SARAKI'S CCT TRIAL: JUSTICE DANLADI UMAR BOMBED!!!

THE TRIAL OF DR. BUKOLA SARAKI, THE JUSTICE DANLADI UMARS OF THIS WORLD; AND THE JUDGMENT OF GOD.

“Four things belong to a Judge, to hear courteously, to answer wisely, to consider soberly, and to decide impartially”…………… Socrates, the Ancient Greek Philosopher

PREFATORY REMARKS:

The ancient fathers of the law have always counseled that a Judge should, of necessity, possess two salts nay; the salt of intelligence lest he becomes stupid and the salt of conscience lest he becomes insipid. This tallies with the age-long axiom that the ignorance of the Judge is the calamity of the innocent. These resonate with the apt admonition handed down by Justice Fabiyi, J.S.C. to the effect that “it is not part of the duty of a Judge to operate in terrorem. Let me quietly say it that a Judge should be serene, temperate and cautious to well-behaved counsel and witnesses who come before him” See F.R.N. v. Akabueze [2010] 17 NWLR (Pt. 1223) S.C. 525 at page 540.

BACKGROUND FACTS:

It is no longer news that the current President of the Nigerian Senate, Dr. Abubakar Bukola Saraki, is standing trial before the Code of Conduct Tribunal (henceforth in this article called CCT)sitting in Jabi axis of the Federal Capital Territory, Abuja where Honourable Justice Danladi Umar, Esq, is presiding as the Chairman. Members of the public who have been following the proceedings before the CCT will readily recall that the Tribunal’s jurisdiction to try the Senate President was challenged by the Defence team led by a former Chairman of the Nigerian Bar Association, Mr. J.B. Daudu, SAN. That challenge to the competency of the Tribunal snowballed into an empty legal battle which raised so many constitutional issues in our jurisprudence that finally settled at the apex court. The outcome of that keen contest is now reported as Saraki v. F.R.N. [2016] NWLR (Pt. 1500). Essentially, the beneficial impact of that judgment on the trial of the Senate President is to the effect that the appropriate quorum of the CCT is the Chairman and at least one member. However, shortly after the decision of the Supreme Court, the new Defence team of the Senate President, now led by Chief Kanu Agabi, SAN, brought yet another motion challenging the jurisdiction of the CCT anchored on apparently different grounds from the earlier motion leading to the pronouncement of the Supreme Court. That motion was hotly argued between the Defence team and the Prosecution which ended in favour of the latter. That cleared the coast for Dr. Saraki’s trial to commence in earnest. That Ruling of the CCT assuming jurisdiction is now pending before the Court of Appeal, Abuja Division. Before I go further, let me quickly delimit the contours and boundaries of this discussion for clarity of thought and flow of logic.

OBJECTIVE/SCOPE:

What inspired this write-up is the observations made by this writer of the proceeding of the CCT presided over by Justice Danladi Umar in the trial of Dr. Saraki. What lies at the heart of this reflection therefore is the dissection of the manner in which the trial of the Senate President has so far been handled by Justice Danladi Umar especially against the backdrop of the constitutional requirement of fair hearing. In the most diligent manner possible, this writer will proceed to advance reasons supporting the view that the sacred constitutional requirements of fair-hearing and impartial adjudication have all been abandoned by the Danladi’s Tribunal in a manner that have clothed justice in darkness. The trial of Dr. Saraki has given cause to query the fidelity of Danladi Umar’s Tribunal to the constitutional doctrine of audi alterem partem. This piece will isolate and accentuate two conducts of the Tribunal for examination for the purposes of establishing that what have been transpiring so far before the CCT sitting in Jabi have constituted a grave challenge to our constitutional order.

ANY AUTHORITY TO PROCEED AS I INTEND?:

The first question is whether the conduct of a Judge or a Court could be criticized? Put in another language; is it contempt of Court to criticize the conduct of a Judge or the conduct of a Court? I find the answer in the immortal words of an immortal being, Lord Denning, where in the case of R. v. Metropolitan Police Comr [1962] 2 ALL E.R. 319 320 he answered as follows;

“That article is certainly critical of this court. This is the first case, so far as I know; where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticisms, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.”

More emphatic on this issue is the answer rendered by the Nigerian Supreme Court in the decided case of Okoduwa v. The State [1988] 1 N.S.C.C. vol. 19, page 718, wherein Nnamani, J.S.C. (of blessed memory) stated thus;

“It is settled that it is not contempt of court to criticize the conduct of a Judge or the conduct of a court even if such criticism is strongly worded provided that the criticism is fair, temperate and made in good faith.”

CRITICISING JUSTICE DANLADI UMAR’S CONDUCTS:

Going through the entire proceedings so far, which this writer has been privileged to attend at the CCT in Jabi, two conducts of Justice Danladi Umar have been accentuated for criticism and they are;

(a)   His conduct over the Motion on Bias filed by one of Dr. Saraki’s Counsel,  Oluyode, Esq.

(b)   His conduct on the 7^th day of June, 2016 in relation to the cross-examination of the Prosecution Witness, Wetkas, by one of the defence counsel, Paul Usoro, SAN.

I will take them seriatim.

1.      OLUYODE’S MOTION ON BIAS:

One of Dr. Saraki’s Lawyers, Oluyode, Esq., informed the Tribunal that the defendant standing trial before it has a motion seeking order of the Tribunal directing the Tribunal Chairman to recuse himself from further participating in the trial as he would not be impartial given his cloudy relationship with the Economic and Financial Crimes Commission (EFCC) that granted him (justice Danladi Umar) administrative bail owing to some criminal investigations against him by the Commission especially in the light of the fact that EFCC’s Chief Prosecutor is the same person now prosecuting the Senate President. The Tribunal Chairman did not allow Mr. Oluyode to move that motion, at least that day. He ordered him to sit down or he would be charged with contempt. In his emotional outburst, the Tribunal Chairman declared the motion as a “rubbish”. True to his threat, justice Umar directed the police orderly attached to the Tribunal to bundle Mr. Oluyode out of the Tribunal. The video record of that unfortunate scenario went viral within seconds and those who watched same would confirm this account.

MATTERS ARISING:

Now, what is the position of the law in the circumstances described above? It is settled law that when a party believes that the judge before whom his matter is being tried is out to undo him come what may, he is entitled and indeed required to file a formal motion of charge of bias against the said judge. What then is a charge of bias? May we respectfully invite the ever-indomitable Justice Tobi to render the answer thus;

“A charge of bias arises when a Judge shows an act of partiality, see Akinfe v. The State (1988) 3 NWLR (pt. 85) 729. Etymologically, bias means slant, personal inclination or preference; a one-sided inclination. It also means a preconceived opinion, a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. Bias creates a condition of mind which sways judgment and renders a Judge unable to exercise his functions impartially in a particular case.

There is another expression and it is likelihood of bias. When a party in an action contends that there is likelihood of bias, he is anticipating that the Judge will be biased in the judicial process. The act of bias is not formalized. The act of bias is not concretized, but by the generality of the conduct of the judge, the possibility of bias is overt. And the possibility is substantial. See generally LPDC v. Chief Fawehinmi (1985) 2 NWLR (pt. 7) 300. In a charge of bias, the integrity, honesty or fidelity of purpose and the Judge’s traditional role of holding the balance in the matter are questioned. He is branded or seen as one who leaves his exalted, respected and traditional arena of impartiality to descend unfairly on one of the parties outside all known canons of judicial discretion. The Judge is said to have a particular interest, a proprietary interest which cannot be justified on the scale of justice, as he parades that interest recklessly and parochially in the adjudication process to the detriment of the party he hates and to the obvious advantage of the party he likes. The Judge, at that level, is incapable of rational thinking and therefore rational judgment. His thoughts are blurred against the party he hates. He is poised for a fight, an uninstigated fight in which he is the main participant. The conduct of the Judge invariably and unequivocally points to one trend and it is that he will give judgment to the party he favours at all cost, come day or night, come rain or sunshine. Such is the terrible state of mind of the biased Judge or one who is likely to be biased.” See the case of Eriobunah v. Obiorah (1999) 8 NWLR (pt. 616) C.A. 622 at 643 to 644.

The above being the position of the law, it would be seen that Dr. Saraki was well within his rights and duly followed the law in raising the complaint of bias against Justice Danladi Umar. It is also the law that whenever an application or a motion is filed and the attention of the court is drawn to it, the applicant is entitled willy-nilly to be heard on it. It becomes a sacred duty on such a Court/Tribunal to hear and rule on such application one way or the other. Justice Danladi Umar therefore fell into a patent error when in anger he refused to hear the motion filed by Dr. Saraki through Mr. Oluyode, Esq. This position of the law was accurately and carefully stated by Justice Tobi when he pronounced thus;

“A court of law or a tribunal has a legal duty to hear any court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of court process. The court must hear the party or parties and rule one way or the other.  Judge, whether of a court of law or tribunal, has no jurisdiction to come to a conclusion by resorting to his wisdom outside established due process that a motion cannot be heard because it has no merit. That does not lie in the mouth of a Judge in our adversary system of adjudication.” See Eriobunah v. Obiorah (1999) 8 NWLR (pt. 616) C.A. 622 at 642.

Instead of Justice Danladi Umar hearing the motion filed by Mr. Oluyode and ruling on its merit, he ‘resorted to his own wisdom outside established due process’ to declare it a rubbish and refused to hear same. He went to the extent of threatening the counsel with contempt. Was he right in so doing? In Okoduwa v. The State (supra), where counsel’s attempt at moving a motion seeking that the presiding Judge be disqualified, was charged with conspiracy, together with the accused persons, to undermine the dignity of the court. In condemning the learned trial Judge and upturning his judgment in that case, the Supreme Court held as follows;

“Viewed from this perspective, it appears clear to me that the learned Judge’s invocation of his power to punish for contempt of his court in the circumstances of this case is an unwarranted exhibition of naked judicial power. That should have been avoided. After all, the rational for contempt is the need to vindicate the dignity of the court and thereby protect due administration of justice, rather than bolster the power and dignity of the Judge as an individual: See Shipworth’s Case (1873) L.R. 9 D.B. 230 at 232. Worse, by such an unwarranted exhibition of naked judicial power which put counsel and their clients in fear of the court, an important trammel of fair hearing had been eroded… I cannot over-emphasize that in our adversary system of administration of justice the freedom of counsel to put across his client’s case without fear or favour, is a most important ingredient. The element was very much lacking in this case.”

2.      JUSTICE DANLADI UMAR’S CONDUCT ON 7^th JUNE, 2016:

In the course of the proceedings of 7^th June, 2016, while the Prosecution witness was under cross-examination, Justice Danladi Umar stated as follows;

“I am not happy at the delay tactics by the defence counsel and I must say this thing out that this delay tactics will not reduce the consequences the defendant will meet in this tribunal at the end of the trial,”

The above statement obviously was not supposed to come from the mouth of an impartial arbiter. He threatened that the defendant standing trial will “meet consequences from the tribunal at the end of the trial”. He went further to add that the consequences alluded to shall not be “reduced”. This unfortunate statement, which did not go down well with both the Defendant and his Lawyers, prompted the Defence team to file yet another motion on bias asking the Tribunal Chairman to disqualify himself from further sitting on that particular matter. That motion has been argued and Ruling thereon reserved till 11^th July, 2016. It will be remembered that the Prosecution witness who is under cross-examination by the Defence team tendered massive documents exceeding two thousand pages on which the prosecution is relying on in expecting to ground the conviction of Dr. Saraki. This particular Prosecution witness gave evidence for days to his satisfaction without any complaint from any quarters. How come the Defendant is not equally being allowed to test the veracity or otherwise of such testimony by diligent cross-examination? It is indeed his right, and a constitutional right for that matter which cannot be abridged by anybody. In fact, I will go further to add that the defence has the constitutional right to cross-examine the Prosecution Witness on ALL the pages of the documentary exhibits tendered. That is fair hearing as loudly embodied in the audi alteram partem principle. Of this ancient principle, the Supreme Court in F.R.N. v. Akabueze (supra), speaking through Ogbuagu, J.S.C, pronounced with magisterial finality thus;

“…It is now firmly settled that the rule of audi alteram partem postulates that the court or other tribunal, must hear both sides at every material stage of the proceedings before handing down a decision at that stage. It is a rule of fairness and a court or tribunal, cannot be fair unless it considers both sides. It can therefore not be over-emphasized and this also is settled that the very essence of fair hearing… is a hearing which is fair to both parties to the suit be they plaintiffs or defendants or prosecution or defence.”

Justice Danladi Umar or indeed any other Judge has no power to hear any application and rule in anger as was the case with Oluyode’s motion. Warning against terrible disposition, Justice Tobi, cautioned judicial officers in this very words which I will now respectfully reproduce;

“No Judge, trial or appellate, has the right to give a ruling or judgment in annoyance or ruling in anger. That state of mind will certainly be prejudicial to one of the parties, thus hurting the fair hearing principle duly entrenched in the Constitution. A Judge must keep his mind totally free in the judicial process, and this means that he must disabuse his mind of all possible prejudices and antagonisms.”

See Isamade v. Okei (1998) 2 NWLR (pt. 538) 455 at 468.

It was the immodestness in the exchange of words with counsel that impelled the Supreme Court to set aside a High Court judgment in Okoduwa v. The State. It was again the immoderate exchange of words and threat to counsel, among other things, that led the Supreme Court to set aside the conviction and sentence of the accused. See Grace Akinfe v. The State (1988) 3 NWLR (pt. 85) 729 at 741. Justice Ogbuagu of the Supreme Court has taught us that “patience and gravity of hearing, is said to be an essential part of justice”. See F.R.N. v. Akabueze (supra). In Bakare v. Apena (1986) 4 NWLR (pt. 33) 1, Justice Obaseki, J.S.C. taught us that “a trial Judge ought to know that he is on trial for any improper conduct during the trial of a case before him and immediately thereafter.” Also from the Court of Appeal Bench, Justice Fabiyi has equally counseled that “Sobriety should be the first watch-word for anyone who, per chance, finds himself in the exalted position of a Judge. A judicial officer should not be talkative or loquacious… Above all, a judge should not be biased under any guise.” See Eriobunah v. Obiorah (1999) 8 NWLR (pt. 616) C.A. 622 at 646.

RECAPITULATION:

A Judge that allows a prosecution witness to give evidence for days, to his satisfaction, and who in the process tendered tons of documents running into thousands of pages while denying the defence the opportunity to thoroughly cross-examine the same witness so as to test the veracity or otherwise of his testimony is biased. He is biased because that conduct is against the spirit of fair hearing. That makes him a partial arbiter. A Judge who, instead of allowing counsel to move a motion of bias against him, threatens counsel with contempt, is biased and at the same time operating “in terrorem” which is outside the parameters of his jurisdiction. See F.R.N. v. Akabueze (supra). A Judge who has warned the Defence team of lawyers that the “consequences the defendant will meet from the tribunal at the end of the trial shall not be reduced” at a time when the Prosecution is yet to close its case is certainly biased against the Defendant. It therefore becomes imperative, once more, that people like Justice Danladi Umar of our time be reminded of the seasoned admonition of Justice Tobi when he counseled thus;

“A Judge by the nature of his position and professional calling, is expected to be straightforward, upright, diligent, consistent and open in whatever he does in court and in any other place of human interaction and human endeavor that he happens to find himself. This is because his character as a Judge is public property. He is the cynosure of the entire adjudication in the court, and like Caesar’s wife  of Ancient Rome, he is expected to live above board and above suspicion, and he must live above board and above suspicion, if the judicial process should not experience any reverse or suffer any detriment. A Judge should know that by the nature of his judicial functions, he is persistently and consistently on trial for any improper conduct immediately before, during and immediately after the trial of a case.” See Eriobunah v. Obiorah (supra) at page 643.

What crystallizes from our discussion so far is that a biased Judge is a corrupt judge. To find otherwise would certainly be eyewash. And this realization brings us to the problems a corrupt judge poses to a nation’s judiciary and the society at large. It was aptly captured by Justice Saulawa, J.C.A. in this beautiful language. Hear him;

“The problem of a corrupt judicial officer is equally antithetical and rather devastating to the well cherished rule of law. Undoubtedly, the conscience of a corrupt judicial officer is warped. His judicial oath means nothing at all, thus he hardly realizes that he is a dangerous obstacle to administration of justice. Perhaps, until nemesis catches up with him, he remains a perpetual obstacle in the way of justice. Otherwise, he is impervious to appreciate, let alone uphold, justice according to the rule of law.”

See Daniel v. F.R.N. (2012) 4 NWLR (Pt 1289) 40

IS DR. SARAKI GUILTY AS CHARGED?:
Arguments have been advanced in some (even well-informed) quarters that ‘by whatever means’ Saraki should be hauled into jail or sent to the gallows in reckoning with the perceived enormity of his misdeeds both political, economic and otherwise especially in this era of a massive fight against corruption. Understandably, many political heavyweights have different political scores to settle with Dr. Saraki. I totally endorse the conclusion that anybody weighed and found wanting on the scale of our laws should be made to reckon with the consequences ordained by the laws of the land. He should be served with his just desert. However, I totally disagree with the insistence in some quarters that such consequences ordained by our laws should be on a free fall and must befall a particular person “by whatever means”. That line of reasoning is fundamentally flawed. The decision to apply such consequences in deserving cases must follow the due process of law. The position I have taken is strengthened and vindicated by the reasoning of the Nigerian Supreme Court in Ndidi v. The State (2007) 5 S,C, 175 at 196 thus;

“Although the offence with which the appellant was charged was a serious one i.e. robbery – which now becomes a cankerworm in the Nigerian society and which of course requires drastic, urgent and effective solution to curb it, we should not forget that in criminal trials, particularly in capital offences, the trial court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and awaits the hangman to execute him at any single minute, must be punctuated by a logical thinking based on a cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.”

As if Justice Muhammad of the Supreme Court had in mind the manner in which the CCT is currently handling Saraki’s trial when he wrote his judgment, he went further to add this instructive warning;

“The cardinal principle of trial in criminal cases is that the trial court must not be seen to appear to look for excuse to shore up the case of the prosecution to get a conviction anyhow. Such an attitude of ignoble practice only portrays the court as anything but impartial arbiter. It is reprehensible for any court to portray any attitude that shows tendency to get conviction at all cost for the prosecution. In that case, the court would have now turned itself into a prosecutor. A court of law or reasonable tribunal should be wary of such a practice.”

CONCLUSION:

In signing off this piece, it bears reminding judicial officers in the mold of justice Danladi Umar of that priceless admonition handed down to all judges by the great Master of the Rolls, Lord Denning, in his classic, Family Story at page 162. Hear him;

“When a judge sits to try a case he is himself on trial before his fellow countrymen (gathered in the courtroom.) It is on his behavior that they will form their opinion of our system of justice. He must be robed in the scarlet of the Red Judge – so as to show that he represents the majesty of the law. He must be dignified – so as to earn the respect of all who appear before him. He must be alert – to follow all that goes on. He must be understanding to show that he is aware of the temptations that beset everyone. He must be merciful – so as to show that he too has the quality which ‘droppeth as the gentle rain from heaven upon the place beneath’.”

PRAYER:

As I am dropping my pen, I pray for my nation, Nigeria. May we no longer continue to produce Danladi Umars in our Judiciary. May my generation never ever witness a judiciary peopled by the Danladi Umars of this world. May myself, my loved ones and friends never suffer the grave misfortune of having any of our matters tried in a court or tribunal where the Danladi Umars of this world are presiding. May our matters never be heard in a court or tribunal where justice is clothed in darkness, where finding justice is akin to finding a needle in a haystack. At last, we are assured by the sacred scripture that notwithstanding the biased judgments of the Danladi Umars of this world, God’s supreme judgment will overtake us all. We all must stand before the Supreme Master and the Great Architect of the universe. In the evening of our lives, we must come before that incorruptible Judge whose judgment is just and final. We are rest assured and consoled that in the end, untainted and unadulterated justice will “surge like waters, and righteousness like an unfailing stream”(Amos 5: 24). I say no more.

JOHNMARY CHUKWUKASI JIDEOBI, Esq.