THE COURT THE EYES OF THE STORM (1)

These are trying times for the courts the much acclaimed last hope of the common man. First was a most embarrassing face off between two of the nation’s most highly placed jurist, the Chief Justice of Nigeria, Justice A. Katsina-Alu CJN and the president of the Court of Appeal PCA over the elevation or otherwise of the PCA.

A dispute as to the propriety or otherwise of elevation a serving PCA to the Supreme Court soon developed a life of its own with the PCA not only rejecting the CREEK GIFT of the elevation but asserting that he was being ousted by the CJN from the Court of Appeal for the CJN’s STOOGES AND CRONIES. So certain justices of the Court of Appeal and STOOGES AND CRONIES OF THE CJN?

That is of course hardly surprising now that we know thanks to the PCA that 50 OUT OF 60 JUSTICE of the Court of Appeal cannot be TRUSTED with election cases. Particulars have not been supplied till date of this untrustworthiness? Is it that their lordships are corrupt or that they cannot be trusted to arrive at pre-determined decisions? This is a very serious allegation about the vast majority of justices of the nation’s second highest court!!!

However, most serious of all is the deposition on Oath that the CJN asked the PCA to compromise the Sokoto state gubernatorial election Tribunal. This is one allegation that must be investigated without prejudice to the present moves to make peace between the too warring jurists. Section 127 of our most maligned but still operative criminal code still makes it an offence for any one to compound a felony and we know the leading lights of our profession will not want to be party to any form of criminality. But beyond the issue of crass legalism is the integrity of our whole system of administration of justice whose continued claim to the citizen’s respect relies heavily on the truth or otherwise of this most damaging allegation against the nation’s number one judex by no less a personality than the PCA head of the nation’s second highest court. So there is no end in sight for this matter, re-conciliation or not.

TENURE ELONGATION

While the nation was still grapping with this most disturbing crisis in the nation’s judiciary yet another controversy emerged from the court again, this time in the form of a court decision which has the effect of elongating the tenure of governors whose mandate had earlier been nullified by election tribunals but who won re-run elections and as the popular view goes took a second oath of office. The Governors who specifically sought this order which Justice Adamu Bello of the Fedral High Court sitting in Abuja granted were Gov. Ibrahim Idris of Kogi, Gov. Murtala Nyako of Adamawa, Gov. Trimpreye Sylva of Bayelsa and Gov. Wammakko of Sokoto State.

It is instructive to note that all these governors are members of the nation’s ruling party, the Peoples Democratic Party, (PDP). This decision coming literally on the eve of the general elections is generating great uproar in the nation and practically every segment of society is affected by this decision and is either up in arms against the decision or is saluting the courage of the judge and praising the ruling as a victory for the rule of law. To the nation’s electoral body, the Independent National Electoral Commission (INEC) that has spent several billions of Naira to prepare for elections in about 30 or 31 states of the Federation, it is a most confusing judgement that it has vowed to appeal. To the political opponents of the said governors even within the same party, the judgement is bad to the extent that it scuttles their political ambition. For the opposition, this is yet another example of how the judiciary can be used to frustrate the course of democracy. Already there are insinuations of corruption against the judge. But as far as the PDP is concerned, a Daniel has finally come to judgment. For a long time judgement after judgment has always tended to favour the opposition now there is a decision benefiting the ruling party and the opposition is raging. Is rule of law only for the opposition? There is even some insinuations in recent times that some of the landmark decisions of the court have been influenced by considerations other those of justice and equity.

All of the above of course have no place in a strict legal discourse. Now to go back to the tenure elongation decision. In a consolidated suit brought by governors:- Ibrahim Idris of Kogi State, Muritala Nyako of Adamawa State, Liyel Imoke of Cross River State, Timpreye Sylva of Bayelsa State and Wammakko of Sokoto State, whose elections had been nullified of one point or the other by the election tribunal but had won the re-run elections in their states whereupon they took a second Oath of office had argued that the nullification of elections meant that all that transpired under their first Oaths of office was a nullity and that their terms of office started after their second Oath of office and that their 4 year term of office commenced from the second Oath of office.

They had argued that their cases fail under the situation in the Peter Obi’s case and the new amendment of Electoral Act and the constitution which had limited a governor’s tenure of 4 years to the first swearing irrespective of later nullification and re-run did not apply to them since the amendment could not apply retrospectively to their tenure having only been recently passed after they had won their re-runs and took a second Oath of Office.

In a judgement which remains shocking to a cross-section of the Nigeria society particularly lawyers. Justice Adamu Bello of the Federal High Court Abuja had been persuaded by these ingenious arguments and had granted these governors a 4 year tenure starting from their second Oath of Office, declaring the first swearing a nullity since it was nullified by the tribunal after all nothing can be built and be expected to stand. It must collapse. His lordship also held that the new Amendment did not apply to these governors as it could not apply retrospectively in accordance, with the trite presumption of law that a law could not apply retrospectively. The result of this decision is that there will be no gubernatorial elections in Sokoto, Adamawa, Cross River, Bayelsa and Kogi States.

The decision understandably has generated a lot of controversy, with INEC vowing to appeal because its election timetable has been thrown into chaos, others particularly the opposition whose political ambition has been truncated have also vowed to fight the ruling on appeal. Yet some have taken the political path of least resistance accusing the judge of partisanship, even corruption.

From a strictly legal view, the judgement might in fact be wrong as this columnist in fact believes but until the contrary in proved, is not suggestive of foul play or corruption. The point must in fact be made that a situation where unfavourable court decisions are attributed to extraneous considerations other than of judicial efforts leave much to be desired and portends great danger to the polity. As a time will come when Nigerians will begin to pick and choose what decisions to obey which is contrary to the foundations of our jurisprudence – all court decision are valid until set aside and must be obeyed whether favourable and convenient or otherwise.

The point must also made that it must be conceded that Justice Bello as a court of first instance has the right (you might even call it a constitutional right) to be wrong. That is why there is the appellate system to challenge faulty judgments. In one case, when a trial judge who noticed an error in his judgement sought to rectify the same by issuing and personally serving hearing notice of counsel to re-open the issue leading to his error. His attempt at infallibility as a trial judge was roundly deprecated by the Supreme Court. Bakare vs Apena (1987) 4 NWLR (pt 33)1.

So it must be conceded to all courts of first instance, that the judge is entitled to be sincerely or genuinely wrong. And the present situation where opponents read political coloration or corruption into unfavourable judgements must be discouraged.

Returning to the case at hand, while it is obvious that the learned trial judge relied heavily on the Peter Obi vs INEC (2007) 7 S.C 268 in extending the tenure of the 5 judgments, it is submitted that his lordship should have relied on the Ladoja vs INEC (2007) 7 S.C. 99 case where Gov. Ladoja was illegally ousted for 11 months but could not get an extension as the court firmly held that it has no jurisdiction to extend the governor’s tenure.

The case was decided by the same panel that decided the Peter Obi’s case on the same day. What is more, the Supreme Court clearly limited the application of the Peter Obi’s case by saying that “for the avoidance of any doubt, this judgment affects the governor of Anambra state alone” at page 319 (supra).

This column has repeatedly made this point but several scholars disagree and have been quick to apply Peter Obi’s case in several sates without seeking court interpretation such as in Ondo, Edo, Ekiti and Osun State. Well, they are right and this column is wrong, but then why are they now agitated that the reasoning has now been applied by a court to PDP states. What is good for the gander is no longer good for the goose? Or is the Peter Obi’s decision only for the “progressive states”?

Yet another aspect of the decision that is erroneous, is the second Oath of office reasoning. This is a very popular view but which is erroneous in the face of the decision in the Supreme Court case of Balonwu vs Governor of Anambra State (2009) 12 S.C. 31 where some Anambra state legislators heed sought to continue with Gov. Obi on his being sworn on the 17^th March 2006 when Chris Ngige was removed as governor. They had argued that a second proclamation by Gov. Obi the bonafide Governor was the valid proclamation that gave legality to their tenure and not the first proclamation issued by the ousted Chris Ngige. The Supreme Court said “no”, that the first proclamation by the ousted governor was the valid one under the doctrine of necessity and the second proclamation by bonafide Gov. Obi was mere surplus age. Had his lordship adverted his mind to this decision, his lordship would have not been swayed by the popular but erroneous second oath of office argument.

The result of the judgment which will allow persons to benefit from their wrongdoing should also have bothered his lordship, a politician wins a fraudulent election, which is eventually set aside, years into 4 year term and then wins the re-run, and he is now allowed to start a fresh 4 year term.

This is absurd and it is a trite principle of law that the law does not allow or recognize an absurdity. Lex non cogit ad absurdum. In fact the question that should be asked is, whether the Delta State Governor, Emmanuel Uduaghan almost three and half years into 4 year term, should not be given a fresh 4 year term. Thus spending seven and half years for a 4 year tenure based on his wrongdoing. Can any situation be more absurd?

Perhaps, it is for the danger inherent in the Peter Obi’s case that the late Chief Gani Fawehinmi SAN and Justice Uwaifo (retired) Justice of the Supreme Court did not share the general euphoria of the Peter Obi’s case even though they were roundly condemned by so called progressive scholars. Gani must be having a good laugh in his grave!!

The solution to the present problem is for the Attorney General of the Federaion, the Chief Law officer of the Federation to rise to this great occasion by eschewing partisanship and appeal as a party interested to the Court of Appeal under the constitution and raise a constitutional issue for reference under section 298 (1) of the 1999 constitution from the Court of Appeal to the Supreme Court and have the matter determined in a few weeks by the Supreme Court (excluding the CJN) as a matter of constitutional importance before the April elections. Gamioba vs Esezi II (1961) 1 ANLR 588 OLAWOYIN VS C.D.P (No2) (1961) ANLR 625 Bamaiyi vs A.G. Federation (2001) 7 S.C. (pt 1) 62.

This is not as difficult as it seems. What is crucial here is the political will to act can the AGF step up to the challenge? And if that is done, the argument of the late sage Gani, that the issue of tenure elongation is under section 285(1) of the constitution can only to be determined by an election tribunal should be raised for adjudication by the Supreme Court.

It is most desirable that these urgent steps be taken to stem the tide of chaos and anarchy which seem to loom over the nation as the 2011 General Election approaches.

A stitch in time will save not only nine but prevent the Federal Republic of Nigeria from going up in flames ala Tunisia, Egypt and Libya!!