NEW NIGERIAN

July 29, 2008

Tribunals and controversial judgments

Law, we are told, does not respect anybody or a group of persons. Neither has it respect for the rich nor powerful, a highly or lowly positioned individual. And because it is no respecter of status and riches it is generally referred to as the last hope of a commonman.
This is aptly demonstrated in the legal symbol where a blind woman is seen moving and dispensing justice irrespective of who ever is involved. Whoever that comes her way, be you Mr. President, Senate President, the long arm of the law we have been made to understand by both the legal practitioners and the constitution of the country, will catch up with him or her.

How it happens? A case is charged before the election petitions tribunal as in our democratic practice where an opposition politician profitably a defeated political alleges malpractices contrary to the electoral laws that guide the conduct of the elections. The tribunals which are in two categories state election petitions tribunal tries cases involving elected public officers from local through state to National Assembly and the presidential election tribunal tries perceived electoral malpractices by the elected president.

Worried over a barrage of criticisms that trailed the April 2007 general elections, which brought him on board as the president of the Federal Republic of Nigeria, President Umar Musa Yar’Adua appointed distinguished legal luminaries of some sort as chairmen and members of the state election petition tribunals to receive complaints and petitions collate such and pass judgement accordingly.

In his own case, a presidential election tribunal, headed by Justice James Ogebe, who until his appointment to head the panel was a justice of the Appeal Court, quashed the petitions of the opposition, notably, former Vice President Atiku Abubakar of the Action Congress (AC) and General Muhammadu Buhari of the All Nigeria Peoples Party (ANPP), and declared Yar’adua as the winner of the April 2007 election.

Simultaneously, tribunals at the state level were sitting and passing judgments accordingly. Of late was the landmark judgement in Ondo State, involving Chief Olsegun Agagu, who until last Friday was the governor of that state, said to have been elected in April 2007. Delivering judgement in that case involving the petitioner, Dr. Olusegun Mimiko, gubernatorial candidate of the Labour Party (LP) in April 2007 election, the tribunal chairman, Justice Garba Nabaruma, said Mimiko scored over one quarter of the total votes cast in 13 local governments while the respondent, Agagu scored over one quarter vote cast in nine local governments.

According to Nabaruma, Mimiko has satisfied the constitutional requirements of winning two-thirds of the 18 local governments to be declared the winner. He said Mimiko polled 198,269 votes as against Agagu’s 128,669 votes. The chairman therefore nullified the election of Dr. Olusegun Agagu and ordered that Dr. Mimiko be sworn-in as the governor of Ondo State without delay. Meanwhile, the National Vice Chairman of the Peoples Democratic Party (PDP) in the South-West, Alhaji Tajudeen Oladapo, has said the party would appeal against the judgment, adding that the appeal will be filed within 21 days.

Observers believe that most of the state election petitions tribunals have been fair in their judgments. For instance, in Kogi State, the state election petitions tribunal quashed the election of Alhaji Ibrahim Idris as the governor of the state over non-inclusion of the name of the candidate of the All Nigeria Peoples Party (ANPP), Alhaji Abubakar Audu on the ballot papers. That case was believed to be a clear one because it was contrary to the electoral law as well as the stipulations of the Independent National Electoral Commission (INEC). A re-run election was ordered by the tribunal, and subsequently, Alhaji Ibrahim Idris retained his seat as the governor.

Coming on the heels of the Kogi election tribunal landmark judgment was the Kebbi State election petitions tribunal, which also nullified the election of Alhaji Sa’idu Usman Dakingari over alleged irregularities in his nomination as the PDP gubernatorial candidate until the so called merger between the PDP and ANPP in that state. Dakingari was the gubernatorial candidate of the latter. He was said to have been anointed by Senator Muhammadu Adamu Aliero, the immediate past governor of that state on the platform of the ANPP, but later defected to the PDP. As in Kebbi State, the election of Alhaji Aliyu Magatakarda Wamakko of Sokoto State was quashed by the state elections petition tribunal over irregularities in his nomination. Until he was adopted as the candidate of the PDP, Wamakko, a former deputy governor was ANPP candidate having fallen apart with his former governor, Alhaji Dalhatu Bafarawa. Other states that had the elections of their state governors nullified are Edo where the AC gubernatorial candidate, Mr. Adams Oshiomhole was declared the winner instead of the state governor up to the judgment, Professor Oserhemin Osunbor, Adamawa where the candidate of AC, Alhaji Ibrahim Bapetel had his name omitted from the ballot paper, leading to the nullification of the election of Governor Murtala Nyako. A re-run election was ordered by the tribunal and Nyako had retained his seat as the governor, Enugu where the candidate of AC, Mr. Dubem Onyia challenged the election of Sullivan Chime as the state governor, over electoral irregularities, leaving to the nullification of the election by the tribunal. An appeal was made by the governor, and his election has been upheld.

Though by the legal system, a litigant has the right of appeal if he or she is not satisfied with the judgment of the lower court or as the case is now, the lower tribunal, the rate at which the judges shouldered with the responsibility of enforcing the law are going about it at the tribunals has raised more questions than answers. The worry has been that virtually all the petitions painstakingly investigated, thoroughly examined, and judgment delivered in accordance with the electoral laws are invalidated by the Appeal panels.

For instance, the appeal panel sitting in Kaduna invalidated judgments of the state election petitions tribunal which sat in Kebbi and Sokoto, saying that the evidence adduced by the opposition ANPP and Democratic Peoples Party (DPP) were not substantial enough to disqualify the candidates of the PDP, Dakingari and Wamakko. The duo therefore retrained their seats as governors under controversial circumstances.

However, in places like Ogun and Oyo, the legal battle by the opposition ANPP, AC, and LP terminated at the state elections petitions tribunal level as the tribunals ruled that the opposition could not prove their cases beyond any reasonable doubt.

In Adamawa, Enugu, Bayelsa and others where a re-run elections took place, the ruling PDP retained their seats.

The fear being entertained by some Nigerians particularly the opposition over the retention of power by the party in power before the nullification is what is likely going to happen in Edo, and lately Ondo states.

Going by the judgment of the lower tribunal, Oshiomhole of the opposition AC polled the highest number of votes over and above Osunbor who has been governor of that state for more than a year running. He was therefore declared the winner of that election. But the sitting governor, Osunbor appealed against the judgment. The case is presently before the appeal panel in Benin. Nigerians are waiting to knowing whether it is going to be business as usual.

Before last Friday’s landmark judgment in Ondo State, discerning mind, apart from the opposition LP saw it coming. Ondo of all the states of the federation happened to have recorded the highest number of nullifications. And most of those whose elections were nullified are members of the PDP, including elected public officers from the governor’s own ward or local government. According to reports, Chief Agagu lost to the opposition LP even in his ward, Okitipupa. In view of this development, that Agagau was going to have his election quashed was even a foregone conclusion as events unfolded.

Now that the National Vice Chairman of PDP from the zone, Alhaji Tajudeen Oladapo, had appealed for calm as the PDP was set to appeal against the judgment within 21 days, the opposition LP should not roll out drums yet to jubilate over its victory as past experiences have proved the petitioners wrong at the Appeal Panel.

Perhaps the state elections tribunal’s judgment that drew the ire of the opposition AC and indeed some well meaning Nigerians is the one that sits on Oshogbo, the Osun State capital. It was a petition brought before the tribunal by the AC gubernatorial candidate, Rauf Aregbesola against the PDP Governor Olagunsoye Oyinlola, which the tribunal dismissed that the petitioner had failed to prove his petition that the respondent was not duly elected as the governor of the state as declared by INEC. According to the tribunal presided over by Justice Thomas Naron, Aregbesola had not proved the case of violence and rigging in the 12 local government councils.

However, earlier before the judgment, the tribunal had dismissed the two motions brought by the AC counsel, Mr. Kola Awodein (SAN), praying the tribunal to disqualify itself from delivering the judgment following the publication in a weekly magazine. The News alleged romance between the judges of the tribunal, Justice Naron and Joe Ekanem and Chief Kunle Kalejaiye (SAN), one of the lead counsels to Governor Oyinlola.

Striking out the first motion, Justice Naron pointed out that the allegation of bias leveled against the tribunal was based on the previous ruling against Aregbesola which could not stand as the counsel had filed appeal against the tribunal’s previous rulings.
According to Naron, the publication of The News magazine could not stop the judgment of the tribunal because the tribunal could not base it decision on mere speculation published by the magazine, stating that “there is no provision for the arrest of civil matter in a civil matter, it is an abuse of court process.”

Besides, well meaning citizens of Osun State as well as the opposition had alleged that the chairman of the tribunal, Justice Naron and Chief Kalejaiye, one of the lead counsels to Oyinlola had exchanged text messages over a hundred times in the course of the case. According to reports, Naron had at a time during the sittings said to Kalejaiye, “Thank you, I am grateful,” allegedly for a favour done to him by the governor’s counsel. The mother of all landmark judgments, which had attracted both negative and positive reactions, right from the lower to the appellate tribunals was the one involving the number three citizen of the country, Senate President David Mark.

It would be recalled that following his election for three consecutive times as the senator representing zone of the Idoma speaking area of Benue State, it was claimed that Senator David Mark had not really done well for the Idoma to deserve a third tenure. And so the candidate of the ANPP, Alhaji Usman Abubakar Maishanu (alias Young Alhaji) was brought in as a forece to counter the looming and or dimming reputation of a general turned Senator.

But following the election of David Mark as the Senate president, observers believe that Idoma people might have been divided over their loyalty to either Mark or the young Alhaji. For one, Idoma race in Mark has produced the number three citizen of the country. However, to some Idoma people, number three or not, justice must take its course so that he right winner would emerge. So, despite all entreaties, persuasions and negotiations in high places particularly in the palace of the Ochi’Idoma, His Highness, Elias Ikoyi Obekpa, the ANPP candidate refused to soft-pedal, insisting that he won that election and that he would follow the course of justice to its logical conclusion.
At the Benue State elections petition tribunal, the Senate president’s election was nullified by the tribunal presided by Justice K. Utiri. He had ruled that Usman Abubakar Maishanu of the ANPP won in seven out of the nine local government areas while fresh elections should be conducted in the remaining two councils of Okpokwu and Agatu.
But delivering its judgment, the Court of Appeal sitting in Jos, the Plateau State capital, said section of the Electoral Act 2006 did not confer power on the electoral officer sitting on top of the Electoral Pyramid” to cancel the results of an election, and that the lower tribunal was wrong to assume the officer has such powers. According to the panel presided over by Justice Zainab Bulkachuwa, “if all results of an election have been entered and endorsed by the party agents at the various levels, the returning officer at the top of the electoral pyramid lacks the power to cancel the election.”
Justice Bulkachuwa then declared that the decision of the tribunal which was given on February 28, “is hereby set aside and the return of the applicant (Mark) as senator representing Benue South Senatorial district is hereby upheld.”
Meanwhile, Nigerians including distinguished senators have been congratulating the Senate president over “well deserved victory.”
Granted that he has reached the climax of his legal battle with the Senate president, the young Alhaji in a paid advert in some National Dailies which came out last week however insisted that he won the election in all the nine local government areas that make up the Idoma speaking area.
By way of resigning to fate, the Young Alhaji has said in the advert that, “cry not for me, but for the rule of law, democracy and Nigeria.” This rather philosophical statement by the young Alhaji should not be considered lightly by the nation’s leadership.
Observers believe that if the hallmark of democracy is rule of law, justice and fair play, a lot still needs to be done to ensure that the course of justice is not unduly influenced from any quarters to deny justice. “We are all equal before the law, and so justice should be dispensed without fear or favour,” they said.
Towards enforcing discipline among the judges, it is believed that the Chief Justice of Nigeria (CJN) Justice Idris Kutigi and the Nigeria Judicial Council (NJC) should work in tandem towards ensuring that erring judges are probed and brought to justice. It is only through this collaborative effort that the nation’s legal system can fully operate independently of the rabid craze for power retention by the politicians who did not really win elections.