3.05.2 Committee’s comment on Mr. Agu’s Petition

A careful perusal of these paragraphs, show that the complaints are that:

· A panel was constituted by the Hon. President of the Court of Appeal to hear the Sokoto appeal on his assumption of office when his predecessor did not do so.

· The PCA did not exercise his discretion judiciously in the composition of the Sokoto Appeal panel because one of the Justices on the Panel is married to an influential politician.

· The PCA allegedly showed bias or interest in the case because he expressed an opinion on the judgment of the Court of Appeal, Kaduna in respect of the April, 2007 election appeal.

· The Justices held their conference in Abuja instead of Sokoto.

· The PCA did not accede to the request to disband the Panel of Justices and or was insistent that he will do nothing to halt the hearing of the appeal.

3.05.2.1 The Committee notes that:

(a) long before the petition was written, the parties to the Sokoto Governorship Election appeal have filed their processes, exchanged their respective briefs of argument and the appeal was duly argued on the 18/1/2010 and judgment adjourned to a date to be communicated to the parties.

In the Court of Appeal in Sokoto, the Petitioner did not object to the participation of any of the Justices on the Panel before or after the appeal was heard. The Sokoto Court of Appeal proceedings in the Election Appeal of 24/2/10 attest to this fact.

(b) the PCA did not sit as a member of the Appeal Panel of five Justices drawn from three different Judicial Divisions of the Court of Appeal. The duty and power to constitute a Panel of Justices for the hearing of appeals is vested in the PCA by the Constitution of the Federal Republic of Nigeria and the Laws.

(c) the choice of Conference venue for appellate Panels to consider their decision, is a matter for each of Panel constituted to hear an appeal. The PCA specific examples of conferences being held outside the seat of the court where the appeal is heard attests to this fact.

3.05.2.2. Having regard to these matters set out in paragraphs 3.05.1 and 3.05.2.1 of this report, the Committee finds as a fact that nothing said in the petition of Governor Wamakko amount to “serious allegation” against the PCA. There is no substance in any of the allegations in the said petition:

The PCA has the constitutional power to constitute appellate panel. The exercise of his undoubted constitutional power cannot be questioned by either the CJN or the Petitioner.

The exercise of the PCA’s discretion as to the composition of the panel is not a matter to be questioned by the Petitioner especially when the parties have argued their appeal on 18/1/2010 and the Petitioner did not object to membership of the panel. In any case, the petition stated no valid ground of objection to the participation of any member of the Panel.

The Petitioner did not provide facts to support his reference to “bias”. That the PCA did not accede to Yahaya Mahmood’s request that the Appellate panel be disbanded is not evidence of bias. The opinion expressed on the long decided Kaduna case by the PCA to one member of the Panel is not evidence of bias.

· the matter of venue for conference of participating justices is a matter for the Panel and the CJN must know this practice as a matter of fact.

3.06 Petition No. 2 written by Yahaya Mahmood, Esq. for INEC

In paragraphs 8, 9, 10, 11, 14 & 15 of the petition where the PCA was mentioned, petitioner stated thus:

“8. There were thus 2 appeals, one before COURT OF APPEAL, ABUJA, one before COURT OF APPEAL, SOKOTO from decision of the Federal High Court, Abuja and Election Tribunal Sokoto on the CONSTRUCTION OR INTERPRETATION OF THE JUDGMENT OF THE COURT OF APPEAL, KADUNA.

9. To avoid conflicting decisions which will cause JUDICIAL CONFUSION AND ANARCHY, Chief Wole Olanipekun, SAN wrote a letter dated 22nd April, 2009, drawing the attention of the President of the Court of Appeal (Umaru Abdullahi, as he then was). We were to await the outcome of the Supreme Court decision to settle the matters once and for all.

10. On his assumption of office, ISA AYO SALAMI PCA, the new President constituted a panel for the Sokoto Appeal. Senator Umar Dahiru and myself met him to find out if he was aware of why the decision to await the Supreme Court judgment was taken by his predecessor to wit, TO AVOID JUDUCIAL ANARCHY. He said he was aware.

11. Just to find out motives, if any, we met him again and tried to convince him why his decision was not appropriate. We had a 2½ hour discussion and his Lordship was only trying to explain to us that Court of Appeal Kaduna Division judgment, subject of the whole controversy, was wrong. We were apprehensive for 2 reasons. Why he ignored the decision of his predecessors, and why he was so forceful in his argument. We left him convinced that he has more than official interest in the matter. All we wanted was some conviction that there was no foul play.”

14. My Lord, JUSTICE IS ROOTED IN CONFIDENCE. We need confidence that the President of the Court of Appeal who set up the panel is not bias in any way. He should have been more tactful and diplomatic. We need confidence that the panel is free from any interference or control by the President or other persons. We do not have that confidence. In fact, what we have is to the contrary.

15. We do not want to embarrass the Judiciary or any of its Principal Officers. The President of the Court of Appeal should disband the panel in the interest of justice and re-constitute another one. We do not want to make a formal complaint to National Judicial Council. Those to whom the President spoke, would like to appear before you, in his presence and STATE ON OATH all he told them.”

3.06.1 These paragraphs which speak for themselves, show clearly that –

(a) Petitioner’s complaint is the fear expressed by Counsel that there may possibly be two conflicting judgments of the Court of Appeal, Abuja in Suit No. CA/ABJ/276/08 in respect of the originating summons filed at the Federal High Court in Abuja and the judgment on the fresh election appeal filed in Sokoto in Suit No. CA/S/EPGOV/10/09 at the Court of Appeal, Sokoto.

· The Committee is not aware that a litigant’s fear of a possible conflict in the decision yet to be given by two different Panels of the Court of Appeal in two different appeals from two different Courts of law with distinct and exclusive jurisdiction is a justifiable legal basis for staying proceedings of one such Court or disbanding the Appeal Panel so as to prevent it from delivering its judgment in the appeal which had already been argued and adjourned for judgment.

(b) On the basis of the Petitioner’s apprehension, Senior Counsel for Gov. Wamakko wrote to the retired PCA, Hon. Justice Umaru Abdullahi, the letter dated 22/4/2009 praying that the Court of Appeal Sokoto be stayed until determination of the appeal in Abuja whether by the Court of Appeal or the Supreme Court.

The Committee notes that as at the time and date the letter was written by Senior Counsel, there was no question of any appeal pending in the Supreme Court. An anticipatory fear of a litigant is not proof that the PCA who is not a member of the Appeal Panel did any thing to arouse the litigant’s fear

(c) The complaint that the PCA, Salami, should not have set up the Sokoto Appeal Panel because his predecessor in office, acceded to Senior Counsel’s application to stay ‘the Court of Appeal – Sokoto’ to avoid Judicial anarchy is not a tenable argument.

The Committee notes that the Petitioners did not state if the retired PCA made any order that an appellate Panel should not be constituted by his successor. Even if he did, such administrative order or directive will not bind his successor from discharging the duty to constitute a Panel to hear election appeals where time is always of the essence in all the cases of elective offices.

3.07 Having examined the petition thoroughly, the Committee has found NO allegation of misconduct against the PCA. Nothing said in other paragraphs of the petition specifically set out in this report or in the entire petition amount to any allegation of misconduct or wrong doing on the part of the Hon. PCA – Hon. Justice Salami. The Committee has not found any “serious” allegations referred to in the CJNs’ query dated 18/2/2010.

3.08 PCA’s Response to the CJN’s query

The PCA’s response to the query issued to him by the CJN appears to provide full explanation to the issues raised in the two petitions forwarded to the PCA. For completeness, let the PCA’s explanation be examined.

3.08.1 Venue for Appellate Panel holding the Conference

The petitioners referred to the fact that the appellate panel of the Sokoto Court of Appeal which heard the Governorship election appeal held their conference in the Court of Appeal Conference Room, Abuja and suggested that this was at the instance of the PCA.

In his answer to the query, the PCA stated thus:

“On venue for holding conferences, there is no rule that conference should be held where the appeal was heard. In fact, it is in the interest of the Justices to hold conference, away from the Division the appeal was taken in the interest of the security.

It all depends on the members of the panel considering their security and convenience. In fact, since I became President of the Court of Appeal, Your Lordship may wish to know that I have set up three panels. All the three held their conferences here in Abuja.

And also during the period of my immediate past predecessor, we held conferences and wrote the judgments of Delta, Ondo and Edo Governorship appeal taken in Benin, here in Abuja. Governor Odili’s appeal was taken in Port Harcourt and conference was held in Lagos. Ibiyeye, JCA panel took appeals in the South East as well as South-South, but came to Abuja to hold conferences.”

3.08.2 The Committee accepts the explanation of the PCA and concludes that the practice of appellate Court Panels holding their conferences as and at venues convenient to them is well established and is as stated by the PCA in his answer to the query dated 22/2/2010. Consequently, the fact that the Sokoto Appeal Panel held their conference in Abuja is not suggestive of any impropriety or interference on the part of the Hon. PCA.

3.08.3 Opinion of Colleagues

The PCA stated in his answer to the query, that one of the Justices asked his opinion on the Kaduna Court of Appeal decision on the Sokoto election petition appeal in respect of the 2007 election and that he freely expressed his opinion to him.

There is no doubt in the minds of members of the Committee, that the PCA must have known that the opinion sought from him by a member of the Sokoto Election Appeal Panel must be in relation to the pending Sokoto Governorship election appeal in respect of which the Panel held its Conference in Abuja. On this, his Lordship explained further thus:

To be continued.