A Lingering Legal Tussle on the Verge of Denouement

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With the twists and turns so far thrown up in the trial of the President of the Senate, Dr. Bukola Saraki, the case is gradually drawing to a close with the prosecution closing its case  and the expectation of a no-case-submission by the defence team. Olawale Olaleye, who has been following the proceedings, writes

With the ongoing case of false declaration of assets against the President of the Senate, Dr. Abubakar Olubukola Saraki, gradually winding to a dramatic close, it stands out as one trial that would go down in history as a good case study for analysis in political science classes. With the charges against Saraki amended a few times by the federal government to sit well with what many had come to tag as predetermined notions, the twists and turns have also become some form of comic relief, even when the gladiators might have begun to count their losses.

Mr. Samuel Madojemu, a former Head of Investigation Division at the Code of Conduct Bureau (CCB) was recently cross-examined by the defence. Madojemu, who has spent 20 years in the CCB, was part of the CCB-EFCC joint investigation into the assets of Saraki. It was expected, therefore, that Madojemu would have a good time in the witness box as both sides needed to get as much as possible from him to help their case.

Although his examiner-in-chief was not quite dramatic as he merely put out the already known facts earlier presented by the first prosecution witness, Michael Wetkas, an EFCC operative, this very cross-examination was indeed eventful. Conducted by Chief Kanu Agabi (SAN) and his colleague, Paul Erokoro (SAN), over four days, the totality of Madojemu’s evidence during cross-examination might have changed the course of the case as he made startling revelations.

An analysis of the charges showed that eight of them were about properties owned by companies in which the defendant holds substantial shares as declared in his seven asset declaration forms. There are also charges concerning source of money for the purchase of property, cash lodgment and possession of credit cards allegedly not declared on the forms. The other charges are on failure to declare property, failure to declare a loan, whether interest in one of the companies is substantial or not and allegation of collecting double salary as a public officer.

The defence team took the witness through each of the counts in order to get evidence that will strengthen their case. For example, the defence asked Madojemu whether any law prevents a public officer from owning shares in companies. He answered in the negative and added a proviso that the public officer must however declare the shares in his asset form.

At a different time, they made him read through the defendant’s asset declaration forms and asked if the defendant mentioned his shares in the companies said to own some of the properties he was being prosecuted for owning. He agreed that Saraki declared his “substantial shares” in the companies. Erokoro also asked Madojemu whether there was any column in the asset declaration form provided for declaring properties owned by companies in which the declarant had interest. The witness said there was none.

Suffice it to say that the issues of properties owned by companies, where Saraki  has substantial shares form the basis of Counts 1, 2, 3, 9, 10, 11, 12, and 13 on the charge list. But with those answers, the defence had successfully knocked out the eight charges against their client to the extent that he did not violate any law by not declaring properties owned by companies in which he has interest. All that was required of him was to declare his interest in those companies. And the witness agreed he did so.

In his evidence during the cross-examination, Madojemu after reading out the contents of the asset declaration forms filled by Saraki, was asked if the defendant through one of his companies, Carlisle Properties Limited actually owned the property on No. 15A McDonald, Ikoyi since 2000. He agreed that the federal government sold the property to G & C in 1997 and that Saraki’s company bought the property in 2002 from G & C.

The property was therefore not purchased by Saraki in 2006, when he was governor as earlier claimed by EFCC. The contention of the prosecution that since the federal government sold the property in 1997 to G &C Properties Limited, Saraki could not have owned it before he became governor in 2003 and was therefore not tenable. This admission effectively nullified the charge of anticipatory declaration, which the prosecution had initially leveled against the defendant.

The Prosecution had at the beginning of the trial dramatised the charge of anticipatory declaration and whipped up public sentiment against Saraki. The impression created by this was that Saraki was a criminal to have declared assets he did not own before assuming office with a view to acquiring them later.

Madojemu was again asked whether he had seen the contents of the various declaration forms filled by the defendant. He answered in the affirmative. He was then asked to read aloud the asset declaration forms filled by the defendant, where he stated that the source of funds for the purchase of the said properties were “proceeds of sale of sugar/rice/loans”.

On reading out these sections of the forms, it became clear again that in formulating counts 4 and 5 on the charge sheet, the prosecution did not properly scrutinise the contents of the forms. Here, the case of rushing to prosecute without proper examination of the facts also became glaring and clearly established.

The defence thus followed up on that angle when it asked the witness whether there was anything that prevented a company in which a public officer had interest from engaging in the sale of rice and sugar. He said no. A follow up question was whether there was anything that prevented the proceeds from such business engaged in by the defendant’s company from being used to defray loans on properties that he acquired. Madojemu answered in the negative but added that the defendant must not fail to declare the property purchased with such loan.

These questions and answers served as effective defence to counts 4 and 5, which had accused the defendant of making false declaration in the asset form for public officers at the end of his tenure as governor and beginning of his first tenure as Senator that he acquired No. 17 A and 17 B McDonald, Ikoyi, Lagos with proceeds from sale of rice and sugar commodities whereas the said properties were acquired with bank loan

On count 6, the defence, again, in the process of asking Madojemu to read loudly the contents of Saraki’s Asset declaration forms to the hearing of the Tribunal, called his attention to the fact that Saraki filled a portion in which he mentioned that he had outstanding balance on loans. He agreed. Also, a question as to whether there was a column provided in the asset declaration form for giving details of cash lodgments by the declarant was answered in the negative by the witness, thereby effectively exonerating the defendant of counts 7 and 8 on the charge sheet.

The defence lawyer, Erokoro, went on to query how the prosecutor arrived at the fact that the repayment of a loan of N497, 200, 000 was “not fairly attributable to the income, gifts and loan approved by the Code of Conduct for a public officer”. The witness said they calculated the salary of the defendant as a governor and the entries in the bank statement. The defence lawyer then asked whether the investigators believed that the companies owned by the defendant do not have the capacity to generate as much money.

He reminded the witness that the first prosecution witness, Wetkas, admitted that as at 2003, Saraki’s assets were worth $23 million and that if the companies are generating ten per cent of that total assets as profit, whether that would not pay for the loan. Madojemu agreed with him that the companies could generate income to pay back the loan. The narratives were aimed at addressing count 7 of the charges where Saraki’s ability to repay a loan of N497, 200, 000 was being questioned.

On count 14 where the defendant was accused of not declaring a property in London purchased with a loan from GT Bank, the defence referred the witness to a section of the form requiring information on the landed properties owned by the defendant, where he specifically mentioned his house in London. The witness confirmed the entry. His answer could be interpreted to mean that the London house so declared was the one purchased with the said loan.

The defence also asked Madojemu to show the column in the asset declaration form, where it was required of a declarant to mention that he has credit or debit card. The witness agreed that no such column exists. This means a public official is not expected to declare his ownership or possession of credit or debit cards. The answer was aimed at addressing counts 15 and 16, where Saraki was accused of transferring money from his domiciliary accounts in GT Bank to American Express Services Europe for the purpose of buying a property and operating a credit card.

In count 17 where Saraki was accused of receiving salary from Kwara State Government at the same time he was being paid as a Senator, the defence asked Madojemu if he and his team came to that conclusion after interrogating officials of the Kwara State government. He said they only relied on Saraki’s bank details in an Access Bank account. He was also asked if he knew about Kwara State Pension law for former public officials. The witness said he did not know about the law.

In the follow up question, the witness was made to admit that bank error could occur in the course of making entries on bank’s transactions. In essence, the major ingredient of proving that charge is to confirm from the Kwara State Ministry of Finance whether the payment was a salary or pension. Saraki, it was therefore submitted, is lawfully entitled to pension and the entry being relied upon was for pension not salary.

On the last charge, count 18 which states that Saraki falsely declared that he owned substantial share in Carlisle Property Limited and Tiny Tee Limited, the defence  allowed the witness to do the calculation in the shareholding to prove that his client’s shares are indeed “substantial and controlling” as he claimed.

Facts from the investigation by Madojemu which came out from the cross-examination were actually revealing. He admitted, for example, that Saraki’s assets across the country have never been verified until last month, when he and his colleagues visited some of the properties in Lagos. He also noted that Saraki’s was the first case where the CCB prosecutor would be given oral directive to commence investigation and where the reports were also made orally, without any record.

Consequently, the evidence therefrom further raises some pertinent questions. For instance, how could the investigators still be seeking facts to prosecute a case which commenced two years ago? Were they not ready with all the necessary evidence and exhibits before taking the matter to trial? This revelation not only undermines the integrity of the entire trial, it shows how the EFCC and other anti-corruption agencies always predetermine a case and then work to achieve the existing answer. The anti-graft agencies really need to overhaul their investigative machinery and improve the capacities of their officers.

It is also obvious from the evidence of the 3rd prosecution witness that even the CCB needs to review the Asset Declaration form, update it and make it reflect international best practices. It is difficult, for example, to believe the asset declaration forms do not have space for public officials to declare their credit and debit cards as well as the funds available on it. In this cashless era of e-transactions, the CCB should find a way to include credit and debit card declaration in its forms so that public officials do not find it easy to circumvent the law.

Given the manner the defence pointed out facts, which were available on the declaration forms but eluded the prosecution and made some of the charges needless was an eye opener on the fact that the EFCC, which did the investigation was not thorough in its findings. The agency and the CCB did not check their facts well before rushing to prosecute. It also lent credence to the allegation that the entire trial was politically motivated. It is compelling that the EFCC and other anti-graft agencies learn from the Saraki case to be more diligent and discerning in their investigations so that they can make the jobs of their prosecutors easier.

Even more instructive is that the collapse of the issue of anticipatory declaration as another sad commentary about the competence and diligence of the prosecutor, Mr. Rotimi Jacobs, SAN.

At the beginning of the trial, Jacob dramatised the issue of anticipatory declaration and was believed to have used it to influence public opinion against the defendant. If the prosecutor had carefully studied the asset declaration forms submitted by Saraki and efficiently reviewed the reports of the investigation, he would have noticed all the gaping holes that are now proving fatal to the case.

Perhaps, as its joker, the EFCC is said to be relying again on a statement made by the Defendants between 2011 and 2012, which unfortunately has nothing to do with asset declaration, it would not be surprising that the next hearing would be defined by more twists and turns even as the trial inches to its theatrical denouement..