RE: MISS UZOMA OKEREKE WHERE ARE THE CIVIL RIGHTS SOCITIES AND HUMAN RIGHTS GROUPS?

It is no longer news, at least to Lagos residents that a certain Miss Uzoma Okereke was brutalized along Muri Okunola Street, in Victoria Island recently by heavily armed security details of one Rear-Admiral Femi Arogundade for no offence known to Nigerian Law except obstructing the convoy of "His Excellency" Rear Admiral Femi Arogundade.

It is also no longer news that the Governor of Lagos State has apologized to the brutalized young woman (is it on behalf of the Nigerian State that has produced monsters in uniform such as Femi Arogundade) for the bestial conduct of the said Naval Chief whose aides not satisfied with giving the young woman the beating of her life removed her top clothing in public glare in what must pass as an award winning act of man's inhumanity to man. All these acts from the real-life "theatre of the absurd" were fortuitously captured on-camera Rodney king-style and are making the rounds in Lagos in form of un-censored and un-edited Home Video. But while the home of Rodney King has moved on to elect the first Black President (which is not to say racially inspired Police brutality has completely disappeared in the US or will altogether disappear under President Obama), Nigeria's unique contribution to global event almost years after the Rodney King Incident is to re-enact the event with greater crudity on an hapless young woman.

Well, as said earlier Lagos State Governor has apologized to the unfortunate victim and has passed on the matter to the State's solicitor-general to look closely into the matter for further and necessary action. Governor Fashola has also promised to pick up Miss Okereke's legal and medical bills in addition to making representation to the Federal Government on the issue. By these acts Lagos State has shown once again, that it remains without any dispute the nation's centre of excellence. Well done Governor Fashola SAN,
Eko oni baje o.

In spite of the media focus on the issue, it is a matter of great shame and disappointment that the nation's civil society and human right groups have maintained a deafening silence to this brazen violation of a citizen's rights. Is it because there is no political mileage to be derived from the incident, as neither the violator nor the violated are of any political persuasion, so no PDP vs. opposite party Scenario is possible? Or is it because the victim is female, after all Nigeria still remains a traditional Patriarchal society that pays at best lip service to the right of the woman or girl-child?

It is instructive to note that this is the second celebrated instance in recent time of the brutalization of the female folk by a public officer. About a year ago a lady on her way to church on the Lagos Island was traumatized by the security details of the Imo State Governor, Chief Bcedi Ohakim. It does appear however that the extent of brutalization was very mild compared to the most recent incident presumably because all those involved in the earlier incident the Governor, his police and SSS details and the helpless lady and her two children, were by Nigerian military lexicon "bloody civilians". Even then, there were half hearted comments from only a handful of human right crusaders.

With the manifest apathy that human rights group have once again displayed to the brutalization of citizen Uzoma Okereke, the cynical view that is gaining ground among a cross-section of the Nigerian populace, is that apart from Chief Gani Fawehinmi SAM, SAN and a few others, the rank and file of the human rights community is peopled, by opportunists, political jobbers, media con-men and people seeking relevance, for public recognition to pursue a self-seeking and parochial agenda. It is unimaginable that were it not for Chief Fawehinmi's present health challenge, he would not have pursued Miss Okereke's claim at his own personal cost. His temporary absence from the scene what we have is selective, politics inspired human right crusade which some have aptly termed "money rights".

A TALE OF TWO ELECTIONS
While 150 million Americans voted in the-American elections and the results were released and adopted by both winner and loser within 24 hours it took 19 months for the election dispute in Edo State involving less than 2 million voters to be resolved even then only with the help of the judiciary. No situation better illustrates the difference between the American and Nigerian electoral system. Even as we speak the Nigerian presidential elections that took place in April 2007 is yet to be resolved 19 months after the event and when it is, only by the (Supreme) Court. Thus, our electoral system is completely dependent on the courts, which though appears very good for the image of the judiciary, makes nonsense of our ability and readiness to practice a system of government where the voter (electorate) is King (and not the court, with all due respect to its constitutional supervisory role). We ain't started democracy yet- apologies to Americans.

THE EMERGENCE OF OBAMA BARRACK AS THE 44TH PRESIDENT OF UNITED STATES OF AMERICA: THE BEGINNING OF AN AFRICA RENAISSANCE? By Ademola Adewale Esq.

A Great day for Africa and the Black world: This is a very great moment in the history of not only the United States of America; the world's only surviving super power, the modern day Roman Empire but in the history of the world and of Africa particularly Black Africa. Yes, America has finally found its destiny as foreseen by its founding fathers that all men are equal and born free irrespective of circumstances of birth, colour or creed. This was the article of faith that gave rise to the American Dream which allows every American irrespective of his background to get to the very top including the Presidency of the United States. Even immigrants have benefited from this dream in one way or another, remember Henry Kissinger with his highly accented English, became Secretary of State within one generation of becoming an American citizen, same with Maudeline Bright.
But for members of the Black Race now called African-Americans it has been the longest walk to the top from slavery to the proclamation of freedom, to legitimized segregation (discrimination) to legal equality, through the Civil rights movement and affirmative action, it has been a long and bitter struggle for the Black man now famously referred to as Man of Colour to get to the very top in America. Even Rev. Martin Luther King Jr, that great prophet of God and civil rights leader who had a dream that his four children will sit together at a table with all of God's children irrespective of their colour, and will be judged by the strength of their character and not the colour of their skin; that the African-American will one day proclaim in the word of the Old Negro spiritual, 'Freedom at last, Oh Lord I am free at last,' did not live to see this Great Day as he was felled by an assassin's bullet 40 years ago. But he is in good company with his much earlier predecessor Moses the Prophet who prophesied about the promised land but did not get there. Rev. Martin Luther King must be full of joy, for the great day has come.
Right from the onset, the Blackman's great potentials have been obvious for all to see; after all it is universally acknowledged that Africa is the Cradle of Human Civilization but the history of (Black) Africa for several generations even till date belies any claim to civilization and human progress. Poverty, under-employment, backwardness, wars, and diseases genocides, famine and disasters, bad leadership, plundering and looting of the treasury by leaders, dictatorship and fascism and every imaginable negative tendency are the hallmarks of the African continent. So much so that many have doubted how the continent could ever in human history be the cradle of civilization. The continent for the most part seems to be on the receiving end of global progress and development whether it be technological, economic or political, giving Africa particularly sub-Saharan Africa the home of Black Africans a grave image of a dark continent. The fact that every now and then positive signs of the human genius emanate from Black Africa both at home and in diaspora has not done much to debunk the status of Africa as the dark continent. Thus the fact that from Africa have emerged, Wole Soyinka, Nelson Mandela, Desmond Tutu, Philip Emeagwali, Barth Nnaji and in the diaspora Dr. N.W Dubois, Marcus Garvay George Washington Carver, Tons Morrison, Ben Carson, Martin Luther King, such personalities are seen as a mere handful of geniuses, and as for black domination of sports from Jesse Owens, Muhammed Ali, Michael Jordian, Tiger Woods and the Williams' sisters such achievements have always been denied as mere evidence of physical ability although such negative comments are becoming difficult to make in view of the incursion of black athletes and even domination of otherwise 'white sports such as, Golf, Tennis and now Motor Racing by Tiger Woods, The Williams' Sister and the new kid on the Block, Lewis Hamilton. So for a Blackman to now emerge as President of the United States of America is undoubtedly the most glorious thing to happen to the Black Race in several generations.
Yes, Obama Barack carries with him the hopes of not only 40 million African American but 250 million Africans on the home continent to succeed as the most powerful man in the world for the next four years.
Implications of Obama's Victory for Africa and the rest of world.
Africa till date has remained a mere footnote in the foreign policy of the U.S.A while it might be naive to expect any extra-ordinary change to happen it is hoped that an Obama Presidency will accord Africa his rightful place in world affairs as a continent to be encouraged to develop as has been done with Latin America and the Asian tigers in Far-East Asia. It will be a great disservice to Obama's heritage as an African if he continues in the tradition of his predecessors including so called Negro-loving Presidents who only accorded Africa a patronizing attitude as a donor's basket for giving assistance towards the eradication of one disease or the other that gives some western donor agencies some warped messianic feelings. Hardly are efforts made to partner with African countries on economic programmes that will entrance the developmental efforts of African nations. Under an Obama Presidency, we expect genuine socio-economic partnerships. However, let no one be deceived that salvation will come from America or any where else in the development of Africa. Africans and Africans alone can accept Africa, the earlier our leaders accept the obvious the better for us.
In respect of the Middle-East, Obama with his African ancestry rooted in Islamic background together with his personal Judeo-Christian conviction is excellently placed to assert the right influence to keep the Middle-East peace process on track. He ought to better appreciate the fears and aspirations of the major stakeholders in the Middle-East than his essentially Judeo-Christian Predecessors.
By the same token an Obama Presidency should be able to retain America's leadership position in global matters in a less overbearing manner and be much more tolerant of opposing views. That is the only way America can earn and retain respect in World Affairs. That way there will be less and less inclination on the part of the U.S to force its opinions and ways on others in consequence of which there will be less imperialistic tendencies and more tolerable global friction. That should make for U.S staying away from avoidable conflict and wars. It will be sheer nativity to imagine that a benign or friendly America will attract universal respect, there will always be nations or people who are averse to the American way of doing things but a less imperialistic America stands a great chance of being tolerated by most members of the comity of nations. In such situation the U.S will attract a lot more global empathy for the inevitable conflict that might occasional arise where its interests are threatened.
On the issue of avoidable wars, the Obama Presidency should as a matter of urgency initiate a face-saving exit plain for the Bush's administration military misadventure in Iraq and Afghanistan. The withdrawal from these theatres of War should be swift but give the America military establishment a soft-landing so as not to give the impressionitis running away from these theatres of War with its tail between its feet as happened in Saigon in 1975. It is important in the interest of the American nation, and its influence globally that the ailing nation be not further bruised by a hasty and panicky withdrawal from war.
In any case, it should be obvious that the idea of fighting wars with even the best men and armaments thousand of miles away from home is nothing short of a recipe for disaster; it failed Napoleon Bonaparte is his Russian Campaign, it marked the beginning of the end of Hitler's Third Reich when he embarked on the Russian Campaign in winter, it failed the U.S in Vietnam and has done so once again in Iraq and Vietnam. Obama and his successors will do well to take these hard lessons of history to heart.
WHAT LESSONS FOR NIGERIA?
The lessons for Nigeria from Obama victory at the US 2008 Presidential elections are legion:
Democracy is about the people's sovereignty and their preference. The Americans wanted a change in leadership and they said so through their votes. If our democracy is to survive, our votes must count.

Politics is about issues and not sentiments of tribal affiliations. Here Obama being an ethnic minority would not have secured the nod of an of the big political parties, imagine an Ijaw man Edo, Tiv, Idoma, Efik, Urhobo, Itsekiri, Nupe or Isoko man wining in a free and fair, national election in Nigeria as our president. Until that day when we move away from the tottering and unstable politics of me tripod, Yoruba Ibo and Hausa we will not make any meaningful progress.
See the way the American candidates discussed issues and presented their vision to the people, there was robust debate about the economy, the war in Iraq social welfare, medi care, taxes on bi-corporation etc. though there were doses of ad hominem attacks and digging into the candidates past, these were in healthy doses and meant to test the candidate's suitability for high office. There were no cases of thuggery, electoral fraud and rigging, (there were of course machine breakdowns to show that humanity cannot be perfect) Godfatherism, intimidation etc that have conspired to make elections in Nigeria a nightmare.
An unprecedented 150 million Americans turned out to vote and election results were out within 24 hours. Our own electoral body INEC could not handle less than 60 million Nigerians who registered to vote. Granted that we are way behind technologically, yet there is no reason why we cannot have free fair and credible elections with results from even the most challenging terrain out in 48 hours.
Finally, President-elect Obama Barack was gracious in victory looking forward to working with his rival Senator John Mccain, the loser who too was gallant in defeat “Godspeed to my former opponent and ……. My president” said Mccain
There was no gloating in victory and vow to rule the nation for 60 years, there was no threat of going to the highest court in lard to “regain the mandates stolen”. Unlike Nigeria that is struggling with the fall-outs of the April 2007 elections almost 2 years after the event, not a simple dime of either the tax payers money or (money stolen from the tax payers re-styled) personal resources is going to be used to pursue election petitions in court. Elections have been won and lost and the great nation moves on. That to me is the mother of all lessons.
Conclusion
With the election of African-American Barack Obama as the 1st Black President of the United States of America, America has proven beyond any shadow of a doubt that it is indeed God's own country and the natural leader in the affairs of mankind at this point in time and for us as Africans who share brotherhood with new American President elect Barack Obama it is a momentous time
In our life time: (Country Ebony) and a wonderful period to be alive.
The learned Squib
The Bad Old Days
Everybody or almost everybody has been told that I have a case to answer before the Legal Practitioners Disciplinary Committee at Abuja on Monday the 10th November 2008. The Announcer was none other than the 'trial court' itself, and for maximum coverage used a popular national daily newspaper to advertise the “coming event”
The case has been on, at least on the cause list for five years. Five years of motion without movement, burning without heat.
Surprisingly there are many lawyers who do not know why I am on the cross of prosecution or that I am still standing trial before the LPDC. Such folks, in season, out of season, do walk up to me, to enquire why the “Abuja Summons”?
This piece is actually meant for the innocent and the young at the bar and, well, the old but the forgetful. Let no one mislead you about my case with the LPDC. I have defrauded no one, I have cheated nobody. I have not committed any contempt. And no judge could say of me as an advocate appearing before him that I deserve prosecution. I am not insolent.
I am before the “Sanhedrim” for the crime, of speaking out. Speaking out, loudly, boldly, directly and truthfully. I am on the cross for having the guts to tell the truth, no matter whose ox is gored.
The Squib, I tell you and you are hearing from the horse's mouth, was born as a reaction. A reaction to rot, a reaction wrought from the fire of indignation at the abuse and misuse of office at all layers of authority in the Judiciary, as well as in the bar.
I tell you in 1996 when I became a legal practitioner, the Lagos State Judiciary was in no healthy shape. Bribery, even extortion of money was the order of the day. There were so many dirty judges and magistrates then, whited sepulchers. Lords they were, but not lords of Justice, or masters of Equity, or captains of Fairness or paragons of Accountability. Rather they were judicial king-pins of mamonised proceedings and cash and carry rulings. As for the bar, it was reeking most foully of sharp practices. The bar was very scare in the number of decent and noble practitioners. And infact, many older, senior lawyers employed crooked means to win their cases and served as no good examples to the younger ones. Such lawyers were and some still are Senior Advocates of Prepaid Judgements (SAPJ).
Things were so bad then, that litigants preferred the service of lawyers who know Judges to the services of lawyers who merely know the law! That, my dear, was the situation. It was a stinking corruption that gripped Lagos State Judiciary with so much swaggering arrogance and insolence.
Everybody, litigants, lawyers and the very few upright judges know how terrible and horrible the situation was but nobody cared enough to do anything much about it.
Where was the Bar, the association of lawyers, all that while? The bar, I tell you, was on a voyage of self exile and cowardly, dumb retreat. No victim of oppression and injustice in the Judicial System could not run to the bar and get succour. It was a Bar, self compromised either morally or intellectually. It was a bar which had forgotten her true mission of societal guidance and leadership.
Then thunder, in the form of the Squib, struck and the rest, as you are even witnessing today is history.
Permit to say this, the Squib is a positive factor in the little transformation of the Lagos State Judiciary from being blantantly corrupt and inefficient as it was in the 1990s and early 2000s to its present state. For those who may not really appreciate how terrible the misconduct of judges, magistrates and lawyers was in the 90s and the early 2000s in the Lagos State Judiciary, I tell you this true live story.
Four days after moving and losing a motion ex parte, a particular counsel, Barrister X, who himself is now a judge, came back to the court, very much prepared to move his motion on notice.
As he cleared his throat to do just that, Barrister X was shocked to hear the presiding judge say to the counsel on the opposing side.
“Are you aware that I have granted an injunction in this case?”
Barrister X and his junior could not believe their ears, however they managed to hide their shock and kept a discreet silence. It was later they learnt the truth-their clients without notice to counsel, had gone to “see” the judge! Compromised, the judge had rewritten his records and ruling!
Unbelievable, you say? But that's the gospel truth. It was because of situations like this that the Squib was born. So that we can have the “good new days.”

THE (IL)LEGALITY OF OATH OF SECRECY By Ademola Adewalw

The Yaradua Administration still smarting from the self-induced embarrassment over the Presidential resignation saga took yet another controversial decision by swearing all presidency cabinet members to an Oath of Secrecy.
Presumably, the Oath of Secrecy is to stop the information leaks from official quarters of official secrets including potentially politically damaging news of Mr. President's health condition.
It must be said without any equivocation that this new action is yet another Faux Pas: a big political blunder that has arisen from self-imposed political panic. What is even more baffling is that the hide and seek approach of the past did not prevent the spreading of the most wicked rumours about the President's health; is it then this “gag order” of the “Secret Order of the Presidency” that will eliminate damaging rumours about not only the President's state of health but various actions and policies of state?
Well beyond the political inexpediency of the Oath of Secrecy is its manifest illegality. A cursory look at the Constitution reveals that no part of the nation's Supreme law supports the taking of an Oath of Secrecy by any public official. None of the oaths prescribed in the schedules to the Constitution inclusive of the Oath of Allegiance qualifies for an Oath of Secrecy and several sections of the Constitution make it a ground of disqualification for a citizen who belongs to a secret society or cult to aspire to public office Sections 66(1) (g), 107 (1) (g), 137 (1) (h), 132 (1), (h) of the 1999 Constitution.
The Oath of Secrecy is reminiscent of the odious Oaths of Secrecy and Allegiance that cults and secrecy societies swear their members to.
In the mid 70s the military government of the then General Olusegun Obasanjo, in the aftermath of the great civil service purge was mindful of the grave dangers that allegiance to secret societies and cults can do the smooth running of public service and the productivity necessary of an efficient bureaucracy outlawed officers. At the time public officers had been required to openly renounce membership of secret societies, in addition to taking Oaths of allegiance to the Nigerian nation.
Ever since the nation's laws and Constitutions have continued in the tradition of outlawing membership of secret societies. Now that the Presidency has prescribed an Oath of Secrecy for public officers at the Federal level, is this not an open challenge to the nation's Constitution which the President and all public officers have sworn to defend and uphold?
The decision of the Supreme Court in A.G Federation V Atiku Abubakar (2007) 4 S.C (pt II) 62: where the central issue was whether the loyalty of the Vice President to his President was such that once he decamps to another party he automatically loses his seat, the Supreme Court held interalia that his loyalty was first to the Constitution rather than to the President and not any office.
Furthermore, every public officer including Mr. President holds office at the pleasure of the sovereign people of Nigeria by virtue of Section 14 (2) of the Constitution.
Thus the loyalty of all public officers is first and foremost to the Nigerian people, thus the Oath of Secrecy administered on serving public officers by the President is a direct challenge to the sovereignty of the Nigerian people.
It is also a fronted confrontation to the right of the Nigerian people to have access to information in line with Section 39 of the Constitution which the much desirable freedom of information FOI Bill seeks to enhance.
At yet another level the Oath of Secrecy reveals the level of opposition to the FOI bill not only from lawmakers but also from the Federal Government, so no one should be surprised about the sustained opposition to the passage of the FOI Bill.
Indeed, the new Oath of Secrecy will frustrate the National Assembly in the discharge of its powers to investigate the activities of government under its supervisory functions under Section 88 of the Constitution.
In the context of the law and the courts the new policy is reminiscent of the old common law under which the sovereign (King/Queen) was excused from giving evidence under the doctrine of crown (State) privilege as established in Duncan V Cammel Larrd (1942) Ac 624 by stating that such evidence was prejudicial to state security. The doctrine was later overruled in Conway V Rimmer (1968) ALLER 874.
In Nigeria despite the nation's common law heritage, our judges had always been uncomfortable with the idea of a blanket cover of State privilege to excuse a public officer from divulging evidence necessary to the just determination of a case.
In Queen V Administrator of Western Nigeria Exparts Bamgbala (1962) WRNLR 344, where Charles J. decided that in a case between two government agencies the claim of State privilege is not conclusive but it is to be decided by the court.
In Apampa V Balogun unreported decision. Aguda J. (as he then was); where the Commissioner of Local Government sought the exclusion of some documents on the ground that it would prejudice government interest, rejected the claim saying “ a litigant cannot be said to have had a hearing if the part of the evidence he requires is shot out and he is prevented from leading it.”
In Adeyemi V Western Nigerian Housing Corporation (1968) NMLR 66.
Olatawura J rejected the argument that the production of public documents showing how plots of land were allocated in the Ikeja G.R.A would prejudice public interest. His Lordship held that to such an argument meant government had something to hide.
The counts power should be excluded or not based on public interest or security was contained in Section 33 (II) of the 1979 Constitution and now Section 36 (4) (b) which provides that a Minister of the Government of the Federation or a Commissioner of a State satisfies a court that it would rest be in the public interest for any matter to be publicly disclosed, the court would exclude such evidence from the proceedings. This pro-active Constitutional Provision allows the court to check any Executive shenanigans aimed at covering up vital information under the vague “public interest and security” claim.
Indeed, the clause sought to be inserted in the FOI Bill by the Senate to exclude information on grounds of national security. Will even if inserted not be able to stand up to Constitutional scrutiny as the courts have the final say under Section 36(4) (6) of the Constitution as to what is in the interest of national security.
Oyegbemi (Editor Daily Sketch) V A.G Federation (1982) 3 NCLR 895. The bottom line however is that Oath of Secrecy is illegal and unconstitutional and cannot be deferred either on the basis of the official Secrets Act, a Colonial inheritance which is subject to Section 39 of the Constitution or the nebulous claims of national interest and security.

Post Script: In the light of the raging debate about the FOI Bill, this column will in the nearest future turn to search list on the full debate on the FOI Bill.

(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?