July 3, 2016
- Condemns filing of charges during pendency of civil suit
- SGF: Senate President, others should have their day in court
By:Tobi Soniyi in Abuja and Daji Sani in Yola
A Federal High Court in Abuja on Thursday ruled that the forgery charge filed against Senate President Bukola Saraki, Deputy Senate President Ike Ekweremadu, and two others by the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, was an abuse of court process. Justice Gabriel Kolawole declared that the AGF was too hasty in filing the charge during the pendency of a civil suit challenging the propriety of the police report on the alleged forgery of the Senate Standing Rule 2015, which has the AGF and the Inspector General of Police as defendants.
Kolawole was ruling on a motion ex parte brought by Senator Gilbert Nnaji seeking to stop the implementation of the police report.
But in Yola, the Adamawa State capital, yesterday, Secretary to Government of the Federation, Mr Babachir Lawal, accused Saraki and Ekweremadu of kicking up a fuss to obstruct a fair judicial treatment of the allegations against them. Lawal condemned what he called an attempt by the senate president and his deputy to present the forgery case against them as a persecution of the legislature by President Muhammadu Buhari-led federal government. He said they should go and defend themselves in court rather than blaming the federal government for their ordeal.
The presidency and the two leading officers of the senate have of late exchanged fireworks over alleged falsification of the senate rules on which the election of the principal officers in June last year was based.
Kolawole held that the forgery charge against Saraki, Ekweremadu and others was done in a “desperate haste that was not in the public interest.”
Nnaji had on July 23 filed a case against the IGP and AGF at the Federal High Court challenging the propriety of the police report on the alleged forgery of the Senate Standing Rule. He later filed a motion ex-parte in which he asked the court to stop the IGP and AGF from taking any step on the police report, pending the determination of the originating summon.
Senator Suleiman Hunkuyi, who wrote the petition that culminated in the police report, had engaged Malami, then as a private lawyer, as one of his counsel that filed a motion for him to be joined as one of the defendants in the suit. As at press time, the name of Malami still appeared as one of the counsel representing Hunkuyi at the Federal High Court, Abuja.
Kolawole said he would have nullified the forgery charge filed by the AGF before an Abuja High Court and set it aside for being a gross abuse of court process if it had been filed before his court. He said the actions of the IGP and AGF, whose offices are created by law, were in bad taste because his court had in the civil action asked parties not to do anything on the police report during the pendency of the civil suit so as not to render the civil action nugatory.
The judge berated the AGF, saying he ought to use his power under the law to terminate any charge filed in breach of court process but he found himself as a promoter of such abuse. He said the AGF acted in bad faith because before his appointment as AGF, he was one of the leading lawyers to Hunkuyi who authored the petitions upon which the police report was prepared and upon which the forgery charge initiated by the federal government was predicated.
By his involvement as a private lawyer in the civil matter before the criminal charge was preferred against the defendants, Kolawole insisted that the AGF knew of the pendency of several court actions on the issues and ought to have used his office and law to terminate the flagrant abuse of the legal process.
The judge said, “In coming to a decision, I take due cognizance of the defendants, IGP and AGF, as offices created by the constitution, 1999 as amended. The first defendant (IGP) by virtue of section 215(a) of the constitution is a creation of the constitution and by virtue of section 215(2) of the constitution, shall command the Nigeria Police Force created by section 214(1). By reason of the provisions, it is not out of place to describe the first defendant as the ‘Chief Law Enforcement Officer of the Federation’.
“The second defendant (AGF) is a constitutional office created by section 150(1) of the constitution who the constitution describes as ‘The Chief Law Officer of the Federation’.
“The plaintiff’s motion ex parte dated 23/6/16 is one that seeks restraining orders against these two constitutional offices created by the constitution. Both are connected with law enforcement and by extension, due administration of justice. I say this with regard to the provision of section 174(1) – (3) of the constitution in relation to the constitutional powers of the second defendant.”
Kolawole declared further, “The criminal charge dated 10/6/16 attached as Exhibit B to the plaintiff’s motion ex pate is a criminal process filed on behalf of the second defendant by D.E. Kaswe, Esq. who signed the said charge as a Principal State Counsel for the Honourable Attorney-General of the Federation and Minister of Justice (who) was listed as one of the leading Senior Advocates of Nigeria who filed the motion of notice attached as Exhibit D to the plaintiff’s ex parte application and it was an application by which Hunkuyi, who until the learned Attorney-General of the Federation was appointed as the Minister of Justice, was his erstwhile client.”
The judge said, “Having regard to these issues, I asked myself what is the appropriate order this court can make given these peculiar facts of the involvement of the current occupant of the office created by Section 150(1) of the constitution – who doubled as it were, as one of the leading Counsels to the petitioner, Senator Suleiman Othman Hunkuyi, and fortuitously, was appointed by the President as the Minister of Justice?
“When I reflected on the Supreme Court’s decision in the State and Ilori, my view is that this court is somehow handicapped, in being able to query the second defendant’s decision and the power he exercised pursuant to section 174(1)(a) of the constitution to initiate the criminal charge attached as Exhibit B to the Plaintiff’s motion ex parte as any issue which this court may raise as regards the propriety or otherwise of his doing so will eventually, when shorn of all legal niceties, border on moral considerations.
“But, I am not in any doubt that when the provision of section 174(3) of the constitution is carefully read and construed vis-à-vis the peculiar facts of this case, it may not be too far-fetched to reason that the filing of the said criminal charge in the long run, constitutes an abuse of legal process which is one of the limiting considerations to the exercise of the constitutional powers conferred on the second defendant by virtue of section 174(1)(a) – (c) when read with its section 174(3) of the constitution.
“Although, when this section is read communally with section 174(3), it is arguable that Section 174(1)(c) is to be read with the need to prevent abuse of legal process in section 174(3) of the constitution.
“The converse situation, which the drafters of the constitution, perhaps never envisaged appears to have occurred in this case as the second defendant who is required by section 174(3) of the constitution to discontinue at any stage before judgement is delivered on any such criminal proceedings instituted or undertaken by him or any other authority or person where such proceedings constitute abuse of legal process, is in fact the very person who initiated a criminal proceeding in a matter in which he had, as a private legal practitioner, acted for one of the interested Senators who had petitioned the first defendant on 30/6/15.
“Regardless of whichever way it is looked at, I will still hold the view that constitutional powers conferred on all persons and authorities, including arms and agencies of government, are required to be exercised in good faith and where as in this instance, it relates to the institution of criminal proceedings, it must be seen to have been properly exercised strictly in public interest.
“But, having regard to the peculiar facts which I have analysed, the said criminal charge dated 10/6/16 and attached as exhibit B to the plaintiff’s motion ex parte dated 23/6/16, given the course of these proceedings as I had in detail highlighted, can only be seen as one that constitutes an abuse of legal process to use the very words in section 174(3) of the constitution.
“In all of these facts and issues, having regard to the pendency of this suit in which the defendants have both filed processes, one question that did not cease to resonate in my thoughts is why this desperate haste to prefer the criminal indictments in exhibit B the investigation of which is at the heart of this suit and of the parallel suit in exhibit E, and which indictments, by law are not time barred as the substantive suit before this court, had by consent of both the Plaintiff’s Counsel and the first defendant’s Counsel, been scheduled for 6/7/16 for hearing.
“It is the event of the steps taken by the defendants in utter defiance of this pending suit, that in my view, unobtrusively betrayed the possible genuineness of the defendants’ intention and of the second defendant’s motives as steps taken which are beyond serving the public interest by the commencement of a criminal trial in the FCT High Court in order to subvert the pending suits in the Federal High Court one of which has been fixed for 6/7/16.
“By the extant Supreme Court’s decisions, once a court comes to the decision that a particular process before it constitutes abuse of judicial or legal process, the appropriate orders it can make, is to put an end to the continuation of such proceeding.
“Do I proceed and make such order? I probably would have done so if the criminal charge dated 10/6/16 was pending before this court. But as it is, it is pending before my learned brother, the Hon. Justice Yusuf Halilu of the FCT High Court, which is a court of coordinate jurisdiction and who has become seised of the charge as at 21/6/16 when he adjourned it to 27/6/16 for the arraignment of the defendants listed in Exhibit B attached to the Plaintiff’s Motion Ex parte.”
However, addressing newsmen in Yola, Babachir absolved the federal government of all responsibility for the trial of Saraki and Ekweremadu, saying the two officers should prove their innocence in court. The SGF said, “They should have their day in court” rather than try to drag the entire National Assembly structure into the case.
According to Babachir, “The federal government is like a punching bag, but I don’t know why they are blaming the federal government or any person for this. When this issue started I was in the party as the National Vice Chairman. In June after the election and emergence of the leadership of the senate, some senators petitioned the police that the document used to conduct such election was forged.”