Tuesday, April 5, 2016 1:04 pm
The Code of Conduct Tribunal has adjourned for 15 minutes to rule on a request by Senate President, Senator Bukola Saraki for the adjournment of trial.
Before taking the decision to take a recess, Paul Usoro, standing in for Chief Kanu Agabi, had in his response to the argument of the prosecution counsel, Rotimi Jacobs, asked the tribunal to strike out the request for stay of proceedings before it if it constitutes abuse of court process.
He also argued that adjournment and stay of proceedings are not the same, hence they were treated differently in law.
He also argued that the principle of law for adjournment and stay of proceedings are different.
Usoro argued that there was no limit to the number of adjournment that can granted by a court in ACJA. He added that this was why the Act prescribe imposition of fines for frivolous request for adjournment.
While urging the court to accede to the request for adjournment, Usoro said the Tribunal would have succeeded in foisting a fait accompli on Court of Appeal and also render the application for stay of proceedings pending at the higher court nugatory.
He assured that since the court of appeal has fixed hearing for 26 April, the Tribunal can fix any date after 26 April for commencement of the trial
When proceedings began today, Usoro told Mr Danladi Umar, chairman of the tribunal that he was leading a team of 90 lawyers and apologised for the absence of Agabi, who was stranded in Akwa Ibom by flight difficulties.
Usoro told the tribunal after the senate President had entered the dock and Rotimi Jacobs had also announced his presence as the prosecution counsel that the trial could not proceed as the team had filed a motion for stay of proceedings pending the determination of a substantive appeal at the Federal Appeal Court.
Jacobs said he was served the motion for stay of proceedings about 30 minutes to the commencement of trial. He asked the court to proceed with the trial arguing that a motion filed when a court is about to proceed cannot stop the trial. He also said the motion was filed today 5 April.
“My Lord, we are ready,” said Rotimi.
But the defence counsel said the request for adjournment was not based on the process filed in court. He said the application was based on the ruling of the court of 24 March, 2016 which has been appealed.
He said the application for stay of proceedings filed before the Court of Appeal is already in the records of the Tribunal and pending before the Court of Appeal.
The motion, he said was for the court to stay proceedings of the Tribunal. He also informed the Tribunal that the Court of Appeal has already fixed 26 April for the hearing of the application which he said is only some days away.
Tribunal chairman, Umar’s colleague pointed out to Saraki’s lawyer that the Supreme Court decision he is citing to back his claim for stay of proceedings was made in 1990.
But the defence counsel said it doesn’t matter even if the decision was made in 1968. Consequently, the Chairman of the Tribunal called his attention to the provision of Administration Justice Act. The defence counsel said what the ACJA forbids is application for stay of proceedings, not application for an adjournment.
After hair splitting attempt by the defence counsel to distinguish between stay of proceedings and application for adjournment, the Tribunal Chairman asked him to make his points.
The Tribunal pointed out to him that all his arguments have been overtaken by section305 of ACJA.
Defence Counsel argued that if the trial proceeds, it will foist a fait accompli on Court of Appeal and will also render nugatory the application for stay of proceedings pending at the Appeal Court.
The defence counsel asked the Tribunal to fix any date after 26 April for commencement of trial.
In his response, Jacobs said though the defendant knew the case will come up today, he quickly filed an appeal at the Court of Appeal and also went to Court of Appeal to file records of proceedings which should be compiled by the Tribunal within 30 days.
Jacobs said it is only when the Tribunal failed to do its work that the appellant will be obliged to file his own records within stipulated time.
The Tribunal has 60 days to compile its records and transmit to the Court of Appeal and it is only at the expiration of the 60 days that the appellant has 30 days to compile its own record on the failure of the appellant to do it.
“But the appellant today because of what he wants to achieve file notice of appeal, the court records and muddled up the records,” said the prosecution counsel.
Jacobs therefore said he doubted if a proper appeal has been filed since the proper procedure was not followed.
He added that the motion at Court of Appeal was filed yesterday, but the copy given to him has no date of the 26 April for hearing as the Defence told the court.
Jacobs also pointed out that an application dated 5 April was filed before the Tribunal. The prosecution counsel said application for adjournment and stay of proceedings are one and the same as the objective is not to proceed with the case.
Jacobs pointed out that in the Supreme Court cited by the defence counsel, there were no application for stay in his words,”clear abuse” as in this case.
He argued that having filed a motion before the Tribunal, the Tribunal must rule on it. The Supreme Court was given in 1993 and the Justices knowing the damage unrestrained reliance on the application of that principle may cause in a judgment said that there was no order stopping the Tribunal.
He argued that the only order was that of the Supreme Court which said the Tribunal has jurisdiction and should proceed to hear the case. “It will amount to judicial impertinence and rascality to disregard the decision of the Supreme Court to proceed with the case”, Jacobs argued.
He also said the application at the Court of Appeal cannot override the decision of Supreme Court. Jacobs also argued that there was no ACJA in existence when the case cited by the defence lawyer was determined at the Supreme Court.
The Prosecution Counsel said section 305 and 306 said there should not be entertainment of the request for stay of proceedings and as such, the request by Saraki for adjournment was predicated on a false and voidable ground.
Jacobs also argued that the Supreme Court case will only apply at a sentence level. Jacobs accused the Defence of going to the media to defend itself and avoiding doing so in the court.
Jacobs said under the ACJA, a maximum adjournment that can be granted to any party is five, but said the defendants has asked for six adjournments already even before the commencement of proceedings.
He also said the defendant has filed three stay of proceedings before the Tribunal already. Jacobs asked the Tribunal to allow the trial to continue as he is ready to call his first witness.