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The Bar and the bench at ‘war’ over verdict on 2007 presidential poll

By Ise-Oluwa Ige

Ten months ago, a panel of seven Justices of the Supreme Court dismissed two major petitions challenging the emergence of Alhaji Umaru  Yar’Adua as the winner of the April 21, 2007 presidential poll. The apex court said the two petitions  lacked merit.

The two separate petitions were filed by Alhaji Atiku Abubakar who flew the flag of the opposition Action Congress (AC) in the presidential poll and Maj.-General Muhammadu Buhari who contested on the platform of the All Nigeria Peoples Party (ANPP).

But the verdict was split. In the Buhari’s case, four of the seven justices who sat on the case upheld the unanimous decision of the Presidential Election  Petition Tribunal  which validated Yar’Adua’s election while the three others who were in the minority annulled the lower court’s decision and the entire outcome of the poll.

President Yar'Adua with Justice Idris Kutigi
President Yar'Adua with Justice Idris Kutigi

The five-member panel of the Presidential Election Petition Tribunal headed by Justice James Ogebe, dismissed the two petitions on February 26, 2008 while the panel of seven justices of the Supreme Court dismissed the appeals arising therefrom on December 12, 2008.

Although the judgment of the Supreme Court aggrieved Buhari in the case, he could not go elsewhere because of the provision of section 233 (2) (e) of the 1999 constitution which makes the Supreme Court a final court on presidential election matter.

But Buhari’s lead counsel, Chief Mike Ahamba (SAN), who said he was ambushed by the justices that sat on the case took the matter to the National Judicial Council for redress. He said he was not only tricked into not calling oral evidence but that Justice Niki Tobi disparaged his professional competence.  He did two petitions against the justices that handled the case. The first petition came exactly 14 months  after the Presidential Tribunal dismissed Buhari’s petition.

It was a petition wherein he sought for the sack of all the five justices that sat on the case in the court of first instance. NJC is a body statutorily empowered to hire and fire erring judicial officers.   The judicial officers whom Ahamba wanted removed from office are Justices James Ogebe, John Fabiyi, Abubakar JKega, Uwani Aba-Aji and Raphael Agbo.

All of them were serving on the Court of Appeal bench when the matter was heard. Two of the five justices who played prominent roles in the case including Ogebe and Fabiyi, have since been elevated to the Supreme Court. Ogebe J, for instance, was the Chairman of the five-member panel tribunal who presided over the proceedings in the case.

His elevation to the apex court bench was approved by President Yar’Adua few days to the delivery of judgment in the poll petition while Fabiyi who took over as the presiding judge and who prepared and read the lead judgment which validated Yar’Adua’s election got his promotion immediately after the judgment was delivered.

Ahamba in his petition to NJC, argued that some of the five justices allowed their personal interests to influence their official conduct and decision while he accused all of them of ganging up to pervert justice in the case in alleged breach of section 36 (1) of the 1999 constitution and the rules of fair hearing.

Shedding light on the allegations against them, Ahamba (SAN) said the justices  deceived him into not calling oral evidence in the presentation of his client’s case and thereafter using the same situation or circumstances foisted on him by them to decide against his client in the final judgment.

To be precise, he recalled October 16, 2007 when the panel made a pre-hearing order allowing the petitioner to call 150 witnesses and gave him 30 days to do so as requested by counsel.  He said he fielded Buhari’s first prosecution witness, Mr Emmanuel Iwuamadi, on October 23, 2007 to testify but that midway, the court rose suo motu and invited into chambers all lead counsel to say that there was no time to take oral evidence and that documentary evidence would be used in determining the case.

He said Justice Ogebe who initiated the move directed counsel to simply tender certified documents from the bar since all documents were INEC certified official documents. Ahamba said Iwuamadi was asked to step down from the witness box while the remaining documents he was to tender had been tendered from the bar.

He however added that following developments in other proceedings before election petition tribunals wherein documents tendered from the bar were rendered nugatory by the tribunal on the ground that they were dumped, he said he requested for another chamber conference where he insisted on presenting oral evidence.

He said the panel rejected his request but as a compromise directed him to file his inspection witness deposition which after presentation was also rejected by the panel. He said after Justice Ogebe-led panel prevented Buhari from calling oral evidence,  Justice Fabiyi, who delivered the lead judgment declined to consider the documentary evidence before the court to establish the non-compliance with the electoral law.

He said Fabiyi J. held that several paragraphs of the petition were not proved due to absence of oral witness while ignoring the documentary evidence before him as if they were not legal evidence. He argued that the panel by jointly and deliberately putting him in what they conjectured was evidential jeopardy and using same against him have committed a gross judicial misconduct and ought to be removed from office in line with the provision of section  292 (1) (b) of the 1999 constitution.

He gave other reasons why the justices must be removed to include their refusal to sign subpoena duces tecum and subpoena testificandum on witnesses in spite written protestations, introduction of non-existent facts into the proceedings and applying same in the judgment and fraudulent suppression and concealment of legal evidence on record. While this petition was pending, Ahamba filed another one dated June 2, 2009  against only Justice Niki Tobi of the Supreme Court. In the petition, he begged the NJC to sack the jurist.

Although seven justices sat as a panel on the appeal arising from the verdict of the Presidential Election Petition Tribunal, Ahamba singled out Niki Tobi for sack.  It would be recalled that Tobi J. prepared the lead majority judgment which sealed the electoral victory of President Yar’Adua. In the Tobi’s judgment which was rubbished by the lead minority judgment of Justice George Oguntade, he had said that Buhari perhaps had a good case but that his lawyer messed it up for him.

He said that it was unbelievable that a lawyer of the caliber of Ahamba would prosecute a serious petition like the instant one without calling oral evidence even though cases are not won by calling a community of witnesses. The covert attack on Ahamba was, no doubt, an indictment of the bar given the fact that he is one of the torch-bearers of the legal profession.

But Ahamba  gave it back to him hot in the petition he addressed to NJC calling for his sack.

He said Tobi J is unfit to remain on the hallowed bench of the Supreme Court having breached the oath of office he took as a judicial officer under section 290 (1) of the 1999 constitution. He catalogued the alleged infringement of his oaths of office to include that he suo motu raised an appeal and hearing same on a finding of fact made by the Court of Appeal at the first instance hearing against which neither side before the Supreme Court appealed, with full knowledge that no appeal was filed against the finding of the Court of Appeal; based his conclusions substantially on fabrication of non-existent facts on record and misrepresentation and concealment of facts on record by a cover-up of unprecedented dimension done with brazen impunity.

He gave others as deliberate misrepresentation of the law in order to achieve an obviously premeditated intent of entering judgment against the Appellant in the appeal, and in the process brazenly descending into the arena of legal dispute with the overt intent of ensuring that the Appellant lost and the respondents won.

He gave abundant instances to substantiate each of the allegations. He said “the multiple misconduct by Justice Tobi must not be condoned, lest it leaves an impression of being a representation of what the institution to which he belongs is.

“For a Justice of the Supreme Court to abandon the record of appeal and the complaints and aggrievements contained therein, create a fresh appeal and proceed to adjudicate on same, conceal and suppress with brazen impunity, the argument of counsel of a party before him by declaring such argument as being non-existent, interpret sections of the law and define words with a view to achieving a self-centered purpose singly and collectively amount to a betrayal of the honour, nobility and learning with which the legal professional is associated, and a desecration of  the sanctity of the Supreme Court as the highest temple of Justice and the bastion of societal stability in Nigeria.

“Justice Tobi has thus lost the moral basis to sit on a Judicial Bench let alone a Supreme Court Bench. He therefore richly deserves to be removed from that judicial office under Section 292(1)(b) of the 1999 constitution and should be so removed.

“May I specifically request that a copy of the Learned Justice’s response to my petition be made available to me when received,” he said. The attack by Chief Ahamba on Tobi JSC was also no doubt an indictment of the bench, given the fact that the affected jurist is one of the best on the Supreme Court bench.

The President of the Nigerian Bar Association, Mr Oluwarotimi Akeredolu (SAN), who had a copy of Chief Ahamba’s petition wrote a letter to the Chief Justice of Nigeria, Justice Idris Kutigi asking him to treat and consider the weighty issues raised therein. His letter was dated May 18, 2009.

On July 15, 2009, NJC replied Ahamba  on the two petitions to the effect that all the justices had been exonerated, having found that his complaints against them were unmeritorious. But the council gave no reason why it dismissed the two petitions as lacking in merit.

The Council also told him that it would not give him the requested copies of the responses of the affected justices, even if they were available, saying it was not under any obligation to oblige him such reactions. The NJC in the letter written by its Secretary added: “however, the council felt concerned about some of the sarcastic statements made in your petitions against his lordship which is unbecoming of a lawyer of your status being a Senior Advocate of Nigeria and decided to advise you to cultivate the culture of using temperate language when addressing such issues in future,”

Few days after he was exonerated by the NJC,  Tobi JSC also wrote a petition seeking to disbar Ahamba for professional misconduct. His sin was that he allegedly used intemperate language against him in his petition. The same way NBA wrote NJC when Ahamba wrote his petition, the NJC, pronto, also wrote NBA and Ahamba to inform them of the petition and that it had been referred to the disciplinary organ of the NBA for appropriate action.

Although nothing has been done on this issue, the public is watching what will come out of the silent war between the bar and the bench over the verdict the bench gave to confirm Yar’Adua’s election.


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