Sagay, Solanke, others fault S’Court over Saraki’s case

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A professor of Law and Senior Advocate of Nigeria, Itsay Sagay, on Monday, described the decision of the Supreme Court to grant a stay of proceedings in the trial of Senate President Bukola Saraki at the Code of Conduct Tribunal as an illegality.

The first female lawyer to be conferred with the rank of SAN, Chief Folake Solanke, also agreed with the opinion of Mr. Femi Falana (SAN), who, in an article on Sunday, described the Supreme Court’s ruling as an illegality.

Falana had argued that in view of the provisions of the new Administration of Criminal Justice Act, which prohibits granting of stay of proceedings with respect to criminal cases, the pronouncement of the apex court should not be allowed to stand.

“Ordinarily, I don’t grant interview on the telephone, but I will just say that I am in agreement with Mr. Femi Falana. I am on the same page with Mr. Femi Falana,” she said.

Other lawyers, who also faulted the decision of the Supreme Court on Monday, were a Lagos-based lawyer, Mr. Jiti Ogunye, and the National President of the Committee for Defence of Human Rights, Mr. Malachy Ugwumadu.

Also, a former President of the Nigerian Bar Association, Mr. Olisa Agbakoba (SAN), admitted that the ACJ Act had abolished granting of order of stay of proceedings in criminal cases, but said the law was only applicable to the trial court.

Sagay, who heads the Presidential Advisory Committee against Corruption, recently set up by President Muhammadu Buhari, expressed shock at the ruling of the Justice John Fabiyi-led panel of the Supreme Court on November 12.

He added that there was the need to tell other lower courts not to follow the example allegedly being laid by the apex court.

Describing the ruling of the Supreme Court as an affront to the law, Sagay said the order of a stay of proceedings, granted by the apex court, was a bad example to the judiciary and the country at large.

Sagay stated, “The new Administration of Criminal Justice Act 2015 has completely eliminated any application or grant of stay of actions or proceedings in criminal trials; it prohibits it. So, what the Supreme Court has done is illegal and it is shocking that the Supreme Court would indulge in illegalities.

“It is a complete affront to the law that is binding on them(S’Court) and it is a bad example to the rest of the judiciary and the country. There is no question about that.”

On whether there was a way to reverse the Supreme Court’s decision, Sagay added, “That is why it is extremely bad that an institution in the position of the Supreme Court should begin to engage in illegalities because they are the ones who are supposed to revoke illegalities. Now, we have to call on them to revoke their own illegality and that is a more difficult thing because pride will make it difficult for them to accept that what they have done is an affront to the law. But that is the only thing that has to be done.

“And, as it is, we have to tell other lower courts that they should not follow that precedent because it is an illegal precedent.”

Agbakoba admitted that the ACJA had eliminated all kinds of undue delay in criminal trials, adding that the Code of Conduct Tribunal was right in the first place when it refused Saraki’s application for a stay of proceedings.

The former NBA President said, “The law has done away with all kinds of delays that used to make criminal trials to be unduly long. The Administration of Criminal Justice Act has created a number of fast-track procedures, which include minimum number of adjournment, which will allow a judge, trying a case in the high court, to start a case and finish it.”

He, however, emphasised that the ACJA applied only to proceedings before a trial court and not to the Court of Appeal and the Supreme Court as these higher courts were appellate courts and not trial courts as envisaged by the ACJA.

Ogunye, on his part, said the order by the Supreme Court lacked legal justification.

He said, “That order of stay of proceedings is without legal justification. The order cannot be founded on and be justified by the provision of the Administration of Criminal Justice Act.

“Lawyers defer to the Supreme Court because it is the highest court of the land, but being the highest court does not make it a court that should not observe the rule of law. All of us are bound by the rule of law.

“Sections 306 and 369 of the ACJ Act have expressly said there shall be no stay of proceedings in any criminal matter. It totally abolishes it and the Supreme Court cannot feign ignorance of this innovation.

“The Supreme Court has created precedent that will start haunting us. That was what happened in Ibori’s case when it was ruled that the jurisdiction of the Federal High Court is no longer one and so you have to prosecute an accused person at the place where the offence was committed.

“The law cannot develop when you look at the face of counsel or parties and change the law.”

In condemning the stay of proceedings granted by the Supreme Court, Ugwumadu said the order had defeated the main essence of the Administration of Criminal Justice Act, which was enacted to ensure speedy administration of criminal justice system.

The lawyer added, “By far more than what the extant provisions of the ACJ Act provide, it is also the background to the whole shenanigans. “For me, the provisions of sections 306 and 369 of the ACJ Act are to fulfil the exigencies of section 1(1) of the ACJ Act. While section 306 prohibits stay of proceedings, section 369 provides that all notices of preliminary objection shall be taken after the trial. If the tribunal (CCT) had been more fastidious with the provisions of the law, all these would not have happened.

“If the ruling class or the political class has found a way of protecting or shielding themselves from criminal prosecution, we are going to situate the fight against corruption in the struggle of the people’s court.”

Another lawyer and activist, Mr. Femi Aborisade, also admitted that the ACJ Act had abolished granting of a stay of proceedings in criminal trial, adding that the ruling of the Supreme Court in Saraki’s case, appeared to have flouted the provision of the new law.

Aborisade, however, said the Supreme Court could also be right since Saraki, through his lawyers, was challenging the applicability of the ACJ Act to the CCT’s proceedings in his appeal before the Supreme Court.

He said, “Strictly speaking, under section 306 of the ACJ Act, application for stay of proceedings in criminal matters shall not be entertained. The ruling of the Supreme Court, allowing a stay in Mr. Saraki trial, appears to be contrary to the provision of Section 306. To this extent, it is clearly in error.

“However, if the application for a stay at the Supreme Court is on the issue of jurisdiction, the ruling of the Supreme Court will be in order. It is a trite principle of law that a challenge to jurisdiction can be raised at any time, even for the first time on appeal.

“It should be noted that Section 396 of the ACJ Act does not provide that challenge to issues of jurisdiction shall be considered along with the substantive issues.”

Falana’s article, condemning the stay of proceedings granted in the Saraki’s trial by the Supreme Court had read in part, “It is unfathomable that the Supreme Court decided to return the country to the status quo ante in a rather brazen and bizarre manner. Given the ouster clause contained in section 306 of the AJCA, the Code of Conduct Tribunal ought not to have delivered its ruling in respect of the preliminary objections filed by Dr. Saraki.’’

Source: Punch