(LEGAL) MATTERS ARISING: PROSPECTS OF SILK AT THE BAR By Ademola Adewale

(LEGAL) MATTERS ARISING: PROSPECTS OF SILK AT THE BAR
The new Nigerian Bar Association, NBA President Chief Rotimi Akeredolu SAN in an interview granted to certain media houses shortly after his inauguration wherein he highlighted his vision and programme of action for the 60,000-strong members of the association in the next 2 years raised a very important issue: the prospects of appointing Silks (SAN’s) to sit as Justices in the Appellate Courts of the Court of Appeal and the Supreme Court.
The suggestion from the learned silk and leader of the legal profession in Nigeria coming at a time when the whole system of the administration of justice in Nigeria is coming under public scrutiny and even criticism could not have been better timed.

Common Law Antecedents
The idea of members of the Inner Bar called Queens or Kings Counsel QC/KC depending on whether the Monarch is a Queen or King, in England where our modern legal system originated from, being appointed to the Bench is as old as the common law system. In fact under the English system a career on the Bench is the ultimate for a Barrister and most appointments to the Bench is usually from the rank of Q.C’s or K.C’s. And a look at some of the more distinguished English Judges both in the distant and immediate past were from the ranks of learned silk who earned their place on the Bench on the sheer merit of a distinguished career at the Bar.
The Great English Jurist, Francis Bacon was K.C, Attorney-General and later Lord Chancellor. (He was however disgraced out of office for bribery and corruption.).
* Mr. Quintin Hogg, was Q.C, Attorney-General and later Lord Hailsham of the House of Lords.
* The greatest English Judge of the 20th century Lord Alfred Thomas Denning, Master of the Rolls, the-equivalent of our President of the Court of Appeal was himself a King’s Counsel, (K.C) before he was appointed a Judge of the Queens Bench in 1943 from where he proceeded to have a most distinguished carrier acknowledged all over the world.
* The distinguished Prof. Megarry, Real Property Law author distinguished himself in both the academic and legal practice as a Professor Q.C before being appointed to the Bench.
In the earlier days of the legal profession in Nigeria, the English practices of appointing distinguished lawyers many of them Q.C and later SAN was strictly followed before the practice fell into disuse with time.
* The erudite and prodigious Dr. T.O Elias Q.C who later became the President of the International Court of Justice ICJ, was appointed directly to the Supreme Court as Chief Justice of Nigeria - the first and only of such appointment in the nation’s history.
* Justice Chuba Ikpeazu Q.C was appointed directly from the Bar first to be a Judge of the High Court of then Federal Territory of Lagos and later the Eastern region High Court.
* Late Justice Fred Anyaegbunam Q.C was appointed straight from the Bar to the Former Federal Revenue Court later re-styled Federal High Court where he rose to become one of the longest senior Chief Judge of that court.
* Justice E. Adegboyega Ademola Q.C was appointed directly from the official bar as Director of Public Prosecutions DPP to the High Court of Western Nigeria and later Western State Court of Appeal.
* Late Justice Augustine Nnamani was a distinguished academic with a Doctorate Degree in Law, was also the Federal Attorney-General, and one of the 12 silks of the 1978 set. He was appointed straight from the official Bar as Attorney-General of the Federation as a Justice of the Supreme Court.
A handful of the very old lawyers still alive still vividly recall that even after great lawyers like Chief F.R.A Williams SAN, Chief Kehinde Sofola SAN had taken silk pressure was still constantly mounted on them from official Quarters that they take appointment to come to the Supreme Court in order to enrich that court with their wealth of learning and legal knowledge. And as recent as 1990/91 this columnist recalls that Prince Bola Ajibola SAN, the then Federal Attorney-General was being pressured to take appointment as a Justice of the Supreme court rather than proceed to the ICJ to complete Nigeria’s term on that court which became vacant upon Dr. Elias’ death.
Thus from a strictly historical, the learned NBA President’s suggestion rests on a very strong wicket: it was the practice in the past from which our legal system and indeed the common law and global jurisprudence benefited immensely from.

MODERN TRENDS AT THE BAR AND BENCH
In the last 20 or 80 years for a number of reasons, this well tested practice fell into disuse though not officially abandoned. The reasons for this unfortunate development are somewhat vague and unclear and one can only hazard a “sketchy but not infallible” guess as to why this sound policy of recruitment of Judges from the college of silks was abandoned.
While it has always been the desire of the average Barrister under the common law to cap a distinguished career with elevation to the Inner Bar. Taken the Silk in England, was not the ultimate rather it was the bench but in Nigeria now the ultimate for successful barristers is not to end their careers on the bench.
It is to say the obvious that in Nigeria on the average a Silk is more economical buoyant than a judge even a justice of the Supreme Court. Admittedly even in England, and in the U.S there is a measure of economic sacrifice made by very prosperous lawyers in taking appointments on the Bench. But these older legal systems have in built protection for the welfare of judges. Judges in these societies hold their appointments for life unless they are undone by ill health, sudden demise or scandal. Not so in our dear country where the smallest increase in salaries and improvements in welfare packages for judges comes under intense public scrutiny. Till date quite a number of other professionals in the public service continue to question why judges should retire at 65 or 70 years of age as the case may be or be given certain ‘preferential’ treatment when all other professionals in public service retire compulsory at 60 years. Yet the same persons expect the judiciary to constantly rise to the challenge of doing justice between all manners of men without malice, ill will fear or favour.
A Nigeria Silk has no such limitations as the Nigerian judge: he can continue in practice as long as his health permit, he has no limitations on his charges for litigation where he is presumed to be dean and master of. It is of no concern to any one whether he charges N50 million merely to append his signature to a court process or N250 million to make a personal appearance in court with his team of lawyers.
So the balance of convenience and economy prosperity is heavily in favour of the Learned Silk rather than an equally brilliant colleague who prefers a career on the Bench. In fact under the present arrangement a Silk who takes appointment even on the Supreme Court will be making a very huge sacrifice; having his legal career terminated somewhat mid-stream when a number of his contemporaries might continue in lucrative practice for even three decades more before calling it quits due to age and ill-health. (Judges even die younger in Nigeria than silks). Thus silks and other successful lawyers who routinely attract fat briefs and juicy briefs find it hard to give up their liberty and prosperity for a life in government service where life is more regimented and the earnings considerably smaller. These, I humbly submit are the reasons why the old practice of appointing or even inviting Silk to the Bench slowly but steadily fell out of favour. The amount of sacrifice involved in becoming a judge for the successful average silk became too heavy to bear.
Thus any serious attempt to encourage Silks to take appointments on the Bench must tackle these concerns while at the same time not give the impression that only members of the Inner Bar possess the repository of legal knowledge to deserve a place on the Bench as this will only breed resentment from other qualified lawyers who are not silks. Such a situation can not be in the interest of Nigeria.
The point must however be made that not all lawyers, silk or no, irrespective of brilliance or learning at the law deserve a place on the Bench. Many of them simply do not have the temperament for the job: some are too brash, impatient, brilliant but not objective, to be good judges. Some can just never stop being advocates; they have read all the decisions counsel might ever cite and are not prepared to listen to counsel either explain himself or bring fresh perspectives to the decisions milord has certainly read from page to page, cover to cover several times over. Others simply talk too much and would be better off as Mr. ‘Lecturer’ rather than the honourable judges that they are while for some others their Achilles heel is their larger than life social life which they can not compromise for the straight, narrow and if I may add, lonely life-style of a judge.

RE: Almaroof Ayinde Lateef: The limits of a citizen’s constitutional right to represent himself in court.
Recently, I had the opportunity of seeing the enigmatic non-lawyer Commercial law practitioner in action prosecuting his civil case in court against a legal practitioner for the opposing side. I must say given the quality of the opposition he didn’t do badly. Citizen Almaroof Lateef, it will be recalled was the ‘Blaster’ sent to prison by the Hon. Justice M. Obadina for contempt of court. He was also on record to have written a petition against certain judicial officers for permitting only “LLB, B.L” holders from appearing as counsel in their courts.
My main interest here is not about Mr. Almaroof’s constitutional right to defend himself in person in a criminal trial. Under Section 36(6) (c) of the 1999 Constitution entitles him so. But by virtue of The Legal Practitioners Act and The Supreme Court decision in Okafor V Nweke (2007) 3 S.C (pt ii) 55 that only legal practitioners enrolled at the Supreme Court can file court processes, can a non-lawyer
(a) file court processes and sign same in his personal name
(b) appear in person in civil suits
(c) canvass arguments citing statutory and case law decisions?
Please send all written comments to THE SQUIB Editor-in-Chief.

SECTION 116 OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW- THE TRAVESTY OF JUSTICE By Chief Shola Ojeriakhi

The administration of Criminal Justice Law 2007 was recently introduced to be operated in Lagos State Judiciary by His Lordship Justice Adetula Alabi. The said law has since become operational in most of the courts in Lagos State.

A CLOSER LOOK AT THE UNIQUE JURISPRUDENCE OF ELECTION PETITIONS (Ii) By Ademola Adewale

A CLOSER LOOK AT THE UNIQUE JURISPRUDENCE OF ELECTION PETITIONS By Ademola A. Adewale

Election Petitions are unique judicial proceedings that do not conform to regular civil proceedings they are thus regarded as Sui generis - "(Latin; of its own kind) "or its own kind or class, unique or peculiar". This peculiarity is of course understandable, election petitions being a mix of legality and politics, two usually distinct realms, die one being the exclusive preserve of the law the other a realm from which the law normally stays away because it is impolitic or inexpedient to take jurisdiction. "And because the Courts have neither the experience wisdom, facilities nor responsibility to undertake political matters". A.G. fed VAG Abia State (2001) 7S. C. (pt 1) 32 at 107/108.
Indeed, these political matters are matters that our "Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and ultimately on the vigilance of the people in exercising their political rights". Per Justice Frankfurter - US. Supreme Court m South V. Peters 339 U. S. 276 (1950).
Thus normally it is of no moment to the Courts whether the Peoples Democratic Party POP wins the Presidential Election as opposed to the All Nigerian Peoples Party ANPPP, The Action Congress, the A. C. makes a clean sweep of the House Assembly seats in Lagos State or whether the PDP presents Rotimi Amaechi or Celestine Omeiha in River State or Ugwu instead of Araraume in Imo State as its Governorship candidate.
But in the knowledge that justifiable disputes are bound to arise in otherwise strictly political matters such as whether a candidate was duly returned or whether an election was duly held. Section 140(1) of the Election Act 2006, Whether a candidate for election by a party was validly substituted for Cogent and Verifiable reasons - Section 34(2) of the Electoral Act, whether a candidate was validly returned as the President of the Federal Republic of Nigeria - Section 134 of the Constitution, whether in fact a person was qualified to run for the office of President, Governor, Senate, House of Representatives, State House of Assembly etc. Whether a person was validly elected into both the National Assembly or State House of Assembly, as Governor, whether the term of office of a Governor has ceased and such other questions which may affect the nation's interest in such areas as defence public safety, public order or public morality were vested in die court particularly the Election Tribunals under section 246 and 285 and other relevant Sections of our Constitution and the Electoral Acts.
The above thus lays the necessary legal frame work for the Court to dabble into matters mat are naturally sensitive and volatile with predictable results: a mixed bag of kudos and knocks.
This essay will attempt to examine some of the more contentious aspects of the jurisprudence of Election Petitions.

Duration of Election Petition
This has been a lot of debate not just in recent times but from the 2nd Republic i.e 5979 -1983 when Nigeria first practiced the Presidential system of Government on the desirability of having a fixed period to conclude the hearing of Election Petitions arid other related matters. It is worth noting that the celebrated case of Awolowo V Shagari (1979) 6 - 9 S. C (Reprint) 37 took less than 3 months from hearing of Petitions and the appeal to determine. And both stages of proceedings were concluded before the swearing in of the President. When under that dispensation the legality of a time frame for determining an election Petition came up for the Consideration under sections 129(3) and 140(2) of Electoral Act 1982 which gave a time limit of 30 days to determine Petitions. The Supreme Court was clearly of the view that the setting of a time limit for the determination of an election Petition was unconstitutional. Unongo V. Aku (1983) 14 NSCC 563 @ 567. The Supreme Court held "Any electoral enactment which specified a time constraint on the Court to determine an election Petition ............... is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election seek redress in Court".
However, Political events that have arisen from the 2003 till elections till date have made many scholars and stakeholders to question the wisdom of not having a time-frame within which to conclude the hearing of election Petitions, appeals inclusive.
In Anambra State it took almost 3 years to conclude the election Petition into the Anambra State Gubernatorial Post in April 2003, while Chris Ngige was sworn in on May 29 2003, Peter Obi only succeeded in his Petition and was sworn in as Governor on 17th March 2006.
The Presidential Election petition brought by General Buhari (Rtd) against President Olusegun Obasanjo's election lasted 19 months while the Appeal lasted another 7 months thus leaving about 26 months to conclude.
Mindful of the havoc caused by the inordinate delays the Appeal Court with a view to fast -tracking the process of the election petitions to ensure that petitions are determined timeously to prevent a situation where a person who validly won an election is only able to spend only a fraction of the period of the mandate given to him by the electorate or eats deep into another person mandate. The Court of Appeal issued the Election Tribunal and Court Practice Directions No 1 and 2 of 2007. "E P. D 2007". The major features of E. P. D. 2007 which is fashioned after the Lagos State Civil Procedure Rules 2004 include:
1. The front-loading: attachment - of all Court processes and relevant documents from inception.
2. The elimination of long winded rendition of evidence by scores of witness
3. The elimination of stay of proceedings pending interlocutory appeals.
4. Statutory abridgment of time in the filing of Court processes.
All these drastic measures have not done much to improve the speedy hearing and determination of Election petitions

Abubakar V Yaradua (2008) 1 S. C. (Pt 1) 77
The Election Petitions in several states are yet to be concluded: in Oyo State the Appeal Tribunal has just determined the Election Petition Appeal in September 2008.
The petitions in Osun, Ondo, Edo and Ekiti are still on appeal, while the Presidential Elections Petition is still on appeal at the Supreme Court.

Accelerated Hearing of Petitions
In view of the "Perishable" nature of me various public offices into which elections are held: most constitutional offices from the State House of Assembly to the President have a tenure of 4 years, and the fact the interest of communities (Wards, Local Government Area even Senatorial Zones), States and the whole nation are affected by the verdict of an election petition. Thus in section 148 of the Electoral Act of 2006,- election petitions "shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court". Yet as already pointed this statutory provisions in addition to the recently introduced fast-track procedure has not substantially improved the average time for the determination of Election Petitions. In the circumstances many look back with nostalgia on the Awolowo V Shagari situation where the election petition was disposed off promptly, while others make romantic reference to the Bush V Gore situation in America in the year 2000 when in spite of contentious dispute over electoral votes in some parts of Florida, the U- S. Supreme Court was able to resolve the dispute well before the 21st January 2001 swearing-in date for the U. S. President for an election that took place on the first Tuesday of November 2000.
Thus there are increased calls for a definite timetable to resolve election disputes similar to sections 129(3) and 140 (2) of the 1982 (8) which prescribed a definite time - frame for disposing off Election Petitions but were held to be unconstitutional and a fetter to a citizen's right to fully ventilate his electoral grievance in Unongo V Aku (1983) 14 NSCC. 563.
Attractive as these arguments are they only represent one side of the coin: To start with, comparisons to either the past or other jurisdictions may be more theoretical than practical, in 1979 there were only 19 states and fewer local government to the present 36 states and the Federal Capital Territory and 773 local governments (with the exclusion of Bakassi) it might not be realistic to expect that Election Petitions will be so easily concluded as they were between) 1979 - 1983.
Even the reference to the U. S. may not be appropriate, the 2000 Electoral dispute was a much localized one: only the State of Florida out of a total of 50 constituent
units and then only to a number of Counties at best the size of a Senatorial District, even then it took several weeks for the U. S Supreme Court to resolve the dispute. Till date the Bush V Gore Verdict just like the earlier Nigerian Supreme Court decision of Awolowo V Shagari has not gone down well with a cross section of the American populace just like the Nigerian decision remains permanently contentious.
On the other hand the Constitutional and Statutory preference given to Election Petitions over other matters is not always "defensible", a litigant whose constitutional right perhaps to liberty is being threatened is not likely to be impressed that his application to enforce his fundamental right or his application to bail cannot be taken because the Court is fully engaged for the time being with election petitions neither can the man whose buildings is being threatened with demolition nor the man who has been ordered to pay N10 million but cannot afford N1 million be happy that his motion for interlocutory injunction or stay of execution respectively cannot be accommodated by the Court because the judge is away on election petition matters. In fact for this class of citizens, who are in the majority, the creed that the Court is the last hope of the common man sounds very hollow and unconvincing. It is very tempting for these citizens to walk away believing that justice is actually for the "big man" - the Gubernatorial, House of Assembly, Senate and House of Representatives candidate and not himself the “common man”

Persons elected being sworn in while petition is pending or remaining in office pending determination of the appeal.
One of me most controversial aspects of Election Petition jurisprudence is the transitional provisions that allows a person declared the victorious candidate to be sworn-in pending the hearing and determination of the election petition against him and the other allowing a person whose electoral victory has been a declared a nullity to remain in office while he prosecutes the appeal against the nullification of his election. This has happened in several places in Lagos State, in Adamawa State, in Ondo and Edo States and also in respect of the Senate President's seat before the Appeal Tribunal confirmed the senate President's electoral victory.
Many wonder why a person whose electoral mandate is still subject to judicial challenge should either assume office or continue in office and in fact once in office use public funds to prosecute or defend has questionable electoral mandate and in fact utilize a dubious or fraudulent electoral mandate to govern the people. The case of Dr. Chris Ngige in Anambra State who continued in office as Governor for almost 3 years before his fraudulent electoral mandate was nullified is cited as a classic illustration of this aberration.
The legality of this "transitional or transient provisions designed to take care of a contingency" which will definitely phase out or fade away on the completion of the election petition on appeal "was tested in Buhari V. Obasanjo (2003) 11 S. C. 74 Where the Applicant by a motion for Interlocutory injection sought to restrain the 1st Respondent from being sworn in as President of the Federal Republic of Nigeria pending the determination of the Election Petition against the 1st Respondent had argued that based on certain Obiter dicta in the case of Obih V. Mbakwe (1984) 1 SCNLR 192 that where an election is challenged in a Court of
law the person declared the winner cannot take office until completion of the hearing and determination of the election Petition challenging such an election.
The Supreme Court had roundly rejected such an argument holding that the view quoted from the Obih V. Mbakwe about the inability of the declared winner being able to take office until the completion of the election petition as mere Obiter and not the Ratio of the Obih V. Mbakwe case. Most importantly, the constitution should not be construed to give meaning that will create an embarrassing anomaly that can result in the vacuum of any office or cause serious crisis in the polity".
Thus Section 138 of the Electoral Act 2002 which is the equivalent of Section 149 of me Electoral Act 2006 was held to be legal and constitutional.
In view of this subsisting decision of the Supreme Court in Buhari V. Obasanjo (2003) U.S. C. 74, are me complaints against sitting Presidents, governors or law makers whose electoral victories are under legal challenge valid?

A CLOSER LOOK AT THE UNIQUE JURISPRUDENCE OF ELECTION PETITIONS (I) By Ademola Adewale

Election Petitions are unique judicial proceedings that do not conform to regular civil proceedings they are thus regarded as Sui generis - "(Latin; of its own kind) "or its own kind or class, unique or peculiar". This peculiarity is of course understandable, election petitions being a mix of legality and politics, two usually distinct realms, die one being the exclusive preserve of the law the other a realm from which the law normally stays away because it is impolitic or inexpedient to take jurisdiction. "And because the Courts have neither the experience wisdom, facilities nor responsibility to undertake political matters". A.G. fed VAG Abia State (2001) 7S. C. (pt 1) 32 at 107/108.
Indeed, these political matters are matters that our "Constitution has left the performance of many duties in our governmental scheme to depend on the fidelity of the executive and legislative action, and ultimately on the vigilance of the people in exercising their political rights". Per Justice Frankfurter - US. Supreme Court m South V. Peters 339 U. S. 276 (1950).
Thus normally it is of no moment to the Courts whether the Peoples Democratic Party POP wins the Presidential Election as opposed to the All Nigerian Peoples Party ANPPP, The Action Congress, the A. C. makes a clean sweep of the House Assembly seats in Lagos State or whether the PDP presents Rotimi Amaechi or Celestine Omeiha in River State or Ugwu instead of Araraume in Imo State as its Governorship candidate.
But in the knowledge that justifiable disputes are bound to arise in otherwise strictly political matters such as whether a candidate was duly returned or whether an election was duly held. Section 140(1) of the Election Act 2006, Whether a candidate for election by a party was validly substituted for Cogent and Verifiable reasons - Section 34(2) of the Electoral Act, whether a candidate was validly returned as the President of the Federal Republic of Nigeria - Section 134 of the Constitution, whether in fact a person was qualified to run for the office of President, Governor, Senate, House of Representatives, State House of Assembly etc. Whether a person was validly elected into both the National Assembly or State House of Assembly, as Governor, whether the term of office of a Governor has ceased and such other questions which may affect the nation's interest in such areas as defence public safety, public order or public morality were vested in die court particularly the Election Tribunals under section 246 and 285 and other relevant Sections of our Constitution and the Electoral Acts.
The above thus lays the necessary legal frame work for the Court to dabble into matters mat are naturally sensitive and volatile with predictable results: a mixed bag of kudos and knocks.
This essay will attempt to examine some of the more contentious aspects of the jurisprudence of Election Petitions.

Duration of Election Petition
This has been a lot of debate not just in recent times but from the 2nd Republic i.e 5979 -1983 when Nigeria first practiced the Presidential system of Government on the desirability of having a fixed period to conclude the hearing of Election Petitions arid other related matters. It is worth noting that the celebrated case of Awolowo V Shagari (1979) 6 - 9 S. C (Reprint) 37 took less than 3 months from hearing of Petitions and the appeal to determine. And both stages of proceedings were concluded before the swearing in of the President. When under that dispensation the legality of a time frame for determining an election Petition came up for the Consideration under sections 129(3) and 140(2) of Electoral Act 1982 which gave a time limit of 30 days to determine Petitions. The Supreme Court was clearly of the view that the setting of a time limit for the determination of an election Petition was unconstitutional. Unongo V. Aku (1983) 14 NSCC 563 @ 567. The Supreme Court held "Any electoral enactment which specified a time constraint on the Court to determine an election Petition ............... is to say the least very absurd and indeed defeats the intention of the Constitution and the Electoral Act itself, which is to enable an aggrieved candidate to an election seek redress in Court".
However, Political events that have arisen from the 2003 till elections till date have made many scholars and stakeholders to question the wisdom of not having a time-frame within which to conclude the hearing of election Petitions, appeals inclusive.
In Anambra State it took almost 3 years to conclude the election Petition into the Anambra State Gubernatorial Post in April 2003, while Chris Ngige was sworn in on May 29 2003, Peter Obi only succeeded in his Petition and was sworn in as Governor on 17th March 2006.
The Presidential Election petition brought by General Buhari (Rtd) against President Olusegun Obasanjo's election lasted 19 months while the Appeal lasted another 7 months thus leaving about 26 months to conclude.
Mindful of the havoc caused by the inordinate delays the Appeal Court with a view to fast -tracking the process of the election petitions to ensure that petitions are determined timeously to prevent a situation where a person who validly won an election is only able to spend only a fraction of the period of the mandate given to him by the electorate or eats deep into another person mandate. The Court of Appeal issued the Election Tribunal and Court Practice Directions No 1 and 2 of 2007. "E P. D 2007". The major features of E. P. D. 2007 which is fashioned after the Lagos State Civil Procedure Rules 2004 include:
1. The front-loading: attachment - of all Court processes and relevant documents from inception.
2. The elimination of long winded rendition of evidence by scores of witness
3. The elimination of stay of proceedings pending interlocutory appeals.
4. Statutory abridgment of time in the filing of Court processes.
All these drastic measures have not done much to improve the speedy hearing and determination of Election petitions

Abubakar V Yaradua (2008) 1 S. C. (Pt 1) 77
The Election Petitions in several states are yet to be concluded: in Oyo State the Appeal Tribunal has just determined the Election Petition Appeal in September 2008.
The petitions in Osun, Ondo, Edo and Ekiti are still on appeal, while the Presidential Elections Petition is still on appeal at the Supreme Court.

Accelerated Hearing of Petitions
In view of the "Perishable" nature of me various public offices into which elections are held: most constitutional offices from the State House of Assembly to the President have a tenure of 4 years, and the fact the interest of communities (Wards, Local Government Area even Senatorial Zones), States and the whole nation are affected by the verdict of an election petition. Thus in section 148 of the Electoral Act of 2006,- election petitions "shall be given accelerated hearing and shall have precedence over all other cases or matters before the Tribunal or Court". Yet as already pointed this statutory provisions in addition to the recently introduced fast-track procedure has not substantially improved the average time for the determination of Election Petitions. In the circumstances many look back with nostalgia on the Awolowo V Shagari situation where the election petition was disposed off promptly, while others make romantic reference to the Bush V Gore situation in America in the year 2000 when in spite of contentious dispute over electoral votes in some parts of Florida, the U- S. Supreme Court was able to resolve the dispute well before the 21st January 2001 swearing-in date for the U. S. President for an election that took place on the first Tuesday of November 2000.
Thus there are increased calls for a definite timetable to resolve election disputes similar to sections 129(3) and 140 (2) of the 1982 (8) which prescribed a definite time - frame for disposing off Election Petitions but were held to be unconstitutional and a fetter to a citizen's right to fully ventilate his electoral grievance in Unongo V Aku (1983) 14 NSCC. 563.
Attractive as these arguments are they only represent one side of the coin: To start with, comparisons to either the past or other jurisdictions may be more theoretical than practical, in 1979 there were only 19 states and fewer local government to the present 36 states and the Federal Capital Territory and 773 local governments (with the exclusion of Bakassi) it might not be realistic to expect that Election Petitions will be so easily concluded as they were between) 1979 - 1983.
Even the reference to the U. S. may not be appropriate, the 2000 Electoral dispute was a much localized one: only the State of Florida out of a total of 50 constituent
units and then only to a number of Counties at best the size of a Senatorial District, even then it took several weeks for the U. S Supreme Court to resolve the dispute. Till date the Bush V Gore Verdict just like the earlier Nigerian Supreme Court decision of Awolowo V Shagari has not gone down well with a cross section of the American populace just like the Nigerian decision remains permanently contentious.
On the other hand the Constitutional and Statutory preference given to Election Petitions over other matters is not always "defensible", a litigant whose constitutional right perhaps to liberty is being threatened is not likely to be impressed that his application to enforce his fundamental right or his application to bail cannot be taken because the Court is fully engaged for the time being with election petitions neither can the man whose buildings is being threatened with demolition nor the man who has been ordered to pay N10 million but cannot afford N1 million be happy that his motion for interlocutory injunction or stay of execution respectively cannot be accommodated by the Court because the judge is away on election petition matters. In fact for this class of citizens, who are in the majority, the creed that the Court is the last hope of the common man sounds very hollow and unconvincing. It is very tempting for these citizens to walk away believing that justice is actually for the "big man" - the Gubernatorial, House of Assembly, Senate and House of Representatives candidate and not himself the “common man”

Persons elected being sworn in while petition is pending or remaining in office pending determination of the appeal.
One of me most controversial aspects of Election Petition jurisprudence is the transitional provisions that allows a person declared the victorious candidate to be sworn-in pending the hearing and determination of the election petition against him and the other allowing a person whose electoral victory has been a declared a nullity to remain in office while he prosecutes the appeal against the nullification of his election. This has happened in several places in Lagos State, in Adamawa State, in Ondo and Edo States and also in respect of the Senate President's seat before the Appeal Tribunal confirmed the senate President's electoral victory.
Many wonder why a person whose electoral mandate is still subject to judicial challenge should either assume office or continue in office and in fact once in office use public funds to prosecute or defend has questionable electoral mandate and in fact utilize a dubious or fraudulent electoral mandate to govern the people. The case of Dr. Chris Ngige in Anambra State who continued in office as Governor for almost 3 years before his fraudulent electoral mandate was nullified is cited as a classic illustration of this aberration.
The legality of this "transitional or transient provisions designed to take care of a contingency" which will definitely phase out or fade away on the completion of the election petition on appeal "was tested in Buhari V. Obasanjo (2003) 11 S. C. 74 Where the Applicant by a motion for Interlocutory injection sought to restrain the 1st Respondent from being sworn in as President of the Federal Republic of Nigeria pending the determination of the Election Petition against the 1st Respondent had argued that based on certain Obiter dicta in the case of Obih V. Mbakwe (1984) 1 SCNLR 192 that where an election is challenged in a Court of
law the person declared the winner cannot take office until completion of the hearing and determination of the election Petition challenging such an election.
The Supreme Court had roundly rejected such an argument holding that the view quoted from the Obih V. Mbakwe about the inability of the declared winner being able to take office until the completion of the election petition as mere Obiter and not the Ratio of the Obih V. Mbakwe case. Most importantly, the constitution should not be construed to give meaning that will create an embarrassing anomaly that can result in the vacuum of any office or cause serious crisis in the polity".
Thus Section 138 of the Electoral Act 2002 which is the equivalent of Section 149 of me Electoral Act 2006 was held to be legal and constitutional.
In view of this subsisting decision of the Supreme Court in Buhari V. Obasanjo (2003) U.S. C. 74, are me complaints against sitting Presidents, governors or law makers whose electoral victories are under legal challenge valid?

IN THE MATTER OF MALLAM BELLO MASABA: THE AWARD WINNING POLYGAMIST By Ademola Adewale

Mallam Bello Masaba is an usual man; a modern day King Solomon of the 1,000 women fame. At 86 years of age married to 86 wives and 120 children Masaba is still going strong, a feat which ought to earn him a well deserved place in the Guinness Book of World Records except that the ‘world’ in that encyclopaedia of achievements means Europe, America, Asia Latin America and Australasia, everywhere else except Africa from which nothing spectacular or remarkable is expected. However this article is not about the Western media or its prejudiced even racist disposition. Rather our focus here is Mallam Masaba’s record-breaking polygamy and the paradoxical trouble it has now brought upon the hapless old man.
Yes, Mallam Bello Masaba for several years lived like a king in his Bidda homestead marrying and taking in marrying, begetting and replenishing the earth for several years as a respected Islamic Cleric and community leader without attracting any adverse or negative attention to himself. But that was before he (ill advisedly?) attracted media attention to his unusual life-style. Then the same traditional and religious authorities with whom he had wined and dined all these years suddenly remembered that he had married far in excess of the legally prescribed number of wives. Thus trouble came aplenty like a flood; the local traditional ruler ordered him to leave town indeed the whole of the emirate unless he could within 48 hours set another world record of divorcing 82 of his wives in the same period. The jamat (The Islamic Faithful - Brethren) promptly denounced him as an infidel and his act of sacrilege - marrying 86 wives instead of a maximum of 4 wives deserving of a fatwa a sentence of death that can be executed by any of the faithfuls. Being unable to create a new world record of 82 divorces in 48 hours, he was promptly arraigned before the Upper Sharia Court Minna for amongst other crimes “contracting unlawful marriage to 86 wives.”
In the face of this moral threat not only to his unusual lifestyle but his very life and existence, the octogenarian polygamist rallied; he promptly approached the Federal High Court where Justice G.O Kolawole granted him leave to enforce his fundamental human right. But all that did not deter the Upper Area Court from proceeding in defiance of constitutional judicial hierarchy to detain Mallam Masaba for “incendiary contempt of religious law by contracting unlawful marriage to 86 wives” which we reliably informed carries a death penalty under the Niger State Sharia Penal Code.
This unfortunate case illustrates some of the contradictions which some of the self-serving actions of our politicians cum public officers can bring about.
When Sani Ahmed Yerima former Governor of Zamfara State now a Senator of the Federal Republic of Nigeria thought that by introducing political sharia he could clip the wings of President Olusegun Obasanjo and the seemingly growing powers of Southern Nigeria in the affairs of Nigeria, little could he have realised that the political sharia he spear headed in Northern Nigeria is like a mad-dog which after chasing his away the perceived enemies will turn around to devour the children of the owner. Or isn’t it interesting that it is not a non-native unbeliever that is caught in the web of alleged sharia violation but a respected native and local cleric?
From the strict legal perspectives this matter brings to the fore once again, the constitutionality or otherwise of the Sharia Penal Code introduced into many parts of Northern Nigeria in the heady days of political sharia by former Governor Sani and fellow political travelers.
While no Nigeria lawyer or student of the Nigeria Constitution can challenge the constitutionality of the sharia legal system particularly in civil proceeding involving questions of Islamic personal law “section 262 of the Nigeria Constitution serious problems are bound to arise in respect of laws made by States in respect of Criminal Jurisdiction of the Sharia which not only conflict with federal laws but the express provisions of the constitution. A legitimate question at this point is whether the Criminal Jurisdiction of the Sharia Court in a State like Niger State can override the penal code (a federal law) as applicable in Niger State. Yet another relevant question is if there is no offence in the Penal Code for marrying more than 4 wives, a state sharia code prescribing punishing such an act can be valid. And most importantly under the principle of legislative supremacy of Federal laws is whether a state law prescribing death penalty for a state (sharia) offence can override a federal (penal) code in which such an offence is neither known to law nor at all punishable?”
Finally, in view of the Constitutional Supremacy of the Federal High Court to the Upper Area Court, whether the upper Area court in view of he leave already granted Mallam Bello Masaba by Justice G.O Kolawole of the Federal High Court, the Minna Upper Area Court can continue with the trial of Mallam Masaba?
The new few months when all the above knotty legal puzzles will be untied by the appropriate courts will give a clearer picture of the constitutionality of the peculiar brand of sharia introduced into Northern Nigeria by former Governor Sani Yerima. The several case law decisions on the matter will be up for consideration.

A.G Ogun State V Aderuagba (1983) NWLR (Pt 3) 395.
A.G Bendel V A.G.F (1982) 3 NCLRI
A.G Ondo State V A.G.F (2002) 6 S.C. (pt 1)

However, one aspect of the case requires comment is the fatwa supposedly passed on Mallam Masaba by the Jamat. If the recent decisions of the Supreme Court are anything to go bye, the pronouncement of death sentence under Islamic law is not for private individuals but a matter left in persons skilled in Islamic jurisprudence. In Kaza V State. The appellant and 5 others had killed the deceased for blasphemy against the Holy Prophet (S.A.W). When the deceased was to be killed, one of the accused persons had read a portion of the Quran that allegedly sanctioned the killing of any one who insulted the Holy Prophet. The accused persons thus felt justified to kill the blasphemer. At their trial the accused person and other pleaded the act of blasphemy of the deceased as the basis of the defence of provocation for killing the deceased. The Supreme Court would have none of this puerile and ignorant defence.
“Per Muhammed JSC” Islamic law has not left the killing open in the hands of private individuals. The offence alleged has to be established through evidence before a court of law. The court itself will have to implore the professional dexterity in treating the case by allowing fair hearing and excluding all the inadmissible evidence or those persons who may fall within the exemption clause such as an infant, imbecile or those who suffer mental delusion. Thus, the killing is controlled and sanctioned by the authorities.
Abdul Qadar Oudah in his Criminal Law of Islam Vol. 111 (Improved edition) 1999 stated that if any of the crimes involving HUDDUD (fixed punishment) QISAS (Retaliation) and TA’ AZIR (penal/exemplary punishments) is imputed to a person he will be prosecuted against in a court of law. If the charge against him is established, sentence will accordingly be passed keeping in view the prescribed punishment. If she charge cannot be established, the accused will be acquitted. If the sentence is passed the ruler or competent authority will be responsible for its execution in respect of offences hudood and panel punishments.
His lordship went on to say that “The law will, thus, have set a dangerous precedence if individuals were authorised to take the law into their hands as the appellant and others did in the case. Sharia guarantees and values the sanctity and dignity of human life. That is why it outlaws unlawful killing of human life.

The Quran has several verses in various chapters where it outlaws such nefarious acts. For instance it provides in chapter 6 (Surat – An ‘ Am) verse 161 as follows:-
“And do not kill the souls which Allah has forbidden (to be killed) except by legal right.”

The Prophet (SAW) is reported to have said that the first action to be judged on the Day of Judgment is the spilling of blood.
(See Bulugh Al-Maram Min Adi IIatil Akham by Asqalani page 244. In another Hadith the Prophet is reported to have said that three things have been made illegal to a Muslim:
(i) to spill the blood of another or deprive him of his life
(ii) to deprive him of his property and
(iii) to deprive him of his honour or integrity
(See Forty Traditions of Iman Annewawi) Kaza V State (2008) 1-2 S.C (151 at 226/227.
See also the Sisters cases of Shalla V State (2007) 7010 S.C 107 at 168-170
Yaro V State (2007) 7-10 S.C 77

Which all involve the trial of the 6 accused persons who took part in the extra-judicial killing of Abdullahi Alh. Umaru allegedly for blasphemy against Holy Prophet.
The above legal exposition were quoted verbatim from the judgement of the Supreme Court which remains the final authority on not only on common law but Islamic jurisprudence in Nigeria.
Thus the Jamat are advised to be guided by relevant tenets and jurisprudence of their religion as opposed to ignorant even if popular and politically correct views of what is or is not a violation of Sharia in handling the case of Mallam Bello Masaba the octogenarian polygamist.
On a lighter note, perhaps Baba Masaba ought to return to the South-West where he married many of his wives and will certainly not offend any of the laws.
After all the late business Mogul Cum politician Chief MKO Abiola himself an highly respected Muslim and vice-president of the Supreme Council for Islamic in Nigeria married many wives, although not as many as 86 and had no problems based on his polygamist life-style.

MUCH ADO ABOUT THE PRESIDENT'S HEALTH By Ademola Adewale

For the past several weeks, the state of health of the nation's number one citizen, the President and Commander in chief of the nation's armed forces has been a matter of intense public debate and justifiably so.

As the nation’s first citizen is maintained in office at public expense, his personality, actions (and in actions), affairs including his state of health are veritable items of public scrutiny and comments; though this column will not go so far as to argue like some commentators are apt to do that as a public officer he has lost any claim to privacy. But there can be no denying the fact that as the nation’s president he is above all things – number one public property, so concerns about his health is not only legitimate but constitutional.
In the case of President Umaru Yar Adua what has tended to raise perhaps undue interest in his state of health is the general knowledge that Mr. President has peculiar health challenges: at his introduction to the nation during the campaign for the April 28, 2007 President elections, the would be president had taken seriously ill and had to be flown abroad for medical treatment. Speculations had been rife in the aftermath of his treatment abroad that the worst had befallen the then Presidential hopeful. It had taken the melodramatic Obasanjo/Yar Adua widely broadcast monologue “Umoru, Umoru, are you dead? I see Umoru, he is laughing ke ke ke” to re-assure the anxious nation that all we was well with Obasanjo’s ‘anointed’ successor. Even after the hurly-burly of the flawed April 2007 election, there had been one or two instances that troubled the health of our beloved President only that this time around there were no theatricals to re-assure worried nation. A few weeks ago, when Mr. President who reportedly undertook the lesser hadj-Umra for two weeks neither returned on schedule nor undertook a much planned and advertised trip to the land of football, samba and cocoa-Brazil, there were many speculations about the President’s well being, which speculations were worsened by the shroud of silence and secrecy surrounding the exact state of the President health from official quarters.
In defence of the President and his supporters it must be said a substantial amount of the concerns about the President’s health are neither genuine nor charitable but inspired by destructive partisanship, mischief and malice.
The ‘concerns’ in this category will include the utterly irresponsible and seditious even treasonable call for an Interim Government – a clearly unconstitutional arrangement, a mere step away from a full blown military government. It is in fact distressful to know that any Nigerian in his right mind will call for the return of an illegitimate system of government roundly condemned by a larger majority of Nigerians 15 years ago even before Justice D. Akinsanya, then of the Lagos High Court declared the same illegal and unconstitutional. That some of our political elite are now clamoring for a return of illegality shows how desperate our politics and politicians have become. Thus, when viewed from the prism of desperado politicians, the cult of secrecy mounted by officialdom in the matter of Mr. President might appear to be justified.
The major problem with this rationalization however is that it offends the express words of the constitution – the supreme law of the land that – “Sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its powers and authority”. Therefore there can be no justification from keeping from the Nigerian people fair and accurate information about the true state of health of the President. But since the whole nation is left to speculate on the true state of Mr. President’s health judging from the ‘face-saving’ busy schedule maintained by the President in recent times it might be safe to assume the exact state of Mr. President’s health is somewhere in between the perfect state of health being touted in official quarters and the dying man trumpeted among opposition politicians.
In any case until the provisions of Section 44 of the Constitution are set in motion, the President must be presumed to be sufficiently fit in body and mind to continue to discharge the duties of the office of the President, Chief Executive and Commander-in-Chief of the Armed Forces of Nigeria.
The relevant provisions are as follows: 144 – (1) The President or Vice-President shall cease to hold office.
If (a) by a resolution by two third majority of all the member of the executive council of the Federation it is declared that the President or Vice-President is incapable of discharging the functions of his office and (b) the declaration is verified, after such medical examination as may be necessary, by a medical panel established under subsection (4) of this section in its report to President of the Senate and the Speaker of the House of Representatives,
(2) where the medical panel certifies in the report that in its opinion the (President or Vice-President is suffering from such infirmity of body or mind as render him permanently incapable of discharging the functions of his office, a notice thereof signed by the President of the Senate and the Speaker of the House of Representative shall be published in the official Gazette of the Government of the Federation
(3) The President or Vice- President shall cease to hold office as from the date of publication of the notice of the medical report pursuant to subsection (2) of this section.
(4) The medical panel to which this section relates shall be appointed by the President of the Senate and shall comprise five medical practitioners in Nigeria-
(a) One of whom shall be the personal physician of the holder of the office concerned and
(b) four other medical practitioners who have, in the opinion of the President of the Senate, attained a high degree of eminence in the field of medicine relative to the nature of the examination to be conducted in accordance with the foregoing provision.”
Outside of the terminal issue of death these Constitutional Provisions remain the only legal way by which Mr. President can cease to hold office on medical grounds.
One last word on this delicate issue of health and death; we must all resist the urge to play God with any one’s health for the simple reason that both life ad death are not in our hands. History is replete with men (including women) with supposedly terminal ailments who soldiered on for several years after while otherwise healthy men were cut shorts in their prime.
Talking about leaders with health challenges Franklin Roosevelt readily comes to mind. This was a man who fought the second world war from his wheel chair and led the Allied forces to defeat Adolph Hitler and his formidable German War machine. There are also examples like the American Senator Hubert Humphrey who was diagonised for terminal cancer at the age of 36 years and given only 9 months to live. Yet he was to have a very distinguished and long service in the U.S Senate dying at the ripe age of 88 years. Yet another example is the former racist Governor of Old Alabama who in the dark age of racism in the U.S said defiantly said he would rather sit with dogs at his table then dine with niggers (offensive name for blacks). Yet after he was shot and paralysed from waist down, he became changed in his racist ways and started promoting causes that helped the Blackman’s cause and outlived many of his contemporaries. The “Greatest Boxer” Mohammed Ali continues to battle his Parkinson disease while many younger and healthier athletes have since passed on. Only the Almighty God gives and takes life at his unchallengeable discretion.
The closure of Channels Television
One very said aspect of Mr. President’s health saga is the closure of Channels Television over an alleged erroneous broadcast by the said TV station of the speculated resignation by the President from office on health grounds: This episode shows beyond any shadow of doubt that the much trumpeted rule of law mantra of the Yar’Adua administration is not only a ruse but a mere political slogan. That an administration that makes pretence to bring an apostle of the rule of law will resort to Gestapo – style tactics of closing down a democratic dispensation shows how much military mentality the Yar Adua administration possesses. It is all well enough that Nigerians from all sides of the political divide have denounced this military era act of unconstitutionalism. Yet the aggrieved channels TV ought to promptly take appropriate steps to redress this violent infraction of its fundamental human right taking a cure from the celebrated case of Ministry of Internal Affair V Shugaba (1982) 2 NCLR 915. The government appears unrepentant justifying its illegality on vague grounds of national and security’. In this act of constitutional defiance it has as willing collaborators the Nigerian Broadcasting Commission NBC. It will be interesting to see whether these claims of national interest and security will stand up to constitutional security, if and when Channels Television decides to ventilate his grievance in court.
At another level, the closure of Channels Television may yet prove politically suicidal for the Yar’Adua government which is still enmeshed in a crisis of legitimacy being product of a manifestly flawed electoral process, that is still subject to judicial scrutiny before the Highest Court in the land.
The bedrock of the modest credibility it enjoys is simply the longsuffering benevolence of the Nigerian people to accept the existing the legal order subject to judicial review rather than give place to anarchy and chaos that will certainly arise if all the potentially valid claims to the presidency are mutually accommodated. A good reason for the Yar’Adua government to have continued to tread softly in the political space instead of riding rough-shod like a bully through the highly slippery public space with grave danger of a destructive fall. The government is well advised not to behave like the proverbial dirty cook in local folk lore who not appreciating the magnanimity shown him in patronizing his watery cuisine resorts to dishing out miserly portions to patrons. Anroju je e ko obun, obun tun pon eko re kere.
Also odious is the preferential treatment meted out to the News Agency of Nigeria NAN in this unfortunate episode. This yet a tell tale carry over of military rule when Government Agencies and Public could do no wrong. Assuming, for the purposes of argument that Channels Television was wrong in broadcasting the offensive material is its source the NAN not more liable or guiltier? But in a manner typical of the untouchable public officer of the military era NAN has been left undisturbed while the hapless channels TV is now the scape goat. By way of a small but relevant digression, it must be said this double-standard cannot but persist, when even the courts – the famed last hope of the common man – continues to uphold pre-action notices which allow public agencies or public officer to maneuver in the face of clear cut liabilities instead of striking them down as done by the venerable Justice Kayode Eso J.S.C in Alhaji Teliat Bakare V AG Oyo State (1990) NWLR (Pt 152) when the erudite jurist struck down as unconstitutional the requirement of the Attorney-General’s fiat before an action could been instituted against the government of a State or federation. It is submitted that it is only such judicial activism on the parts of the court that can demystify the image of the untouchable public officer or agency.
Finally, this ‘epistle’ may remain at the end of the day a mere academic exercise, if the Channels Television adopt the usual Nigerian solution, already there is the talk of the closed media house resorting to “an amicable settlement” of a brazen violation of its fundamental and constitutional right of freedom of information. Yet someone will tell me the next minute why the freedom of information FOL Act must be passed at the earliest opportunity.