29.03.2016
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Why the Inelegant Drafting of Charges against Saraki May Scuttle Trial at the CCT Taking a critical look at the charges against the Senate President in his ongoing trial before the Code of Conduct Tribunal, Jude Igbanoi observes that the proceedings may end in a mistrial due to the inelegant drafting of the charges.
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aking a critical look at the charges against the Senate President in his ongoing trial before the Code of Conduct Tribunal, Jude Igbanoi observes that the proceedings may end in a mistrial due to the inelegant drafting of the charges. The ongoing trial of the Senate President Bukola Saraki before the Code of Conduct Tribunal stands a chance of going down in Nigeria’s political history as one of the most celebrated and perhaps most legally contentious trials. It no doubt also stands a good chance of enriching the nation’s jurisprudence. Not much was expected from the prosecution and defence when the case was instituted against Saraki, but it has developed several twists and turns to the point of almost now assuming a life of its own. The case has taken a full voyage to the Apex Court and back, with certitude that it would make that excursion to the hallowed chambers of the Supreme Court once more. On September 11, 2015, the Code of Conduct Bureau brought a 13-count charge of corruption against the President of the Nigerian Senate, Dr. Bukola Saraki. He was accused of offences ranging from anticipatory declaration of assets to making false declaration of assets in forms he filed before the Code of Conduct Bureau while he was Governor of Kwara State. The initial public perception was that the Buhari administration’s anti-corruption crusade was gathering momentum, but after a few appearances before the Tribunal, the hype gradually abated and some began to read political undertones into the matter. It was argued that the Tribunal was not a criminal court and thus lacked the power to issue a bench warrant or apply the Administration of Criminal Justice Act 2015 in its proceedings. Saraki contended that the charges preferred against him were incompetent on the basis that they were filed in the absence of the Attorney-General of the Federation in office. However, Saraki’s legal team led by former NBA President, Mr. J.B. Daudu SAN based their arguments on the issues of jurisdiction and whether the Senate President can be tried before the CCT. The Supreme Court ruled in favour of the prosecution, Saraki is now back at the CCT to defend the substantive suit. There have been legal arguments on a number of issues in the Saraki trial, including the argument that the issue of jurisdiction did not need to go all the way to the Supreme Court in the first place. Another argument is whether Saraki’s decision to have a change of counsel was well thought out. One’s view is that the main issue in the Saraki trial is the duplicity and seemingly interminable juggling and amendments of charges against the Senate President, giving verve to the insinuation that the trial could be politically motivated. A cursory examination of the charges against Saraki would necessarily elicit curiosity as to how the prosecution drafted 13 charges against the Senate President, most of which are basically on one issue and repetitive. Counts 1 – 8 for instance are based on the same issue of acquisition and ownership of properties by Carliste Properties Ltd. The heavy weather being made by the prosecution regarding the properties at No. 17B, Mcdonald Street, Plot 2A, Glover Road, Ikoyi, 37A, Glover Road, Ikoyi, 1, Tagus Street, Maitama, Abuja, 3, Tagus Street, Maitama Abuja, counts, 5-8, essentially referring to the same property at Maitama, Abuja. This is where the prosecution had the misfortune of not doing a thorough legal drafting of the charges. Their main argument is that Saraki contravened the provisions of Part 1, Fifth Schedule of the Constitution of the Federal Republic of Nigeria (as amended), and punishable under Section 23(2) of the Code of Conduct and Tribunal Act. Now, if the prosecution is relying strictly and solely on these provisions of the Constitution and the Code of Conduct Tribunal Act, then it is glaring that it did not avert its mind to Saraki’s defence that those properties were acquired and are owned by Carliste Properties Ltd. Perhaps in a hurry to indict, they also neglected to take cognisance of the fact that Saraki had declared in his Assets Declaration Forms that he holds substantial interest in a number of companies duly and legally registered under the Companies and Allied Matters Act. At APPENDIX 6 of the form, Saraki Declared under - Stocks/Shares in Nigeria and outside Nigeria that he holds substantial interests in named companies including, Skyview Properties Ltd, Carliste Properties and Investment
own and characteristics of perpetual succession in the event of the death or retirements of the owners or the directors that were appointed through the memorandum and articles of association. Upon the incorporation of a company, it acquires capacity of an artificial person as such it can own property, become a party to a contract, act in a tortuous manner and become tortuously liable, commit a crime, can sue and be sued, has a nationality and therefore becomes domiciled in nature and even has rights that could be attributed to a natural person though artificial in character. A company acquires the characteristics of a distinct legal person upon incorporation. A corporate veil could be lifted whenever the court wants to find out who is behind the fraudulent and improper conduct of a company. Apart from the foregoing, this article intends to examine in a detailed manner the legal concept of piercing or lifting the veil of incorporation and what warrants it.
Senate President Bukola Saraki
Ltd, Bas Trading and Manufacturing Ltd, Quality Packing Ltd, Better Foods Ltd, Limkers Ltd, Orion Agro Ltd, PPI Ltd, Bastone Ltd. The argument in favour of the defence is that the properties named in the charge sheet by the prosecution actually belong to Carliste Properties Ltd in which Saraki owns and holds shares. The logical question to ask under the circumstances is whether, if owning properties is a crime, shouldn’t Carliste Properties Ltd and not Saraki be prosecuted? CAMA at Section 38. (1) provides thus ‘Except to the extent that the company's memorandum or any enactment otherwise provides, every company shall, for the furtherance of its authorised business or objects, have all the powers of a natural person of full capacity.’ CAMA also provides that any company duly registered in Nigeria can own moveable and immoveable properties in its name anywhere in Nigeria ad can dispose off such properties legally. One’s view therefore is that if the properties in question are those of Carliste and any doubts were raised as to their true ownership, one of the several options open to the prosecution would be Sections 310-313 CAMA as they relate to the provisions for the investigation of companies and their affairs by inspectors appointed by the Corporate Affairs Commission (CAC) and the consequential powers of the CAC and the Attorney General of the Federation to Act on the reports of investigation contained in Section 314-329 CAMA. Even then, they can only come under and application through a court that has proper jurisdiction as provided at Section 407. (1), the Federal High Court within whose area of jurisdiction the registered office or head office of the company is situated. The Supreme Court has held in a plethora of decided case the sanctity of the juristic personality of a registered company. In PASTOR AKIN OLATUNJI v AKINGBASOTE & ORS (2015) LPELR-24275 (CA) it was held that ‘An incorporated company is a creature of law clothed with an independent legal personality from the moment of incorporation, distinct and separate from those who labored to give birth to it. It is capable of acquiring, holding and alienating property, both movable and immovable. If a company is wound up all the assets of the company must first of all be identified and settled. Subsequently, the Court can then order the sharing of the remaining assets (if any) among the parties entitled thereto. Also See, MARINA NOMINEES LTD v FEDERAL BOARD OF INLAND REVENUE (1986) 2 NWLR (Pt 20) 48 WILT & BUSCH LTD v GOODWILL & TRUST INV. LTD (2004) 8 NWLR (Pt 874) 179 and OKAFOR v IGWILO (1997) 1 NWLR (Pt.527) 36 at 39." Per ABIRIYI, J.C.A. (Pp. 19-20, paras. E-A). Even, if doubt was entertained over the ownership of the Carliste Properties Ltd, could the Tribunal not have availed itself of the provisions of the principle of Lifting the Veil of Incorporation? Lifting the Veil In the locus classicus of SALOMON v SALOMON & CO LTD (1897) AC 22 (HL), it has since been established that a corporation is a different entity from the owners, shareholders or directors. A corporation has a life of its
Separate Legal Entity One of the characteristic features of a corporation is the fact that it is a separate entity from the owners under the law. A registered company’s legal rights and obligations are wholly separate from its owners, own entitlements and duties. Property acquired by the company belongs to it and not to its members. Exceptions and circumstances to this rule is the Liability for Fraud and Doing Justice to Victims. This was held in ALADE v ALICE (NIG) LTD, 71 Galadima JSC stated that one of the occasions when the veil of incorporation of a company could be lifted by the court is when the company is liable for fraud. The consequences of recognising the separate personality of a company is to draw a veil of incorporation over the company. One is generally therefore not entitled to go behind or lift this veil. Circumstances in Which a Company’s Veil can be Lifted Where the Company is incorporated to Perpetrate Fraud - JONES v LIPMAN, (1962 1 All E. R. 442), GILFORD MOTORS CO. LTD v HORNE, (1933 Ch. 935). Where the Company carried on business for more than six month after Membership reduction. Where the number of directors fall below two - Section 246 (3) CAMA. Where a Subsidiary Company is being used for Illegal or Improper Purpose - Section 338 of CAMA. Where the Business of a Company has been Operated Recklessly - Section 506 of the Act. Where a Company was formed for Illegal purpose - MERHANDISE TRANSPORT LTD. v BRITISH TRANSPORT COMMISSION, (1962) 2QB 173. Where a Company Shares are held upon Trusts - LITTLEWOODS STORES v I.R.C, ((1969) 1 WLR 124). Where a Company is Formed to Evade Tax - MARINA NOMINES v BOARD OF INLAND REVENUE, ((1986) 2 NWLR 48). Where it is in the Public Interest to lift the Veil - DAILMER CO. LTD v CONTINENTAL TYRE & RUBBER CO. (Great Britain) Ltd, ((1916) 2A. C. 307). There are a few other circumstances where the veil of a company can be lifted, but neither the Tribunal nor the prosecution averted their minds to these, giving the Saraki defence team a leeway to move for acquittal. It is safe to conclude therefore that Saraki not being the real owner of those properties named in the charge is being wrongly tried, or is being tried under the wrong charges. Conclusion A Charge is Bad for Duplicity In OKEKE vs. POLICE, the court held that a charge is bad for duplicity except for Statutory Precedents/Forms, Offences of General Deficiency of Money; Not Goods, Identical offences committed in a single transaction (See COP v OYEWUSI) , ) and Overt Acts of Treason and Treasonable Felony (OMISADE v R.) charges 2-8 in the Saraki case were obviously duplicated. Finally, the Supreme Court held in 2013 in AKINOLA OLATUNBOSUN v THE STATE that a charge which is bad for duplicity should lead to an acquittal citing its earlier decisions In ALHAJI MUJAHID DOKUBO-ASARI v FEDERAL REPUBLIC OF NIGERIA (2007) 56 SC 150; and AMINU MOHAMMED v STATE (2007) 7 NWLR (part 1032) 152.’ It is based on this argument that the trial of the Senate President, Dr. Bukola Saraki may end in an acquittal.