By Evelyn Okakwu
As the trial of Nigeria’s suspended Chief Justice, Walter Onnoghen, continues on Friday, his lawyers are expected to discuss their application for a no-case submission before the Code of Conduct Tribunal.
Mr Onnoghen was arraigned at the CCT following a charge against him brought by the Code of Conduct Bureau in January.
The CCB accused Mr Onnoghen of failing to declare his assets from June 2005, after he became a Justice of the Supreme Court till December 2016, two months after the federal government raided the homes of several judges including those of the Supreme Court in October that year.
According to the six-count charge brought against him, Mr Onnoghen was also accused of false declaration of his assets, following his failure to include some domiciliary accounts managed by the Standard Chartered Bank.
The accounts, created in 2011 and used for the transfer of foreign currencies, were omitted in one of two forms filled on December 14, 2016, by Mr Onnoghen.
According to section 3(d) of the CCB act, the Bureau is empowered to receive complaints about cases of non-compliance with or breach of the act.
The section also empowers the CCB to refer such non-compliance to the CCT where the public officers accused of the alleged breach, will be tried according to the provisions of the act.
Mr Onnoghen’s trial, which began days before the suspended chief justice was expected to swear in members of the 2019 Election Petition Tribunal, attracted widespread criticism from various Nigerians.
The critics saw the trial as a plot by the executive to gag the judicial arm of government.
The prosecution team led by a lawyer, Aliu Umar, presented three witnesses before closing its case on March 21.
After the prosecution presented three of its witnesses, the defence team notified the tribunal presided by its chairman, Danladi Umar, of its intention to make a no-case-submission.
The implication of the intended submission according to them, was that the prosecution has failed to prove an allegation of false asset declaration against their client.
The lawyers led by Senior Advocate of Nigeria, Adegboyega Awomolo, had raised a number of issues during the cross-examination of prosecution witnesses to back their stance that the prosecution had failed to prove its case.
Non-verification of declaration form
One of such was a point noted by the defence that the Bureau failed to verify the forms included in the allegations against Mr Onnoghen.
Prompted by Mr Awomolo, the second prosecution witness, Awal Yakassai, confirmed that the CCB was yet to sign on the column meant for the verification of Mr Onnoghen’s declaration of assets.
According to section 15, (2) of the act: an allegation of violating the Code of Conduct Act can be brought by the Bureau after the person empowered to verify the declaration form has done so.
The section states thus: “Any statement in any declaration that is found to be false by any authority or person authorised in that behalf to verify it, shall be deemed to be a breach of this Act.”
Lawyers weigh in
Lawyers, speaking on the implication of the failure of the Bureau to verify the declaration form, gave divergent opinions about the non-verification of the form by the CCB.
According to a lawyer, Inibehe Effiong, the Supreme Court has already made a pronouncement regarding the implication of the Federal Government failing to verify the form.
“Since the matter is still ongoing, I would not want to pre-empt the tribunal. But I think what the defence is trying to establish is that the case against the Chief Justice was brought in bad faith. When a public official discloses his asset, the CCB is supposed to verify it.
“But during the Saraki case, the issue of verification came up and it does appear that the Supreme Court had taken a position that the failure of the prosecution to verify does not affect the charge. Where it is found that there was anticipatory declaration or under-declaration, for example, if that is substantiated: the fact that the declaration form was not verified may not necessarily affect the case of the prosecution. It appears that was the position taken by the Supreme Court at the time, but cases are treated on their merits,” Mr Effiong said.
The lawyer added that his opinion about Mr Onnoghen’s case has not changed.
“My concern about the Onnoghen’s case is that ab-initio the trial was meant to remove him from office. And his trial at the CCT does not resolve the question of his removal.
“I don’t want to pre-empt the tribunal, but I believe the tribunal in determining the charge should be extremely careful. I hope the CCT is mindful because the integrity of the tribunal itself is also on trial,” Mr Effiong said.
Differing, Senior Advocate of Nigeria, Simon Ameh, said the failure of the prosecution to verify the declaration form, renders the charge null and void.
“The effect is that if the Bureau was expected to have signed to indicate that it verified the form and it failed to do so, then we can say that the charge is of no effect,” Mr Ameh said.
Another point, noted by the defence team in furtherance of its submission about the” futility” of Mr Onnoghen’s trial is the decision of the tribunal itself to dismiss the case of alleged false asset charge brought against a fellow Supreme Court Justice, Sylvester Ngwuta.
The federal government had through the Bureau accused Mr Ngwuta of false asset declaration shortly after Mr Ngwuta was arraigned for alleged fraud at the Abuja Division of the Federal.
But in a decision of the tribunal in March 2018, it struck out the 10 counts of false asset charge, brought against Mr Ngwuta citing an earlier decision of the Court of Appeal, Lagos Division.
The appellate court had faulted the trial of serving judicial officers and held that the only body empowered to first indict a serving officer of that capacity is the National Judicial Council (NJC).
The council was created, in accordance with section 153 of the constitution, to discipline officers found culpable of acts regarded as professional misconduct.
According to section 2 of the Judicial Discipline Regulations; the NJC is empowered: “to exercise disciplinary control over Judicial Officers against whom allegation of misconduct has been made.”
While that ruling has remained a subject of controversy among lawyers, the appeal court pronouncement remains a subsisting law, with regards to the allegation of false asset charge against judges.
Consequently, the lawyers representing Mr Onnoghen have faulted the powers of the tribunal to try the suspended Chief Justice, while he remains a serving judge.
Also, the defence team had noted the speed with which the charges against Mr Onnoghen were filed and alleged connivance of the CCB with the petitioner whose charges had resulted in Mr Onnoghen’s allegations.
The petition which birthed the charge against Mr Onnoghen had been written by Denis Aghanya, a member of the ruling All Progressives Congress in Enugu State.
Dated January 7, the petition was received by the CCB on January, 9, according to the first prosecution witness, James Akpala.
Mr Akpala, a senior Investigative officer with the Bureau had told the tribunal that his office received the petition on January 9 and began investigating it, January 10.
Mr Akpala added that a team of investigators from his office visited Mr Onnoghen’s office on January 11 where they obtained his written statement in addition to bank documents to support the allegations.
While responding to questions from Mr Awomolo, Mr Akpala admitted that they completed their investigation and submitted their report to the CCT.
Mr Awomolo then noted that the charge against his client had been filed that same January 11, nearly three hours before the report was submitted to the tribunal.
In a reaction to this argument, Mr Ameh said the delay in submitting the prosecution’s report cannot affect the case against the defendant.
“That will have no effect; you can amend your processes when the need arises before the trial starts. It is only after the trial has started that you cannot amend unless with the leave of the court.”
Another point, likely to be raised by the defence, is a submission by lawyers against Mr Onnoghen’s trial, who cited the second paragraph of section 3 (d) of the CCB act, to support their claim that the instant trial is a failed adventure.
According to the paragraph, which shortly follows the section empowering the Bureau to accept complaints about non-compliance to the act, a report by the CCB to the tribunal, becomes unnecessary, given the approach of Mr Onnoghen to the allegation against him.
“Provided that where the person concerned makes a written admission of such breach or non-compliance, no reference to the Tribunal shall be necessary,” the section says.
After receiving the complaint against him, Mr Onnoghen had issued a statement to the Bureau, in which he admitted “forgetting” to add some information in the submitted forms and described his failure to renew the declaration, after 2005, as “mistake”.
While some Nigerians including members of the Judiciary have described the submissions of Mr Onnoghen as an admission of guilt, others view the statement as Mr Onnoghen’s ‘strongest defence’ at the tribunal.
Mr Ameh, however, says the statement made by Mr Onnoghen could be considered an establishment of the case against him.
“It is not a defence. Where there is an admission, it means that an offence has been established. What can then be required is a lighter sentence,” Mr Ameh said.
Mr Onnoghen became Nigeria’s Chief Justice on in March 2017.
He was suspended by the President on January, 25. Mr Buhari cited an order of the tribunal allowing Mr Onnoghen’s suspension.