DR. OLUBUKOLA ABUBAKAR SARAKI V. FEDERAL REPUBLIC OF NIGERIA (2016)

Background

This appeal arose from criminal proceedings commenced against Dr. Olubukola Abubakar Saraki before the Code of Conduct Tribunal (CCT), Abuja. The appellant had served two terms as Governor of Kwara State from May 2003 to May 2011 and had filed asset declaration forms as required by law. Following investigations by the Code of Conduct Bureau and other government agencies, he was accused of failing to declare certain assets, making anticipatory declarations, transferring money abroad to acquire properties in London, and maintaining a foreign bank account while serving as governor. These allegations were presented in a thirteen-count charge alleging breaches of the constitutional Code of Conduct for Public Officers.

At the time the charge was filed, there was no incumbent Attorney-General of the Federation. The charge was signed by M. S. Hassan, a Deputy Director in the Federal Ministry of Justice, with the stated authority of the Solicitor-General. Saraki challenged the competence of the charge and filed proceedings before the Federal High Court. He also objected to appearing before the CCT. The tribunal overruled his objections, issued a bench warrant when he failed to appear, and adjourned the case. On 22 September 2015, Saraki appeared personally, pleaded not guilty, and was granted bail on self-recognisance. The bench warrant was then discharged.

The Court of Appeal dismissed his appeal against the tribunal’s ruling. He consequently appealed to the Supreme Court.

Issues

1. Whether the CCT was properly constituted when it sat with only its Chairman and one other member, notwithstanding paragraph 15(1) of the Fifth Schedule to the 1999 Constitution.
2. Whether the CCT possessed quasi-criminal jurisdiction and the power to issue a bench warrant.
3. Whether the charge was competent because it was filed by a Deputy Director rather than personally by the Attorney-General of the Federation, particularly when that office was vacant.
4. Whether defects in the service of the summons invalidated the proceedings despite the appellant’s subsequent appearance.
5. Whether the CCT disobeyed an order of the Federal High Court by continuing with its proceedings.
6. Whether the CCT was entitled to apply criminal procedure legislation, including the Administration of Criminal Justice Act 2015.

Ratio Decidendi

The Supreme Court unanimously dismissed the appeal and affirmed the decision of the Court of Appeal. On the question of composition and quorum, the Court distinguished between the full composition of a tribunal and the minimum number required to constitute a valid sitting. Paragraph 15(1) of the Fifth Schedule provides that the CCT “shall consist of a Chairman and two other persons.” That provision establishes the tribunal’s composition but does not expressly prescribe its quorum. By virtue of section 318(4) of the Constitution, the Interpretation Act applies in interpreting constitutional provisions. Section 28 of that Act provides that the quorum of a tribunal shall not be less than two, including the Chairman. Accordingly, the Chairman and one other member validly constituted the CCT for the sitting in question.

The Court rejected the argument that paragraph 12 of the Third Schedule to the Code of Conduct Bureau and Tribunal Act required three members to sit in every proceeding. That provision concerned the signing of notes and procedural matters; it did not prescribe the tribunal’s quorum. The Court also emphasised that constitutional provisions must be interpreted holistically and in a manner that promotes the effective functioning of the constitutional institution.

The Court held that the CCT possesses a constitutionally created quasi-criminal jurisdiction. Its governing provisions use criminal terminology, including charge, arraignment, plea, prosecution, conviction, guilt, sentence and arrest. The tribunal is empowered to try specified breaches of the Code of Conduct and impose sanctions. It therefore has sufficient authority to issue a bench warrant to secure the attendance of an accused person. However, Muhammad JSC observed that the bench-warrant issue had become spent and academic because the tribunal itself discharged the warrant after Saraki appeared.

On the validity of the charge, the Court applied sections 174(1) and (2) of the Constitution, sections 2 and 4 of the Law Officers Act, and section 24(2) of the Code of Conduct Bureau and Tribunal Act. The constitutional power of the Attorney-General of the Federation to institute criminal proceedings may be exercised through officers of his department. The office of the Attorney-General remains legally in existence even when no person is occupying it. In the Attorney-General’s absence, the Solicitor-General may perform the Attorney-General’s duties and exercise the same powers. A Deputy Director in the Federal Ministry of Justice was therefore competent to file the charge. The Court further applied the presumption of regularity: a law officer’s assertion that he is authorised is accepted unless disproved by credible evidence. There was no statutory requirement that a letter of authority be produced at the time the charge was filed or at arraignment.

Court Findings

The Court held that any defect or irregularity in the summons did not invalidate the proceedings. Section 136(a) of the Administration of Criminal Justice Act 2015 permits a trial to proceed notwithstanding an irregularity, defect or error in the summons or warrant, including defects in issuance, service or execution, where the defendant is before the court. Saraki’s personal appearance and subsequent plea meant that the alleged defect was not fatal.

The Court also found that the Federal High Court had not made an order staying the CCT proceedings. The relevant order merely directed parties to appear before the Federal High Court and show cause why interim injunctive relief should not be granted. It did not prohibit the CCT from sitting or direct it to suspend its proceedings. Any complaint concerning disobedience had to be pursued in the suit in which the order was made.

The Supreme Court declined to consider arguments that had become academic, including the discharged bench warrant. It also stated that a reply brief must respond only to new points raised in a respondent’s brief and must not merely repeat, amplify or refine arguments already made in the principal brief.

Conclusion

The appeal was dismissed for want of merit. The Supreme Court affirmed the judgment of the Court of Appeal, which had upheld the CCT’s ruling that the charge was competent and that the tribunal could proceed with the case. The CCT was validly constituted with its Chairman and one other member, the charge filed by the Federal Ministry of Justice was competent despite the absence of a sitting Attorney-General, and the alleged defects in service and the supposed Federal High Court order did not nullify the proceedings.

Significance

The decision is significant for Nigerian constitutional and criminal procedure law. It confirms that the constitutional description of a tribunal’s composition does not necessarily state its quorum and that section 28 of the Interpretation Act may supply the applicable minimum quorum where the Constitution is silent. It also reinforces the supremacy of the Constitution, the continuing legal existence of the office of the Attorney-General, and the authority of officers within the Attorney-General’s department to institute criminal proceedings. More broadly, the case recognises the CCT as a specialised quasi-criminal tribunal with powers necessary to enforce public accountability, probity and transparency.