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Agba Jalingo: Defence Counsel accuses judge of making extra-judicial comments

Jalingo
Agba Jalingo

Mr Adeyinka Olumide-Fusika, lead defence Counsel to Journalist and activist, Agba Jalingo who is facing charges of Treasonable felony and terrorism, has complained about the presiding judge, Mr Justice Simon Amobeda of allegedly making extra-judicial statements that could compromise the integrity of the trial.

The further affidavit was in furtherance of his quest in demanding for electronic recording of the secret trial.

Olumide-Fusika, who complained that the judge misrepresented him in the alleged extra-judicial comments, deposed inter alia:

“3. However, it has come to my knowledge that on Wednesday the 13th day of November 2019, his lordship, the Presiding Judge, the Hon. Justice Simon Amobeda conducted an informal session in the case in the absence of the parties and their counsel. I got to know of this through newspaper publications and exposure of an alleged audio recording by an unidentified attendee of the said informal session. A copy of the said publication (titled: “AGBA JALINGO’S LIFE IS IN THE COURT’S HANDS, JUDGE SAYS IN LEAKED AUDIO”) and of the electronic recording therein exposed by the online newspaper, TheCable, is herewith attached and marked “EXHIBIT THECABLE”.

3.1. The transcription of the audio recording, by another online publication, The ICIR, (https://icirnigeria.org/agba-jalingo-cast-doubt-on-judges-fair…”) is herewith attached and marked “EXHIBIT TheICIR”.

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3.2. I have myself listened to the audio recording, and the following is what I heard said between a voice that sounds much like that of His Lordship, the Hon. Justice Simon Amobeda, and some unidentified intervener(s):

JUSTICE SIMON AMOBEDA: Senior Advocate of Nigeria is now in a criminal matter that has a death sentence attached to it. Late Gani Fawehimi walked out of a tribunal in the Ogoni matter of Ken Saro Wiwa when the matter went on and Ken Saro Wiwa was convicted and sentenced to death. When you play to the gallery and you were addressing us, he went to hire all these small students to come and bombard the court. The court is ready to give justice, I don’t care about any person. I cannot take instruction from him, no it is not possible. I take instruction from God Almighty whether you believe it or not.

When it goes in your favour Justice Amodeba knows how to do this job, but when it goes against you, the next thing is this. He brought an application before me and it was argued vehemently, seriously and I delivered the ruling. And you will now be going through the back door to introduce a similar application. Of course, you should know that I will reject such application, Only for you to say “ehn bias”. Bias in what? It is so unfortunate. That some lawyers who came with the Senior Advocate of Nigeria who think he is a big man from Lagos. Senior Advocate of Nigeria 2019, he did not know I could investigate him.

All of you, the moment you appear in front of me how I know about you, you will not know. I am not an arrogant person but I told some persons yesterday if it was those days, if not because of this. Let’s go to a little junction and let’s see whether you can get it. If you get it you will be free, if you cannot you will get fined. If you come here and the matter is not in your favour then you go to the Court of Appeal, don’t come and make noise.

Senior Advocate, the three times you appeared before me. The first time was to bring down the court, the second time he was gentle, the third time he was saying “Waoh! Waoh!! Woah!!!” he was shouting at the top of his voice. I told myself I refuse to be intimidated, not this man. It can never happen. So Lawyers should learn… when it goes against you, don’t carry your pen and go.

A Senior Advocate came from Lagos, carried his books and left. The lawyers with him from this division that have appeared before me and I have given judgment in favour of all of them let my people go. If you are representing your client, do it very well, Not for you to come and shout if you shout at me, where will you go? Nowhere. The first day you shouted, “Pra! Pra! Pra! Hey!” I was looking at this young man I felt like flying from this place and jump on him and say shut up. Some lawyers were here yesterday, they didn’t even protect me at all. It is unfortunate.

UNIDENTIFIED INTERVENER: Sorry my Lord

JUSTICE SIMON AMOBEDA: A man is shouting at the court, it is left for you to say, “Ah ah, this court is not like that,” lawyers of this jurisdiction they are not meant to be shouting at the judges. Somebody was shouting that is not the first time he did, and then you keep quiet and you were looking at him.

He was gallivanting and shouting at the judge, and then looking at small persons in the gallery. It’s just submission o. You have already argued an application and there was a response from the prosecution and then I said okay reply on point of law. You began to say everything and you want me to record what you are saying. For what?

It is a criminal matter that punishment carries the death penalty. If you walk out … And I told the young man yesterday “Your life is now in the hands of the court.” Choose, are you going to defend yourself or you want…, I will give you an adjournment. It’s you alone in this.

I am not here to bring injustice, It is not possible. Some of you have been in this court where I gave judgment and discharged and acquitted someone that was meant to spend 15-25 years in prison, I said go you did not commit the offence. How can someone just wake up from the dreams and say I am conniving with the prosecution. For what now? I am urging him to do what he needs to do.

The matter is adjourned till tomorrow, so let’s see what will happen, whether they will come or not. But one thing I know is that the trial will go on. I don’t have anything against any person, I don’t know anybody in this place, and by the grace of God, nobody has tribal marks like me in this place. So why will I now say because you have tribal marks like me, I will begin to favour you/ I don’t do it. If I want to favour you it will be in my chambers, if you bring the good thing I will favour you in my chambers, if you don’t give me …

Let us avoid running down judges, It is not good for us. it is not good for the system. You see what we go through on a daily basis. I did not invite security men yesterday, the whole of this place yesterday both DSS, Police and Civil Defense. I didn’t call any person. Perhaps maybe of what they do, maybe of what they do, maybe because of the threats here and there. When the policeman said they threatened him, they were quarrelling threatened witnesses said they could not threaten. How about me?

I got a letter of threats. Yes! I got a letter of threats, and the one threatening me does not know the kind of person he is threatening. I got a letter. The man put his name there and said I should go anywhere, I said I don’t need to go anywhere but one day God will catch him. Somebody will carry his hand and write a letter and address it to the court.

Let us avoid doing things that will bring down the image of the bar and the bench. My brother, my senior sister has been kidnapped more than how many years who is saying something? I expect that the NBA in this country will down the tools and … NBA just did, you know what the Yorubas will say “boju boju o, boju boju”. The woman is still there; they are asking for 200 million naira we made available 20 million they said it is not enough for them, justice of the court of appeal. Then somebody will now shout at me it is not possible.

UNIDENTIFIED INTERVENER: I want to apologise on behalf.…

JUSTICE SIMON AMOBEDA: You were not here yesterday, how can you say you have been a lawyer for 35 years before you became a SAN, something was wrong somewhere. His antecedent is to go to court and shout at judges and lawyers that’s why they denied him the SAN for so many years. Because you got your SAN in 2019 and then you want to come and vent your grievances on the judge, I can never … for a wicked man.

It is rather unfortunate. Some lawyers were just watching him and just clapping their hands. Well, he gave me and I gave it back to him. You know my own is bumper to bumper no space. If you give me, I will give you back. He was shouting and shouting, I told them to call the next matter. He packed his bags and walked out. Who won the battle? Was it not me. He left and I was still sitting.

UNIDENTIFIED INTERVENER: I want to apologise on behalf

JUSTICE SIMON AMOBEDA: Don’t apologise because he is not your mate. Because you people believe when people from outside, the prosecution will be like this. So he is from Lagos and so what? I grew up in Lagos. This man grew up in Lagos … senior lawyers from here … appeared with him.

Even appeared with him. I don’t know … they walked out on me. These are lawyers within the jurisdiction. Ah ah. I’m not stating grammar. All of them walked out… they left him behind. And then I told him “young man, you are alone now” all these people… you are the one who is going to face the music. Where do you go from here?

UNIDENTIFIED INTERVENER: My lord, I am sorry to hear that such incident….

JUSTICE SIMON AMOBEDA: If you were yesterday you could have spoken to him. I trust you.

UNIDENTIFIED INTERVENER: it is rather unfortunate, however, my lord, a good dancer comprehends the…of a good drama. I am even though disappointed that lawyers of this jurisdiction were here…

JUSTICE SIMON AMOBEDA: They did not say anything!

UNIDENTIFIED INTERVENER: And they did not… a Senior Advocate of Nigeria at that. It is rather unfortunate. If I were here myself, I would have caused the senior advocate to know that … if at that status in our legal profession, one should exhibit such tendency, without looking back, then why should people like us be aspiring to be there? it is a very disappointing situation. My lord, at the same time, I want to say that the development will even make my lord stronger because that gives you an opportunity to now… in the future and then get a better judgment. So sorry my lord.

JUSTICE SIMON AMOBEDA: I can never subvert the course of justice. I told the young man yesterday, if you …. Very well, I will discharge and acquit you and heaven will not fall. That is me. But if you don’t give me well, I will convict and sentence you and heaven will also not fall.

It is the law we are talking about here. Unfortunately for them, they brought a late application yesterday. The man you are shouting at that until I promise a verbatim recorder he will no longer appear in this matter again. How? That I did not record him very well … Eh! Sorry, let us go on with the business of the day… I am equal to the task and God has given me boldness to do what needs to be done. Let it be known that I can never on this seat subvert the course of Justice.

4. While I reserve my view on the rightness or otherwise of his lordship making a case pending before him for trial and determination (indeed, one in which the Defendant faces the jeopardy of a sentence to death, if found guilty) the subject of the type of open discussion, banters, expression of the judge’s views, sentiments and thoughts on how he will likely decide the case and convict and sentence the Defendant to death (like Ken Saro-Wiwa) contained in the alleged audio recording,

I say with all emphasis at my disposal that what his lordship represented of me behind my back to his jury of unidentified persons is not correct. I further say that all that his lordship represented as happening before him on the three occasions that I had led the defence team, and especially on Tuesday, the 12th day of November 2019, is inaccurate, if not fictional.

5. It is not true that I “went to hire all these small students to come and bombard the court”. To the best of my knowledge and information, all the lawyers I have ever announced as part of my team on the three occasions I was in physical attendance in the case before his lordship are qualified lawyers.

They are Messrs Attah Ochinke (the Hon. Former Attorney General & Commissioner for Justice, Cross-River State), James Ibor, M.M. Obono, H.B. Teedu, I.E. Andy, C. Njong, and C. Udofia. I do not know of any one of them that is a student. Indeed, apart from myself that is based in Lagos, the only other person in the defence team that is not based in Calabar is Mr M.M. Obono who is based in Abuja. Indeed, His lordship had on each occasion I was before him in open court demonstrated his familiarity with every other member of the defence team, and he knows they are not students.

6. I have argued only two applications before his lordship. One was oral, the other was written.

6.1. The first one was an oral application for bail on 30/10/19, and it was in reaction to the Prosecutor’s Application for adjournment of the trial following the re-arraignment of the Defendant on a fresh Charge. We opposed the application for adjournment, but in the alternative prayed his lordship to admit the Defendant to bail if the Prosecution was not ready to open its case. The reason for the oral application for bail was rejected by his lordship, and the reason has not to the best of my knowledge arisen again to warrant us making a similar application.

6.2. The second Application was by a Motion on Notice dated 1st November 2019 which prayed the Honourable Court for “AN ORDER … varying/modifying the terms of its ruling delivered on the 23/10/2019”. The Ruling sought to be modified was one delivered on an application by the Prosecution (not by the Defence).

His lordship had in the said Ruling attached the condition that the orders therein made was opened to modification “from time to time”. It was the Ruling on this Application for the modification that his lordship delivered in the morning session of Tuesday, the 12th day of November 2019.

So, His Lordship’s record of the proceedings is inaccurate if indeed what it contains reflects what he allegedly stated in the audio recording that: “He brought an application before me and it was argued vehemently, seriously and I delivered the ruling. And you will now be going through the back door to introduce a similar application. Of course, you should know that I will reject such application.”

7. It is untrue that I at any time shouted at the Court, and/or that at “the third time he was saying “waoh! Waoh! waoh!” he was shouting at the top of his voice.” The “third time” was the morning session held on Tuesday, the 12th day of November 2019. It was not a secret session. It was in a jam-packed courtroom with persons other than his lordship and myself in attendance.

There are in existence several independent reports of what transpired, and especially of the words I uttered and the tone with which I uttered them (which was immediately after his lordship had delivered his Ruling refusing the application to modify the secret trial orders to restrict the secret session to the taking of witnesses whose identity were not already explicit on the Proof of Evidence). None of these independent accounts of my utterances and/or how the tone with which I addressed the Court reported me as “saying “waoh! Waoh! Waoh!”” or that I did so or otherwise addressed the Court “shouting at the top of” my voice.

6.1. To the extent that his lordship’s record of the proceeding of his morning session in the case on Tuesday, the 12th day of November, 2019, is a reflection of this statement of his lordship in the leaked audio recording, then I say with all emphasis at my disposal that his lordship’s record of the proceeding is inaccurate.

I understand that there is a courtroom CCTV. I believe that a review of it will confirm that I did not at any time during the proceeding conduct myself in the manner depicted by his lordship.

Apart from the Courtroom CCTV, I believe that the many members of the public that attended and witnessed the proceeding will, if required, come forth with independently taken and indisputable evidence of what transpired before his lordship in the morning session in this case on Tuesday, the 12th day of November 2019. I do hope the matter is not allowed to get to that level.

7. Furthermore, the statement allegedly made by his lordship to his jury of unidentified persons in the leaked audio that I walked out on him is inaccurate recording, if indeed it reflects what his lordship has on the record he took of the proceeding in which I was in attendance before him in the morning of Tuesday, the 12th day of November 2019.

7.1. To the best of my own knowledge and recollection, after delivering his Ruling, his lordship followed-up with a pronouncement standing down the case to 12.00 pm. As I had no other business before the Court that morning,

I RESPECTFULLY (in the FULL GLARE of everybody in the courtroom) took my bow and exited the courtroom with other members of my defence team. I dispute anything said or any impression given to the contrary in any record of the Court, especially by the statement allegedly made by his lordship in the leaked audio (if that indeed is a reflection of what his lordship has put down as his record of the proceeding had before him in the morning of Tuesday, the 12th day of November 2019) that:

You were not here yesterday, how can you say you have been a lawyer for 35 years before you became a SAN, something was wrong somewhere. His antecedent is to go to court and shout at judges and lawyers that’s why they denied him the SAN for so many years. Because you got your SAN in 2019 and then you want to come and vent your grievances on the judge, I can never…

“Because you got your SAN in 2019 and then you want to come and vent your grievances on the judge, I can never…for a wicked man. It is rather unfortunate. Some lawyers were just watching him and just clapping their hands. Well, he gave me and I gave it back to him. You know my own is bumper to bumper no space. If you give me, I will give you back. He was shouting and shouting, I told them to call the next matter. He packed his bags and walked out. Who won the battle? Was it not me. He left and I was still sitting.”

7.2. I dare to repeat that as the proceedings in question was not one had in secret but in a courtroom that was jam-packed with lawyers and members of the public, there are in existence records taken by independent observers of all that transpired in court that morning, which are different from that represented by his lordship in the leaked audio recording. However, the evidence of his lordship’s courtroom CCTV will also attest the inaccuracy of his statement as to when, and the manner in which I (and other members of the defence team) took our leave on the said morning.

8. I take note of the fact that his lordship is recorded to have allegedly stated in the leaked audio that he has investigated me to know the kind of practice I engage in. I have no doubt in my mind that (despite all the bad things he claims to have come to know of me) his lordship’s investigation must have revealed and confirmed to him that I have no reputation for colluding with anyone to thwart or defeat the cause of justice by seeking after “let my people go” verdicts, the type by which a defendant “that was meant to spend 15-25 years in prison” gets discharged and acquitted. I am also sure his lordship’s investigation of my person and practice would have further revealed to him that I am not one of those practitioners whose stock-in-trade he alluded to in the statement he allegedly made in the leaked audio that:

If I want to favour you it will be in my chambers, if you bring the good thing I will favour you in my chambers, if you don’t give me.

8.1. I note the investigatory discovery allegedly made by his lordship that I was “denied” the SAN title for “35 years”. Whether or not I deserve the denial is not an element of the offences for which the Defendant stands charged before his lordship in this case. I continue to encourage the Defendant to place his trust and confidence in the court, and to continue to believe that his lordship not because of this factor do anything other than justice according to the law in his case.

9. I note the hints and threats of violence and incitement to violence against my person in the leaked audio, conveyed by statements allegedly made by his lordship, such as “I told some persons yesterday if it was those days if not because of this. Let’s go to a little junction and let’s see”; and “I was looking at this young man I felt like flying from this place and jump on him and say shut up. Some lawyers were here yesterday, they didn’t even protect me at all.” I do believe that his lordship if the voice in the leaked audio is truly is, does not mean it.”

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