivered against the prosecution by the Chairman and the Member 1. What would have happened if Member 1 gave a different ruling and convicted Saraki or the Chairman convicts Saraki but the Member discharges him?
Allegations of corruption were brought against Mr. Danladi during trial, but EFCC, CCB and Rotimi treated it as an attempt by Saraki to escape trial and even went to the extent of obtaining a letter of exoneration for Mr. Danladi on the same date the Motion was filed. NASS invited Danladi; he honoured the invitation with unalloyed support of the Presidency and came out very strong to proceed to sit on Saraki’s trial.
Also, specifically on 27th April, 2016 a certain counsel, Oluyede came before the tribunal to move a motion that the Chairman, Danladi Umar should recuse himself from the case, being someone facing allegations and being investigated by the EFCC and there was likelihood that this will affect his independence and impartiality in deciding the case.
However, the Chairman and Rotimi Jacobs brought a letter to challenge the motion wherein the Tribunal Chairman was exonerated of all allegations in that regard from the EFCC, to sustain the trial. One would expect Rotimi to take his time to simply prove that what was before the CCT was a CCB case and not an EFCC case, since no law prohibits an EFCC staff like Michael Wetkas from testifying in a case filed by the CCB, particularly where he was the one who discovered alleged false declaration in the course of investigation of money laundering. But Rotimi preferred to justify the active participation and involvement of the EFCC and claimed Danladi was an independent and impartial judge and has no corruption allegation against him. Mr. Danladi Umar struck out the Motion and continued with his trial and was hailed by Nigerians, CCB, EFCC and FG. Meanwhile, remember Mr Danladi is already on the safe zone on those allegations of corruption by virtue of the letter freshly issued to exonerate him of all allegations. Saraki is discharged and acquitted and I saw a report flying around that EFCC wants to re-open Danaldi Umar’s case. I pray it is not true. That will certainly be another mistake the FG must be wary not to make. If Mr. Danladi has refused the no case submission, would they have thought of even re-opening his case? This is tantamount to using machineries and apparatus of governance to intimidate Mr. Danladi for not deciding otherwise, infact in the closing part of Rotimi Jacobs written address against the No-case submission, on page 68, he captured a topic as “WARNING TO THE TRIBUNAL”. That sounds like a threat and quite harsh a tone used there to address a panel before which the learned counsel appeared.