QUOTE

On 15 February 2008, records show that Kalejaiye called Justice Ekanem four times: at 17:51p.m, 17.20 p.m, 17.20:59 p.m, and 10.24 a.m. The longest of those calls lasted 2 minutes and 53 seconds and that was the call made at 10.24 a.m. On the D-day, 18 February, just before the ruling, Kalejaiye called Ekanem twice at 12.36 p.m. and 12.47:20 p.m. The first call lasted 2 minutes and 42 seconds. The tribunal after all these, naturally ruled against the petitioner.

On 17 March, the same day the tribunal ruled against a stay of proceedings pending appeal on its ruling against Adrian Forty, the forensic expert, at 10.51:32 a.m, Kalejaiye sent Ekanem a text message. Three minutes later, Ekanem replied the text. Again, the ruling went against the petitioner. Before that day, Kalejaiye had called Naron on 13 March at 12.54 p.m.

UNQUOTE

My People:


A very fine mess this is, if there was ever one....but technological vigilance may yet save our Republic !



NM

Print version A Mega Scandal July 07, 2008 12:00, 1,562 views The telephone call records of judges at the First Osun State Elections Petition Tribunal, and a lawyer representing one of the contending parties, point to a plot to subvert justice By Babajide Kolade-Otitoju 'You can default in every arm of government, but you dare not default in the judiciary. That's where God himself sits on the throne. You are, therefore, representing Amighty God Himself, as you sit on that throne.' These were the words of Justice Anthony Aniagolu, one of the most respected retired justices of the Supreme Court, during an interview last year in Enugu. The old jurist affirmed in the interview, published in the 12 November 2007 edition of TheNEWS, that no effort must be spared to rescue the judiciary from corruption, arguing that of all the arms of government, the one nearest to God is the judiciary. "Justice represents the Almighty God himself. It touches the heart of God and once you are corrupt on the bench, you no more deserve to sit on that bench," he emphasised. Aniagolu clearly sees judges as representatives of God on earth and will readily cite the Bible to support his assertion.

Even if some will disagree that judges are God's representatives on earth, the primacy of justice in our world and the fact that fairness is the conveyor belt of justice are not likely to be disputed. Indeed, when a man steps within the four walls of a court, he expects to be fairly treated. If he lacks the good fortune of facing a fair judge, he knows he is doomed. Yet, without a fair heart and disposition, no judge can truly dispense justice.

Justices at the Osun State First Election Petitions Tribunal seem to be turning a deaf ear to all the preachment by Aniagolu as they manifest signs that they have been compromised by agents and lawyer of Governor Olagunsoye Oyinlola, Mr. Kunle Kalejaiye, a senior advocate. As far as evidence can go, the judges have been cosying up to the lawyer, speaking regularly with him on phone and, in fact, plotting with him to ensure victory for Oyinlola at the expense of the petitioner, Engr. Rauf Aregbesola, governorship candidate of the Action Congress, in the 18 April, 2007 election. Eminent lawyers TheNEWS spoke with affirmed that it is clearly stated in the ethics of the legal profession and the Legal Practitioners Act that no judge shall hold secret talks with a counsel. According to an Abuja-based lawyer, Chief Godwin Obla, "if a counsel holds a talk outside the court without giving the other parties the opportunity to participate in the discussion, the judge is guilty of prejudicing court proceedings and it is very wrong and against natural justice, as the judgment may be skewed in favour of the party he had been discussing in secret with. It is against this background that judges are taught not to descend into the arena of conflict."Obla cited two cases decided by the Supreme Court in 1988: Okoduwa vs the State and Uso vs the State. In the two judgments, the apex court held that it is wrong and unlawful for a judge to descend into an arena of conflict. The Supreme Court also warned judges not to be loquacious, so that they do not prejudice proceedings.

According to Rule 34, Rule of Professional Conduct for Legal Practitioners (2007), "a lawyer should not do anything or conduct himself in such a way as to give the impression or allow the impression to be created that his acts or conduct are calculated to gain or have the appearance of gaining special personal consideration or favour from a judge."

Before this particular rule was amended, the words were no less equivocal about the need for lawyers to avoid a relationship with judges that could only lead to judges being compromised. "A lawyer should never show marked attention or unusual hospitality to a judge, uncalled for by the personal relations of the parties. He should avoid anything calculated to gain or having the appearance of gaining special personal considerations or favour from a judge," Rule 34 of the Professional Conduct of Legal Practitioners affirmed prior to its amendment.

The rule, as lawyers and retired jurists TheNEWS discussed with last week pointed out, emphasises the need for lawyers to see themselves as ministers in the temple of justice. This places on them an obligation to ensure that in their conduct, both in and outside the court, they do not compromise the integrity and independence of the judicial process.

Section 36 of the 1999 Constitution also guarantees the right to fair hearing by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality. TheNEWS' checks show that a basis of this provision is the rule against bias, more appropriately put, the likelihood of bias. A judge is admonished to disqualify himself if there is financial, even personal or filial relationship with a party to a case being tried by him. This, it is reasoned, will ensure that justice is not only done, but seen to have been done.

Where there are regular telephone conversations and exchanges of text messages (SMS) between a judge handling a case and a lawyer for one of the parties, lawyers argue that it can only lead to a conclusion that there is personal affinity bordering on some form of conspiracy to pervert the course of justice, thereby contravening provisions of Section 36 of the Constitution.

"This is why as a matter of judicial tradition judges are usually insulated against overt and public interaction. The idea is to protect them against situations that can compromise their independence, impartiality and integrity," a lawyer told this magazine last week.

Another legal practitioner pointed to Paragraph 1 of the Code of Conduct for Public Officers in the 5th Schedule of the 1999 Constitution, which provides that a public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities. He argued that the judge of a tribunal is a public officer and that perversion of the course of justice amounts to professional misconduct.

But how did the judges of the Osun State First Election Petitions Tribunal, namely Thomas Naron, Sa'adu Mohammed, Joy Akpughunum, A.T. Badamasi and J.E. Ekanem slip into the cesspool of scandal by their very regular telephone calls to Kalejaiye, the lead counsel to Governor Oyinlola?

TheNEWS investigations at MTN Nigeria showed that Justice Thomas Damar Naron was actually the first to call Kalejaiye. Checks conducted by this magazine covering the period between 1 October 2007 and 21 May 2008 showed that the Plateau-born Naron opened his "telephone account" with Kalejaiye on 1 December 2007. On that day, the judge, who is the Chairman of the tribunal, sent two text messages to Kalejaiye.

The first text message came in at 1.37 p.m, while the second came in at 8.46 p.m. The judge reached Kalejaiye using his (Naron's) line 08037035105, registered with MTN Nigeria. For his first text message to Kalejaiye, Naron did not get a reply, but the unyielding judge got the instant reply he badly needed after he sent Kalejaiye another SMS at 8.46 p.m. The lawyer's reply, according to available evidence, came in at exactly 8.47 pm on 1 December 2007.

The impatient Naron was keen to establish a strong rapport with the lawyer handling a governor's brief. So, on 2 December, 2007, the judge caused Kalejaiye to stagger out of bed when he sent him a text message at 5.31 a.m. To this, the jurist got a reply. Yet, the judge sent another text message at 8.57 p.m. to Kalejaiye and was charged N14 having exceeded 160 words. With both men having established a strong link, via SMS, they soon began communicating regularly via voice calls. Naron's first voice call came on 2 December at 6.54 a.m, shortly after the judge had sent a text message at 5.31 a.m. to Kalejaiye's line: 08034062075.

Between 1 December 2007 and 14 April, 2008 Naron called Kalejaiye 46 times, using his (Naron's) MTN line: 08037035105. On his MTN line 08034062075, Kalejaiye sent the judge several text messages. On 14 April, the beginning of a very important week in the tussle at the tribunal, Kalejaiye sent two SMS to Naron. The first came in at 6.35 a.m, meaning Naron did not have the monopoly of making telephone calls so early in the morning. The text message was registered as two pages and it was to Naron's line: 08037035105 registered with the MTN as the judge's line. The next day, Kalejaiye also sent the judge a text message at 1.18 p.m.

Later on, Naron acquired a new line. And immediately, Kalejaiye and the judge demonstrated a preference for communicating on the new line: 08073160534. Between 17 April and 30 May, 2008, Kalejaiye sent 53 text messages to the judge on the new line. Between both men, there was certainly evidence of increased activity on the new line.

Why the judge opted for a new line is unknown. Between 1 December 2007 and 14 May, 2008 Naron sent 28 text messages to Kalejaiye and the judge was billed N7 per SMS by MTN. When the two gentlemen chose to speak, their conversation was usually short and direct to the point. For example, on 2 December 2008 at 6.54 a.m, Naron called Kalejaiye and they spoke for just 25 seconds. However, on 7 April, 2008 when both men spoke at 1.53 p.m, they did for two minutes.

Many of these calls were made very early in the morning, sometimes before 5.30, and in the afternoon. Text mesages were exchanged anytime and were usually couched to address specific demands. TheNEWS has a record of Kalejaiye's calls to his client, Governor Olagunsoye Oyinlola and a pattern, whereby Oyinlola and Kalejaiye would speak on phone and then minutes later, the lawyer was on the line to Naron was established. An example will suffice on the governor's line: 08034040588. On 19 March 2008, Kalejaiye called the governor at exactly 10:55am. Same day at 11:37am, Justice Naron called Kalejaiye. However, there is no record showing Oyinlola directly called the judge at any time, except if the governor used a different line.

TheNEWS investigations showed that the opening of phone conversations between Naron and Kalejaiye marked a turning point in the conduct of the Tribunal to parties in the governorship tussle. Analysts posit that before December 2007 when Naron and Kalejaiye began talking, the Tribunal was patently even-handed, even impressing the petitioners by its decision to allow them to use scientific means to prove the alleged rigging of the governorship election in the state. Even when the Independent National Electoral Commission, INEC, refused to allow forensic examination of the ballots by an order of the tribunal on 14 August 2007, forensic experts were allowed to examine and scan the electoral materials. However, by 1 December, when Naron and Kalejaiye began talking on phone, the tables turned against Aregbesola's legal team. And the greatest evidence of this came on 18 February 2008 when the tribunal curiously disallowed the presentation of the results of the forensic examination it had ordered in the first place, a ruling described by a lawyer as "benefiting the offender and punishing the victim".

If the petitioner (Aregbesola) argued that he started getting the short end of the stick after Oyinlola's lawyer and the judges began communicating, evidence shows that he would not be far from the truth. There is incontrovertible evidence too that from that moment, before key rulings were made, the judges made a duty of communicating with Kalejaiye. The lawyer usually sought advice on what moves to make. On the eve of key rulings, it was often Kalejaiye putting a call through to the judges. Those calls were often made late in the night, in the morning before sittings and during recess by the Tribunal preparatory to its ruling.

In the days leading to the tribunal's ruling disallowing the presentation of the results of the forensic test, on the ground that the evidence was not in tandem with the clause that required such evidence only in extreme circumstances, Kalejaiye and the tribunal judges stepped up their conversations on phone.

On 15 February 2008, records show that Kalejaiye called Justice Ekanem four times: at 17:51p.m, 17.20 p.m, 17.20:59 p.m, and 10.24 a.m. The longest of those calls lasted 2 minutes and 53 seconds and that was the call made at 10.24 a.m. On the D-day, 18 February, just before the ruling, Kalejaiye called Ekanem twice at 12.36 p.m. and 12.47:20 p.m. The first call lasted 2 minutes and 42 seconds. The tribunal after all these, naturally ruled against the petitioner.

On 17 March, the same day the tribunal ruled against a stay of proceedings pending appeal on its ruling against Adrian Forty, the forensic expert, at 10.51:32 a.m, Kalejaiye sent Ekanem a text message. Three minutes later, Ekanem replied the text. Again, the ruling went against the petitioner. Before that day, Kalejaiye had called Naron on 13 March at 12.54 p.m.

On 7 April, 2008 the tribunal made yet another key ruling on the application for adjournment, pending determination of an application for stay at the Court of Appeal. That day, call records obtained by this magazine showed that Kalejaiye called Ekanem six times between noon and 7 p.m. The first call came in at 12.22 p.m, while the last came in at 7.07 p.m. That was not all, on Thursday 17 April 2008, the Tribunal ruled on mode of tendering documents from the local councils. The day before, Naron sent Kalejaiye text messages twice at 6.12 a.m. But there is no evidence that the messages were delivered, as Naron was not billed by the service provider.

Perhaps it was for this reason that Ekanem opted now to go for voice calls, talking directly to Kalejaiye. That day, a very busy one for the three men, Kalejaiye sent two text messages and made three voice calls to Ekanem. Realising that the stakes were becoming very high, Kalejaiye also sent two early morning text messages to Naron. The first was sent at 6.12 a.m.

On 15 May 2008, the tribunal rejected police report on the election in Osun State, declaring that it was marked secret. However, before that ruling, Kalejaiye had sent 11 text messages to Justice Naron.

The most scandalous discovery of all is that some of the text messages exchanged among the trio of Naron, Ekanem and Kalejaiye came in during the tribunal's sittings, as the men desperately found a way to make crucial communication on the floor of the tribunal. With the backing of the judges, Kalejaiye knew exactly when to object to any issue thrown up by the rival lawyer and there was no prize for guessing what the action of the tribunal members would be. The lawyer was literally chaperoned during the sittings by the tribunal members, led by Naron.

There was probably some form of competition between Naron and Ekanem, a judge from Akwa Ibom State, for Kalejaiye's heart. Both judges regularly punctuated Kalejaiye's sleep with voice calls and SMS and the lawyer never failed to reply the men who hold the key to his client's victory at the tribunal.

Investigations showed that the telephone contact between Kalejaiye and Ekanem was established on 8 January 2008, when Ekanem sent his first text message to Kalejaiye at 7.15 a.m. He followed this up with another one at 10.32 a.m on his line 08034105705. By 27 June, 2008 the end of the period covered by TheNEWS' checks at MTN Nigeria, Ekanem had either called or sent text messages to Kalejaiye 213 times! He regularly called Kalejaiye on the lawyer's line: 08034062075. This is the lawyer's most preferred line, one of the two phone numbers boldly printed on his call card and through which most friends and professional colleagues communicate with him.

Investigations showed that so obsessed with pestering the Osun Tribunal judges was Kalejaiye that he ensured at least a credit balance of between N80,000 and N100,000 on his phone. That way he can send text messages as well as call the judges any time he pleases. For example, on 22 May 2008, Kalejaiye had a balance of N97,264 on his phone. There are also hints that Naron may have obtained favour from Kalejaiye. For example on 18 April 2008, the judge sent a text message to Kalejaiye, saying: "OK, I'm grateful." The message came in at 5:12 p.m. There were many other messages of similar language.

An attempt to speak with Naron was futile. On the phone, the judge said: "By virtue of my position as a public servant, I cannot talk to you. I can't. The ethics of my profession forbid such. I wish you luck." But how did the dalliance between Kalejaiye, who defended Senator Iyiola Omisore when he was charged with the murder of former Attorney-General and Minister of Justice, Chief Bola Ige, begin? Nobody in Oshogbo last week could say with certainty. But those familiar with goings-on at the tribunal credit Oyinlola's aides with working hard at penetrating the rearguards of the experienced judges, who were drawn from Kano, Rivers, Borno, Akwa Ibom and Plateau state ministries of justice.

"When the tribunal ruled that Aregbesola's lawyer could use scientific means to prove rigging in Osun State, they were taken aback. They knew they had to work real hard at winning the judges over, so they stuck at it," an Oshogbo-based lawyer said last week.

A very dependable source told TheNEWS that it became easier to penetrate the judges after the former tribunal interpreter was replaced with a certain Ms Sade Alaba Adewunmi.

Sade, who got the job last September, regularly makes sorties to Royal Hotel, Ilobu, where the tribunal members are quartered. Justice Naron's call record is generously sprinkled with calls from phone number: 08066572719, Sade's line.

Indeed, between 16 January 2008 and 15 May 2008, Naron called Sade 33 times and sent her text message 13 times! Evidence also abounds that even Kalejaiye regularly contacts Sade, via voice calls, SMS or MMS. Even now, tongues are still wagging about the mysterious death of the former assistant secretary of the tribunal, Alhaji Suleiman Omolabi, an Ilorin indigene, on 4 October 2007. The deceased was noted for his incorruptible nature. His death still rankles many in the Osun State capital, especially AC supporters, who suspect that he was poisoned because he refused to be compromised. As yet, there is no cast-iron evidence that Omolabi was a victim of poisoning, even though that suspicion is strong in the Osun State capital.

The AC had long suspected that the Osun Tribunal had been compromised. The evidence of close affinity between the judges and Kalejaiye, constant communication and marked attention the judges are giving the lawyer, will make the party now feel vindicated. In a petition dated 29 February 2008 addressed to the president of the Court of Appeal, the party had called for the disbandment of the tribunal which it described as "having no redeeming features".

It also described the tribunal as "completely compromised as its conduct and rulings have shown". In the petition signed by the party's National Chairman, Chief Bisi Akande, the party accused the tribunal of deliberate and premeditated decisions, showing obvious bias in favour of the candidates of the Peoples Democratic Party. It noted that as far as the tribunal members are concerned, the admissibility of public documents depended on whether they would benefit PDP candidates or not.

The party particularly complained about the conduct of the only female member of the panel, Justice Joy Akpughunum, whom it accused of openly gesticulating either by frowning her face or smiling animatedly "depending on whether the point in issue appears favourable to the respondents (PDP)". Akpughunum was also accused of exerting undue influence on the chairman, dictating to him what to write or what not to write. Last November, when the INEC counsel was cross-examining one of the petitioners' witnesses and asked a question which exposed INEC and the respondents, Akpughunum was said to have dropped her pen and described it as a stupid question.

To halt the perceived injustice being meted by the tribunal, the petitioners asked for the reconstitution of a new tribunal consisting of judges of integrity and competence "who take more seriously the judicial oath they have solemnly taken to dispense justice without fear or favour, affection or ill-will". The petition was sent to the Chief Justice of the Federation, National Judicial Council and the Nigerian Bar Association. So far, no action has been taken on the petition.

The Osun State Election Petitions Tribunal walked into a swirl of controversy when on 18 February 2008, it refused to accept the result of forensic examination with which Aregbesola had sought to prove that the gubernatorial election in the state was characterised by vote rigging and other electoral malpractices and that he won a majority of the lawful votes. He brought in a foreign forensic expert, Adrian Forty, a Briton, to conduct the tests. The forensic report on Osun State showed that ballot papers meant for Ondo State found their way into Osun State. It also revealed that 41 percent of the 224,695 votes analysed (out of a total of 426,669 INEC credited to Oyinlola) were fraudulently obtained. Forensic examination detected that 113,311 of Oyinlola's votes analysed from 10 local government areas were from illegal ballot boxes not supplied by INEC, as listed in Form EC40C/EC25. This implies that they are alien to Osun State as far as the gubernatorial election was concerned.

Again, 88,092 of Oyinlola's votes were from split ballot booklets, meaning they were ballots illegally used outside their allocated booths in the 10 LGAs analysed. Similarly, 117,439 of Oyinlola's votes were detected to be products of ballot stuffing in the 10 LGAs analysed. Analysts believe that had the Naron-led tribunal allowed Adrian Forty to testify after his forensic examination of the ballots, the tribunal would have had no choice but to declare Aregbesola winner of the election.

"We made the point that the only scientifically acceptable method by which we can prove the allegation of rigging made against Oyinlola and INEC is through the use of biometric or forensic technology, but the tribunal held on to technicalities which the Supreme Court had warned should not be the premise for ruling on election petitions," Ajibola Bashiru, Aregbesola's lawyer contended.

According to Adrian Forty, "the magnitude of evidence gathered, in my opinion, conclusively proves that an operation of systematic multiple voting had been conducted on a huge scale across the state of Osun," noting that out of 124,695 ballot papers examined by him, 93,088 were with multiple votes, just as stuffing of ballot papers occurred in 509 polling units. Many Nigerians condemned the ruling of the Osun tribunal, especially when the second election petitions panel in the same state voted to accept the result of the forensic test as they concern the House of Assembly polls. Wole Ayoola, a Lagos-based lawyer said the events taking place in the First Osun Election Petitions Tribunal show that moral midgets still abound in the Nigerian judiciary, despite recent gains made by that arm of government.

But how will the First Osun State Tribunal come out of the present scandal? In an interview with TheNEWS last week, Justice Anthony Aniagolu said by communing with the lawyer representing one side in a case before it, the Naron-led tribunal was risking God's wrath. "It is not done. If you are called a judge, you are representing God. How can you be communing with one side when you are supposed to be an arbiter at the centre. You are insulting God if you are taking side in a case and God will not accept that," he warned. He recalled that as a judge serving in Calabar, he convicted an Igbo man who attempted to compromise him over a case.

Erudite scholar and social critic, Professor Itse Sagay (SAN) described it as something that should not happen. "For a judge to be holding private or secret negotiation with a party on a matter before him without giving the other party the opportunity to partake in the discussion is regarded as a capital offence against fair hearing. Under the 1999 Constitution, such a development will render the entire proceedings a nullity… Whenever this happens it prejudices the proceedings. It breeds corruption and skewed judgment. If a whisper of such discussion becomes public knowledge, even if judgment has been entered, if the aggrieved party goes to the Court of Appeal, the appellate court will nullify the judgment and order a retrial," he explained.

Sagay stressed that even if a lawyer is writing to a court on anything, "you must notify the other party. You can't write on a matter that concerns the court." And he is convinced that the National Judicial Council will do justice to this case and others as it has done in the past. "As the tribunals wind up, we shall hear of judges who have been dismissed because there is evidence that some of them took bribes in some of these tribunals. These judges are so shameless that they strike out every case on technical grounds against one side. NJC is monitoring them," he declared.

When TheNEWS sought Kalejaiye's view on the issue of lawyers unduly influencing judges, he was vehement in condemning the practice, even denying that it happens in the country. He said it is unethical and any lawyer or judge engaged in such practice should be sanctioned. In any case, he said, there was no time he ever did so since he never had cause to.

"If that is your purpose of coming here, I say it again that I have not seen a judge outside courtroom. I do not romance judges that are handling my case. And anybody that has fact that I am romancing a judge should come up with the fact," he asserted.

He blamed the incidence of such accusations on Nigerians being bad losers who would cook up unsubstantiated reasons to explain their loss of cases.

"…In all aspects of life we are very bad losers in Nigeria…We need to be careful in this country not to make allegations based on emotion," he said.

Legal practitioners spoken to said lawyers who behave the way Kalejaiye has behaved with judges of the Osun tribunal may be suspended for some years or have their names permanently struck off the roll of legal practitioners. But, in the meantime, Nigerians can only wait patiently to see how this judicial aberration and pure manifestation of partisanship in the First Osun State Election Petitions Tribunal will be handled.