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*Charge constitute abuse of judicial process — Court
By Emmanuel Aziken, Political Editor &
Ikechukwu Nnochiri
Senator Ita Enang, the presidential liaison officer to the
Senate, was like a fish out of water, penultimate
Saturday, at the opening of the Senate Retreat on
Constitution Review at Eko Hotel, Lagos. A man who, in
ordinary times, would have flow with his former
colleagues, bantering and teasing one another,
stayed in one corner of the Expo Hall of Eko Hotel.
Enang’s difficulties were understandable.
Not only is he President Muhammadu Buhari’s
pointsman in the Senate, he is also a prosecution
witness in the forgery case filed by the Attorney
General of the Federation against the two presiding
officers of the Senate.
With Senate President Bukola Saraki and his deputy,
Senator Ike Ekweremadu taking central roles at the
opening ceremony, it was understandable that Enang
would somewhat fidget.
Fidgety or not, the gloves were formally put off, last
week, after Saraki and Ekweremadu were arraigned
at a Federal High Court on a two-count charge of
forgery. Arraigned with them were the immediate
past Clerk of the National Assembly, Alhaji Salisu
Maikasuwa, and his deputy, Mr. Ben Efeturie.
The worsening relationship between the Presidency
and the legislative branches of government aborted
the planned breaking of fast between the President
and principal officials of the legislature. The breaking
of fast was, however, not something some of the
legislators had even been keen about. One senior
official of the National Assembly narrated how, at a
previous interaction called to ponder over the fate of
the then controversial 2016 Budget proposals, the
President had seemingly talked down on them.
Presidential media assistant, Mallam Garba Shehu, in
a reaction to assertions that the face-off had led to
the cancellation of the breaking of fast, replied to the
contrary, alluding to what he called scheduling
difficulties.
Shehu said it was not a “cancellation.”
“Please don’t call it cancellation because nothing like
that happened. The President’s Iftar for the leadership
of the National Assembly was postponed, to be
rescheduled for another date,” he said.
However, by the weekend, the prospects of leaders of
the two arms of government sitting down to dine were
increasingly unlikely. Not after a Federal High Court
on Tuesday sitting in Abuja described the charges
against the four men as an abuse of court process.
Justice Gabriel Kolawole described the criminal
charges against the quartet as an abuse of court
processes on the fact that the Attorney General of the
Federation, Abubakar Malami, SAN proceeded to file
the charges despite the fact that a civil action on the
issue had been lodged since last year before his
court.
Senator Gilbert Nnaji had filed the action before
Justice Kolawole last year seeking to stop the court to
stop the AGF and the Inspector General of Police from
going ahead to take action on the police report into
the investigation of the issue of the alleged forgery of
the Senate Standing Order.
Interestingly, Malami acted as a counsel to the
defendants in the suit who were mainly members of
the Senate Unity Forum, SUF who were opposed to the
election of Senator Saraki as Senate President.
Malami, however, dropped out of the case after he
was appointed the AGF.
Justice Kolawole, who said he would have out rightly
dismissed the criminal charges if they had been
brought before his court, said that the AGF should
have used his discretion to stop any charge brought in
breach of court process given that a civil action was
already in action.
He specifically noted that the AGF, before his
appointment, was a counsel in the matter representing
Senator Suleiman Hunkuyi, who authored the petition to
the police that led to the police report under
contention.
Kolawole, in ruling said:
“The Plaintiff’s “motion ex parte” dated 23/6/16 is one
that seeks restraining orders against these two (2)
constitutional offices created by the constitution. Both
are connected with law enforcement and by
extension, due administration of justice”.
“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 2nd 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” 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 Senator
Suleiman Othman Hunkuyi, who until the learned
Attorney-General of the Federation was appointed as
the Minister of Justice, was his erstwhile client”.
“In the “list of witnesses and their addresses”, Senator
Suleiman Othman Hunkuyi, who wrote the “Petition” to
the 1st defendant on 30/6/15 – as the Secretary of
“The Unity Forum” in the Senate is listed as No. 1 of the
witnesses to be called by the state on the criminal
charge dated 10/6/16 which was filed whilst the instant
proceedings are still pending”.
“When I read the provisions of section 174(1) – (3) of
the constitution, as amended, I am not in any doubt,
that by section (174(2) of the constitution, that D.E.
Kaswe, Esq. who signed the criminal charge in exhibit
“b” as “principal state counsel” did so on the authority
of the 2nd defendant”.
“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?”
“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
analyzed, 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 1st 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 2nd 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 co-ordinate 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” .
The prospects of a quick resolution of the suit against
Saraki and Ekweremadu were not helped by the sharp
exchange of words that followed the arraignment of
the four men on Monday. Saraki, in his sharpest
criticism of the President, claimed that a cabal had
hijacked power from Buhari. Ekweremadu also
alleged a persecution against him on account of his
position as the highest political office holder in the
Peoples Democratic Party, PDP, even as he insinuated
a quiet marginalisation of his section of the country
where Buhari received the fewest votes in last year’s
presidential election.
The Deputy Senate President further rattled the
Presidency when he circulated his issues with the
Federal Government and his trial to the international
community, putting Buhari’s increasing aptitude for
international acclaim in jeopardy.
Fireworks
Apparently harried by the assertions of the two men,
the Presidency replied the two top lawmakers, on
Tuesday, through the Secretary to the Government of
the Federation, SGF, Mr. Babachir David Lawal,
popularly referred to as BD Lawal within the Buhari
inner caucus. The SGF charged the two men to
resign, a tone that some stakeholders had claimed
had all along been the desire of the Presidency.
“The complaint leading to the forgery investigation
was reported to the Police by some aggrieved
Senators who specifically accused certain persons. It
is not the Senate of the Federal Republic of Nigeria
that is involved and not the House of Representatives,”
Lawal said in a statement.
His suggestion that Saraki and Ekweremadu were
specifically accused of forging the Senate rules has
been pooh-poohed by the two men who have
repeatedly claimed that the petition to the police and
the police report on the investigation did not mention
any of them.
That claim apparently took further importance as the
trial commenced last Monday when it was discovered
that the police report on the investigation was not
included in the court processes. Associates of the men
under trial implied that the report could not be used
to successfully prosecute the men who are claiming
that the application of judicial sanction on the internal
processes of the Senate was a violation of the principle
of separation of power.
Meanwhile, the claim that the Senate President ruled
the disputed Standing Order as authentic, on June 24,
2015, may have also complicated the matter as there
is no record of any senator disputing the ruling of
Saraki on the matter.
As things are, Enang’s discomfiture over the issue has
not eased. At the weekend, the presidential adviser
tried to explain himself on his role as a prosecution
witness against the Senate President and his deputy.
He said that his enlistment flowed from his role as the
Chairman of the Senate Committee on Rules and
Business in the immediate past Senate and not
necessarily on account of his position as a presidential
aide.
Whatever the case, that assertion is the proof for critics
who say that the trial of Saraki and Ekweremadu is
geared at settling issues that preceded their election
as the Senate chief helmsmen.
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