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Emodi V. Igbeke: A panel of biased judges?

By Obiora Obeagu

The case of Emodi V. Igbeke is no doubt one of the most controversial election petition cases in recent times. The crux of the matter is that the Appeal Court Enugu delivered two judgments on the same election that separately returned Senator Joy Emodi and Hon. Alphonsus Igbeke, as Senators representing Anambra North Senatorial District.

Both Anambra stakeholders and other Nigerians have intensified calls on the President, Goodluck Jonathan, the NJC, the Chief Justice of Nigeria, Hon. Justice Katsina_Alu, the IG of Police, Mr. Ogbonna Onovo and other relevant authorities to investigate the circumstances and processes leading to the delivery of the controversial judgment by the Appeal Court.

The case has gone back to the Enugu Appeal Court for interpretation of the two judgments and for certainty of judicial verdicts. But a worrisome aspect of this present court process is the composition of the Court. The revelation that three of the judges that sat in the earlier case resurfaced in the matter is quite worrisome! What is their interest in this case? Must they sit on the case?

Not even when some lawyers, including one of the party’s counsel and some other stakeholders made request for the constitution of an entirely new panel, possibly sitting outside Enugu, to hear and determine the matter. That is the right way to go, given the controversial nature of the case and accusations trailing the judges’ verdict.

Do you expect them to arrive at a different decision than the earlier judgment they delivered? No. Not at all! Not even when they are the majority in the panel (3 against 2).The composition of the Court lends credence to the suspicion that there may be a denial of fair hearing – likelihood of bias,  leading to a miscarriage of justice.

However, like I earlier mentioned, the actions of the judges give them off as having a mindset to achieve a particular result in this case against Senator Emodi. There were reports that the judges drafted in one Justice Sule Galadima that was involved in the case of Hon. Agbakoba V. Hon. Lynda Ikpeazu, perhaps in order to justify the judgment they may have pre-determined to deliver against Senator Emodi. That case has constantly been cited as a precedent in favour of Senator Joy Emodi, that when there are two equities, the first in time prevails.

This type of conduct gives the impression that the judges have made up their minds to deliver a particular judgment and are vigorously working towards it. Could it be the reason why they were hostile towards Senator Emodi’s lawyers? One cannot blame them. They are human beings and will certainly not be happy with all the accusations being leveled against them.

Fair hearing is a right guaranteed under the Constitution of Nigeria, 1999. Section 36 (1) clearly states that: “in the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person is entitled to a fair hearing by a court or tribunal established by law and constituted in such a manner as to secure its independence and impartiality”.

A court being “constituted in such a manner as to secure its independence and impartiality” means that there should not be any perception or likelihood of bias. The bias rule covers situations where the decision maker has a direct or indirect interest in the matter being decided and the appearance of bias. This does not require that actual bias arose in the decision making process.

The test is whether a fair-minded observer might reasonably apprehend that the decision-maker might not bring an impartial mind in the resolution of the question. There are already protests by both Senator Emodi’s lawyers and outcry by Anambra stakeholders, and other civil society groups that they lack faith in the composition of the present Court of Appeal panel handling the Emodi V. Igbeke matter and in their ability to do justice.

Recently, as in several other instances, a Supreme Court Justice, Dahiru Musdapher, disqualified himself from presiding over the appeal of Sokoto State gubernatorial election. According to him, “I had taken part in discussion pertaining to the case between the CJN and the President of the Court of Appeal. I did not personally feel comfortable to adjudicate in this matter.” He apologized to the parties and begged them to allow him disqualify himself from taking part in hearing the matter.

The question I continue to ask is, must the three judges that delivered the controversial judgment sit on the case seeking interpretation? One may argue that they were asked to review their judgment. But then, the judgment does not belong to the judges. It is the judgment of the Court of Appeal. My hypothesis to justify this argument is this: assuming that three judges A, B, C delivered two contentious judgments and one of the parties applies for the judgments to be re-examined. However, before the application could be heard, the judges were due for retirement and were all retired.

Does it mean that that will be the end of the matter because the judges are gone? Of course not. Judges come and go, but the Courts still remain. We have only one Court of Appeal. The divisions are for convenience. And in this matter, the question of seeing that justice is not only done, but must be seen to be done far outweighs any question of convenience.

Section 36 (2) (b) of the 1999 Constitution supports that argument that all steps must be taken to ensure fair hearing as contained in S. 36 (1) where the law makes the judgment of the judicial authority final and conclusive. Since the Appeal Court is the final arbiter in election petition matters, all necessary measures must be taken to ensure that there is fair hearing.

Ordinarily, given the controversial nature of the case of Igbeke V. Emodi, the judges should have disqualified and excused themselves from further sitting on the case but their conduct in clinging on to the case gives the impression that they have vested interest in the matter and may have been compromised as being alleged.

More so, when there are persistent allegations that the judgment was obtained by fraud on the basis of forged results tendered by Hon. Igbeke. Every measure must be taken not only to guarantee justice, but to ensure that this case does not make a mockery of both our judiciary and our electoral process.

*Obiora Obeagu, a lawyer, writes from Abuja


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