How judiciary meandered through political cases in 2008

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VANGUARD

How judiciary meandered through political cases in 2008

 

Written by Ise-Oluwa Ige   

Tuesday, 06 January 2009

 

But for the exemplary performances of few courageous judges serving on the nation’s bench, it will not be unfair to say that the judiciary disappointed or so it seemed in the performances of its sacred roles in the last twelve months. This is so given several controversial and conflicting verdicts that emanated from the hallowed temples of justice in several political cases that came before it between the last legal year and now. The conducts of few serving judicial officers who played gods in their handling of sensitive public interest litigations did not help matters.

From the magistracy level to the Supreme Court bench, verdicts suggesting that the judiciary under-performed abound.

Of course, aggrieved parties in some of the cases with controversial verdicts did not fold their arms as they fired petitions to the National Judicial Council (NJC) which has the statutory powers to dismiss erring judicial officers.

Muhammadu Buhari

Regrettably, in spite of several weighty petitions against some serving judges over their alleged questionable handling of some public interest litigations submitted to them, the National Judicial Council (NJC) has not been as pro_active as expected. The happenings in the era of Justice Muhammad Lawal Uwais and Justice Salihu Modibo Belgore are yardsticks to this conclusion.

All through the last 12 months, it is doubtful if the NJC had successfully concluded any investigation on any of the several petitions made against serving judges in the country let alone wielding its big stick to send signals to erring judges.

The implication of this is that many   Nigerians are losing hope in the judiciary.

A quick run down of several political cases that came before different tiers of courts in the country towards the tail_end of President Olusegun Obasanjo’s administration in 2007 but which dragged till 2008 and several others filed as soon as the baton of leadership changed hands on May 29, 2007 may be necessary to perhaps underscore the point being made.

For instance, before  Obasanjo handed over powers in 2007, several political disputes went to court.

Few of such include the one filed by Hon Rotimi Amaechi challenging his substitution by the ruling Peoples Democratic Party (PDP); the one filed by Chief John Oluwole Fashogbon against Chief Albert Abiodun Adeogun; another by Chief Ime Akpan against Senator Effiong Bob, all pre_election matters.

Others are the election petitions filed by Maj._Gen Muhammadu Buhari, Alhaji Atiku Abubakar, Olapade Agoro and four others challenging the electoral victory of President Umaru Musa Yar’Adua, several petitions filed by candidates in various states of the Federation including the one filed by Engineer Rauf Aregbesola of Osun State against Governor Olagunsoye Oyinlola, all post election cases.

There were also several criminal cases maintained by EFCC against not less than nine past state governors including James Ibori of Delta state, Orji Uzor Kalu of Abia state, among others.

Atiku Abubakar

For the pre-election cases, Vanguard authouritatively reports that most of them are yet to be determined by the regular courts almost two years after the election which they sought court’s intervention to participate in.              

Some of such cases are presently even hanging in that they have not been heard at all and it is even quite impossible to say whether there would be judgments on them before the expiration of the on_going four-year term of the incumbent whom elections are being challenged.

A good example of the pre-election case that readily comes to mind is the case of Chief John Oluwole   which he filed about 18 months ago before a Federal high court in Abuja to enable him participate in the April 2007 general election held nationwide.

Because his case was not given expeditious hearing as desired by the nature of his case, he cannot move forward.

Besides, nothing has been done by the President of the Court of Appeal Justice Abdullahi to intervene by reversing the long adjournment notwithstanding the fact that Hon Fashogbon wrote to him urging him to intervene.

Worse still, even the pre_election cases that were decided by the high courts and the Court of Appeal provoked so much controversy that the apex court had to intervene.

A good example that came to mind here is the one filed by Hon Rotimi Amaechi challenging the decision by the ruling Peoples Democratic Party (PDP) to substitute his name with Sir Celestine Omehia for the Rivers state gubernatorial election.

The fact of that case was that Hon Amaechi contested the primary election conducted by the PDP for the Rivers’ state gubernatorial seat and won with his name forwarded to INEC as the ruling party’s gubernatorial flag-bearer.

But before the election was held, the party, for no known reason, wrote INEC a letter substituting Amaechi’s name with Sir Celestine Omehia.

The former Rivers Speaker was aggrieved by the decision and challenged it in court.

The case traveled from the high court to the Supreme Court twice without the live issues raised therein addressed or pronounced upon with a finality.

Specifically, the Abuja trial high court entered judgment against Amaechi but the Court of Appeal where the verdict of the trial court is being contested refused to hear his appeal on the grounds that Amaechi  had been expelled from PDP and had been robbed of the locus to sustain the case.

Amaechi disagreed with the Court of Appeal and went before the Supreme Court which held that the intermediate court was wrong to have declined jurisdiction.

The Supreme Court, in a unanimous judgment, sent the case_file back to the Court of Appeal and ordered it to give the matter an expedited hearing.

But when the appeal came up for hearing before the appeal court, Justice Rabiu Danlami Muhammad who presided over the panel of five justices that sat on the case refused to hear notwithstanding the express instruction by the Supreme Court and referred the case back to the apex court.

The Chief Justice of Nigeria (CJN), Justice Idris  Kutigi could not believe what happened.

In fact, he first gave an administrative order that the case_file must be returned to the Court of Appeal panel and that the matter must be given an expedited hearing.

But when the Court of Appeal refused to heed the CJN’s instruction and when the matter eventually came up before his panel, he chided the five justices of the Court of Appeal for refusing to consider the merits in the appeal.

He said their refusal to hear the case not only amounted to insubordination but was also alien to the tradition of the bench. He had to formally order the lower court to take the appeal.

When the Court of Appeal eventually took the case of Amaechi, it was not surprising that the panel hid its face from the facts of the matter and entered judgment against him. Of course, at that time, supporters of Amaechi were already losing hopes.

Amaechi had to come to the Supreme Court where a full panel of the Supreme Court endorsed him as the lawful candidate of PDP in the April 21, 2007 and ordered  Sir Celestine Omehia, to vacate his seat with immediate effect.

The apex court premised the order on its finding to the effect that Omehia was not the candidate of the ruling Peoples Democratic Party (PDP) which won the gubernatorial election held in the state on April 14, 2007.

The court specifically said that he held the office in error and illegally.

The court however ordered the immediate swearing_in  Amaechi in his (Omehia) place even though he never participated in the election.

The apex court said that since it had found that Amaechi was the lawful candidate of the ruling party (PDP) that won the election in the state, it said that he was the winner of the gubernatorial poll, in law.

The verdict which was unanimous touched on the correct interpretation and intendment of section 34 (2) of the Electoral Act 2006.

Although the judgment of the Supreme Court corrected the injustice done to Amaechi by the PDP, the Abuja Federal high court and the Court of Appeal, Abuja division, but it was radical and controversial.

For the post_election cases that came before the court, only few had been finally decided.

Another major post election case was that of Comrade Adams Oshinomole against Professor Osunbor of Edo state. Oshinomole who was eventually declared winner in November by the Court of Appeal in Benin had to wait for eighteen months before he claimed his mandate. It was a landmark judgement that earned the judiciary a lot of commendations across the country.

And of the few decided, majority of Nigerians felt that justice was not dispensed by both the trial and the final courts on the matters. A good example is the chain of petitions filed against the electoral victory of President Umaru Musa Yar’Adua.

The fact of that case was that the Chairman of the Independent National Electoral Commission (INEC), Prof Maurice Iwu had declared Yar’Adua the winner of the April 21, 2007 presidential election with 24.6 million votes.

According to the results announced by INEC, he beat 24 other contenders, landslide. His closest rival, the former Head of State Major General, Muhammadu Buhari, was said to have polled 6.6 million while the presidential candidate for the opposition Action Congress (AC), Alhaji Atiku Abubakar, with the third highest vote, was said to have polled 2.6million.

Iwu said that Yar’Adua won the poll by about 70 per cent of the votes cast. He said he couldn’t have declared anyone else in view of the clear provisions of section 133 of the 1999 constitution.

But moments after the declaration, thousands of opposition youths started street fires in the northern city of Kano but the protest was quelled by police and reaction elsewhere was muted.

The European Union invited by INEC to monitor the election, dismissed the poll as a charade and lacking in legitimacy. The opposition spokesman, All Nigeria Peoples Party (ANPP), Chief Tom Ikimi, also dismissed the election as a sham.

That was the situation when seven aggrieved presidential candidates in the controversial poll together with their political parties filed their petitions at the registry of the Court of Appeal sitting as the Presidential Election Petition Tribunal in Abuja to challenge the poll results.

Among them were Dr Olapade Agoro of the Progressive Action Congress (PAC); Buhari, his political party, the All Nigeria Peoples Party (ANPP) and former Vice President Alhaji Atiku Abubakar of the Action Congress (AC).

Others who went to court to challenge the election results were the presidential candidate of the All Progressive Grand Alliance Party (APGA), Chief Odumegwu Ojukwu; the presidential candidate of the Peoples Mandate Party (PMP), Dr Arthur Agwuncha Okonkwo; the presidential candidate of African Liberation Party (ALP), Chief Emmanuel Osita Okereke and the presidential candidate of Hope Democratic Party (HDP), Ambrose Owuru.

All of them sought to invalidate Yar’Adua’s election for sundry reasons including that the ballot papers used for the election were neither serialized nor bound in booklet contrary to the mandatory provisions of section 45 (2) of the Electoral Act 2006.

The section reads: “ballot papers shall be bound in booklets and numbered serially with differentiating colours for each office being contested.”  

Five of the eight petitions were struck out by the Presidential Election Petition Tribunal upon request by separate legal teams of President Yar’Adua and INEC. The petitions were each struck out on technical grounds while another maintained by ANPP was struck out upon the request by the party to withdraw it.

Although some of the petitioners went on appeal before the Supreme Court, up till now, none of the appeals challenging the decision of the Court of Appeal striking out their petitions on technical ground was heard by the apex court.

The only two petitions that survived the technical traps set by Yar’Adua and INEC were those maintained by Buhari and Atiku. The two petitions were heard on their merits by both the tribunal and the Supreme Court.

 

The Presidential Election Petition Tribunal ruled in favour of Yar’Adua on the account that all the allegations contained in their petitions were not proved so also the Supreme Court vide its majority judgment. In Buhari’s case, four of the seven justices upheld the findings of the lower court while three annulled Yar’Adua’s election and ordered a fresh presidential poll within 90 days.

Generally, Justice Niki Tobi, in his leading judgment, said the evidence adduced by Buhari to prove his case was insufficient but he was quiet on the findings of the Court of Appeal that the

 election was conducted in breach of the provisions of the Electoral Act, particularly section 45 (2).He said at the time the legal battle started, Chief M. I. Ahamba, SAN for Buhari indicated that he would call 150 witnesses but he finally ended up with 19.

“Although cases are not won by a village or community of witnesses, where are the remaining 131 depositions of witnesses? Should the appellant be taken as making a great play in this important matter of calling evidence and if so, can he say in reality that he proved his case, “ Justice Niki Tobi asked.

He further said that in an election petition challenging the conduct of the election throughout the length and breath of a vast country like Nigeria , “are 19 witnesses adequate to prove the case of the appellant

He said out of the 19 witness depositions, 18 were rejected by the Court of Appeal.

“Were the 18 rejected not designed to prove the case of the appellant, and if so, can the appellant say in reality that he proved his case?” he further asked.

He further reasoned: “a petitioner who contests the legality or lawfulness of votes cast in an election and the subsequent result must tender in evidence all the necessary documents by way of forms and other documents used at the election. He should not stop there,” he added.

But as soon as it was the turn of Justice George Adesola Oguntade to deliver the leading dissenting judgment, the petitioners’ supporters re-adjusted themselves. Immediately Oguntade J said that it was unfortunate that he was dissenting with the majority judgment, there was an unusual quietness amongst the justices of Supreme Court.

The CJN who is known for smiling broadly even when he is saying something serious comported himself. He did not smile for once all through the time the dissenting judgment lasted. Justice Niki Tobi who, most times, was re-adjusting himself on his chair, could not look at Justice Oguntade casting  occasional glance at him.   

The majority judgment upholding Yar’Adua’s election, no doubt divided the polity. Some hailed the judgment as the best in the circumstance while others said it was a let down. Those who believed the majority judgment was okay argued that if the apex court had upturned Yar’Adua’s election, there could be a monumental problem that might explode. 

Besides, they maintained that the judgment was an improvement upon what the apex court  decided in the 2003 presidential poll which produced Chief Olusegun Obasanjo as president. They said that though the verdict did not reflect the justice of the case before the court but that one day, we would get there.

But for others in the opposing camp. they said the majority judgment of the court was shocking. They said given the facts of the case, one would have expected that the apex court would annul the election. It was the contention of many that Justice Niki Tobi and Justice Oguntade would take the lead in annulling the election, given the facts of the case and their glowing records.

They said they were disappointed to see the two sound and radical justices parting ways.According to an Abia-based legal practitioner, Anthony Fred, he said: “Niki Tobi’s position in this case is

 shocking.  The President of the Nigerian Bar Association, Mr. Rotimi Akeredolu,simply said of the two judgments: “We are happy about the development because we now have before all of us two judgments.

 The last category of the political cases under review are the criminal charges preferred against political office holders by the Economic and Financial Crimes Commission (EFCC).No fewer than eight former governors are currently facing trial for wide_ranging offences, including money laundering.

The eight of them already arraigned by the EFCC are Dr. Chimaroke Nnamani of Enugu State; James Ibori of Delta state, Saminu Turaki of Jigawa state; Orji Uzor Kalu of Abia state, Rev Jolly Nyame of Taraba, Joshua Dariye of Plateau State, former Governor of Ekiti state and Lucky Igbinedion of Edo state.  The court had since granted them bail. It was also rumoured that the commission is planning, during the new year, to embrace plea bargain to shorten the time of trial of other ex_governors, retrieve the alleged ill_gotten wealth in their possession and allow them enjoy their liberty.  

The employment of plea bargain by the prosecution to settle criminal trial has also polarized the polity. The sentence imposed by the trial judge who handled Governor Igbinedion’s case worsened the situation. In fact, many are kicking against further use of plea bargain by the prosecution. the former NBA boss, Mr OCJ Okocha (SAN), yesterday said that although the judicial tool of plea bargain is not unknown to jurisprudence but that it will not help the fight against corruption in the country.

He said that if the commission indeed wants to fight corruption with all seriousness, he counsels that all on_going criminal cases against the alleged executive criminals before different courts nationwide should be allowed to run their full course.  A former World Court Judge, one_time President of the Nigerian Bar Association and erstwhile Attorney General of the Federation, Prince Bola Ajibola (SAN), had also attacked the EFCC over the use of plea bargain to settle criminal cases in the country.

He had specifically said that the judicial tool called “plea bargaining” being used by the anti_graft agency to secure conviction of corrupt public officers amounted to corruption. Ajibola had warned that plea bargain would be counter_productive in the fight against corruption as it would encourage other people to steal public money.

He warned the EFCC to discard the idea in the interest of the nation. Generally, several cases came before the courts during the period under review but it appears the judiciary was not as firm as it was during President Olusegun Obasanjo regime.

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