Ugbah Vs. Suswam: Justice Run Amuck? A Review of the Election Tribunal Decisions And Judicial Conduct In Benue State Nigeria

A Public Statement Issued by Concerned Nigerian Diaspora Citizens

We the undersigned have read with serious concern and incredulity the conflicting Judgments of Friday September 16, 2011 of the Court of Appeal sitting in Makurdi, Benue State.

The case in question stems from the petition filed by Professor Steve Ugbah of the Action Congress of Nigeria (ACN) challenging INEC's declaration of Governor Gabriel Torwua Suswam of the PDP as the duly elected Governor of Benue State following the election of April 26 2011. On June 23, 2011, lawyers for Professor Ugbah filed an application ex-parte – that is, without notice to the opposing side – to move the tribunal deliberations – whose progress had slowed to the speed of a sick snail due to the obstructionist tactics of the lawyers for the defense – into the pre-hearing phase. Predictably, lawyers for the incumbent, Governor Suswam, and lawyers for the ruling PDP as well, raised objections. They argued that Professor Ugbah’s application ought to have been moved by a motion on-notice, and not by motion ex-parte. The Tribunal overruled Governor Suswam’s lawyers, and granted Professor Ugbah’s motion for commencement of pre-hearing, following which Counsel to the PDP withdrew his preliminary objection while Counsel to Governor Suswam appealed the Tribunal’s decision at the Court of Appeal..

In the aforementioned ruling of September 16, 2011, the Court of Appeal dismissed the incumbent governor’s appeal challenging the Tribunal’s decision as lacking merit and granted Professor Ugbah and the ACN legal team a pre-trial hearing without seeking the leave of the Tribunal. In ruling, Appellate Court Justice Abubakar Gumel said: “The respondent [Professor Ugbah] is at liability to use any method since there is no prescribed form for bringing an ex-parte motion...it could be through motion, summons, or petition.” The court went further and held that pre-hearing sessions could begin by a simple letter for issuance of pre-hearing notices without filing a motion on-notice, or an ex-parte motion. Astonishingly, the same court, in the same judgment, on the same day upheld a PDP appeal seeking nullification of the Tribunal’s proceedings based on the argument that Professor Ugbah did not seek leave of the Tribunal before pre-hearing session, and since no leave was obtained, the entire Tribunal proceedings are null and void, i.e., without any effect.

On three very important scores the Court of Appeal’s self-contradictory and inexplicable ruling bespeaks a deep-seated judicial activism that undermines the public’s confidence in the judiciary and its moral authority.
 
First, the logic on which the Court of Appeal heard the PDP’s appeal in the first instance is not known in law. At the lower Tribunal, counsel to the PDP withdrew his objection challenging the validity of the pre-hearing session, and the Tribunal subsequently struck out that preliminary objection. By basing its ruling on a motion that was voluntarily withdrawn by counsel of the PDP without objection by any of the other parties at the Tribunal, the Court of Appeal compromises its own integrity.

Second, at the Tribunal, neither counsel for the incumbent Governor, Dr. Suswam, nor counsel for the ruling PDP raised any issue concerning seeking leave before commencing pre-hearing. How, then, did the issue of leave now come before the Court of Appeal? Compounding judicial confusion further, if in the first decision the court finds a simple letter to be sufficient, how, then, does it become required of one to seek leave to write a letter to the registrar to issue the notices?

Third, and even more scandalous, in their ruling, the Court of Appeal relied on a petition and appeal in which neither Ugbah nor the ACN are even involved. While referring to Professor Ugbah's petition, the Justices referred to it as Petition No GET/BN/03/2011, which is the case number for Saror vs. Suswam, not that of Professor Ugbah, which is filed as Petition No. GET/BN/02/2011. Ugbah is not a party to the case of Saror vs. Suswam. It is deeply troubling that the court should mix up the case numbers in their official ruling. Moreover, Saror vs. Suswam was not scheduled for judgment until September 21st. By implication, is Justice Tsamiya telling Nigerians, and the world, that the Court of Appeal has already issued a judgment on a case that it is yet to hear?

The matters arising from these decisions are of profound interest to Nigerians at large.  The justices of the Court of Appeal in Makurdi have merged the political with the legal and have converted the court into the judicial activist wing of the ruling PDP where the PDP is a judge in its own cause in a futile bid to obscure the REAL issue in dispute, namely, was the gubernatorial election in Benue State free and fair (as the defense contends), or was there electoral fraud on a scale that calls into question the validity of the results announced by INEC (as Professor Ugbah and the ACN contend)? This is, and must remain, the overarching question that supersedes all other considerations.

As Acting Chief Justice Musdapher noted in his remarks at the opening of the special session of the Supreme Court to mark the commencement of the 2011/2012 legal year, the judiciary is the last hope for the common man. To allow the aspirations of millions of peace loving Nigerians to be decided on technicalities is in itself an injustice as grievous as any electoral fraud. There is one way – and one way only – to resolve this question, and that is to critically weigh the evidence. Nigerians of all stripes are interested in the facts of the matter not esoteric legal technicalities. To decide the outcome of the competing claims otherwise is to give up the democratic gains we have made and slide into a lawless system where corruption pays; where the people’s aspirations do not matter; and where politicians can buy their way into office

The people of Benue State, in fact all Nigerians, demand a judicial system that defends our emerging democratic institutions, and not one that destroys it by self-contradictory pronouncements. In the interest of justice, we insist that:

1.    The facts of the matter focusing on the substantive question of whether or not the incumbent, Dr. Gabriel Torwua Suswam, truly received a majority of legally cast votes must be heard.

2.    The Acting President of the Court of Appeal immediately call to order the Court of Appeal empanelled in Makurdi before these justices of the court do greater damage to the cause of justice in Benue State specifically, and by implication of judicial precedence, Nigeria in general.
3.    The antecedents of the Chairman of the Makurdi Court of Appeal not be lost on all. It is noteworthy that Justice Mohammed Ladan Tsamiya was also a member of Court of Appeal sitting in Enugu between 2009-2010 that issued another controversial and contradictory ruling that generated tremendous socio-political tension in Anambra State. In that ruling, the Court of Appeal declared Joy Emodi (PDP) the winner of April 2007 election senatorial race. In March 2010, however, the same Court of Appeal presided over by the same justices declared Alphonsus Uba Igbeke of ANPP as the winner of the said Senatorial election. What followed were protracted Judicial Committee hearings to determine who should represent Anambra North Senatorial district in the Senate and which ruling was superior.  While that was going on, the Senate decided to sit Joy Emodi pending the final outcome of the judicial process.  What these two incidents clearly suggest is that, in electoral matters, many a justices are under  a dark cloud of political influence from incumbents  that  are willing to not only find loopholes to jettison hearings but would also go out of their way to issue rulings that are empty of meaning.

Professor Ugbah has amply demonstrated his patriotism, peace-loving nature, and belief in Nigeria, by consistently calling on his restless supporters to remain calm and law- abiding.  He is currently seeking justice at the Supreme Court which is the final arbiter on constitutional issues.  We have faith that Nigeria’s apex court will not allow this blatant miscarriage of justice to stand. However, it is clear to all Nigerians thus far that democracy does not subsume more accountability and less corruption.  Furthermore, it is clear to them that the positive change they hanker after may remain illusory especially if those entrusted with this important obligation shamelessly neglect it. 

Even so, we are optimistic that the Supreme Court has enough integrity to do what is right and to do so in a manner that is transparent to winners, losers, and all stakeholders. On such basic premise lie the future of democracy, justice, and the destiny of Nigeria.
Long Live Benue State!
Long Live Nigeria!

Signed:

On behalf of Concerned Nigerian Diaspora Citizens

1.     Aondover Tarhule, Oklahoma, USA
2.    David Unongo, California, USA
3.    Agber Dimah, Chicago, USA
4.    Agber Ifan, New Jersey, USA
5.    Emmanuel Wasem, Houston, USA
6.    Tony Yange, UK
7.    Alexander Unongo, USA
8.    Mngohol Chile, New Zealand
9.    Lord Uvah, Maryland, USA
10.    Joseph Zume, Pennsylvania, USA
11.    Mku Ityokumbul, USA/Nigeria
12.    Matthew Atim, USA/Nigeria
13.    Stevina Evuleocha, California, USA
14.    Joseph K. Unongo, Atlanta, USA
15.    Charles Akhidenor, California, USA
16.    Rose Akhidenor, California, USA
17.    Emmanuel Ugbah, California, USA
18.    Jacinta Aernan, Texas, USA
19.    Steve Ike, California USA
20.    Daniel Ugbah, California, USA
21.    Sunny Moze, New York, USA
22.    Jude I. Unongo, Atlanta, USA
23.    Daniel D. Ugbah, Oklahoma, USA
24.    Ernest I. Ezeoha – California
25.    Kola Thomas – California
26.    Dr. Baba Adam – California
27.    Frank McMaye - California
28.    Chief Laolu Akande – Maryland
29.    Professor Herbert Orji – Nigeria
30.    Davies Ononiwu – California
31.    Arinze Chukwuneka – California
32.    Chike Kani Okpala – United Kingdom
33.    Dr. Veronica Ufoegbune – California
34.    Onyeabor Ufoegbune - California
35.    Anitra Petra – California
36.    Dr. Francis Ero - California
37.    Dr. Marcelina Ada Ogbu – California
38.    Viki Shusterman – California
39.    Lois Blalock – California
40.    Julius Ujeh – California
41.    Chief Lanre Hassan – California
42.    Linda Fadeke Richardson – California
43.    Abi Adeoti - California
44.    Mathew Ajiake – California
45.    Charles Okwudiafor – California
46.    John Ojewole – California
47.    Professor Ernest Uwazie – California
48.    Dr. Toye Moses – California
49.    Martin Nnam – California
50.    Soji Fanoiki - California
51.    Victor Umeh – California
52.    Emeka Ezeoha - Nigeria
53.    Raymond Dapo Odunlami - California
54.    Egbuna A. Onyeagwa - California
55.    Chris Okugo - California
56.    Dickson Adetuyi – California
57.    Alex Ilori – Florida
58.    Victor Anyaneh – California
59.    Gabe Ogbozor – California
60.    Orianele Uduebor - California
61.    Mrs. Chika Dorothy Uzoh - California
62.    Mrs. Nneka Ottah-Ihejeto - California
63.    Mrs. Jessica Monasterio – California
64.    Osagie Enabulele – California
65.    Cheryl Moore - California