Justice Umaru Faruk Abdulahi, retiring president of the Court of Appeal, was last week installed as the Walin Hausa of his home town in Katsina State with fanfare. It was a traditional recognition for his long service and contributions to the administration of justice in Nigeria.
As the Appeal Court President since 1999, Abdulahi is reputed to have improved justice administration and standardized important protocols and procedures. His most visible contribution, according to lawyers, is the issuance of Practice Direction, a procedure which quickens the determination of electoral petitions through the front loading of evidence. But despite the loud ovation, Abdulahi is leaving the Court of Appeal, the largest court in the nation, with a capital question mark hanging on its integrity. He is leaving behind a court whose integrity, credibility and capacity to give free and just judgments has been considerably eroded by allegations of bribery and corruption.
Among all the levels of courts in the country: customary, magistrate, high court, Appeal and the Supreme Court, lawyers, litigants and even other judges allege that the Appeal Court is now the most corrupt court in Nigeria, and is gradually infecting the courts below and above. It is the court where lawyers allege that judgments could be more easily slanted for cash and influence than in any other. Indeed, things are so bad that some lawyers are radically canvassing that election matters which end at the Court of Appeal should now go the whole hog to the Supreme Court for litigants to be sure of justice.
Perhaps the greatest undoing of the judiciary today is the election petitions which, save for that of the president and vice president, ends at the Appeal Court. Recently, judgments delivered by election tribunals considered sound have been reversed by the Appeal Court against the background of allegation of bribery and corruption. In very controversial electoral cases like that Olusegun Agagu Vs Olusegun Mimiko of Ondo State and Osunbor Vs Adams Oshimole of Edo State, Abdulahi had to handle the cases himself to ensure there was no foul play.
Just as Abdulahi was revving up for his pull out the chief justice of the federation, Justice Idris Kutigi queried him on October 22 over an allegation of N2 billion bribe brought against him by Hope Democratic Party, HDP. Moses Ejiro, national secretary of the party, in a petition to Kutigi on October 20, alleged that Abdulahi is stalling their case against the election of President Umar Yar’Adua who is from the same Katsina State because of N2bn inducement. Specifically, HDP alleges that “the counsel (of the respondents) has boasted that N2bn had changed hands, or has been set aside to continue to frustrate the hearing of our party’s presidential election petition on its merit.” They further alleged that due to the bribe that Abdulahi had taken, he has refused to constitute a presidential election petition tribunal to hear their case against the election of President Yar’Adua on merit as ordered by the Supreme Court. The Supreme Court had on March 27 ordered the Court of Appeal to set up a panel to hear the petition of Ambrose Owuru, presidential candidate of HDP but the case was instead listed in a regular court. Ejiro wondered in the petition: “If the Court of Appeal and some SANs are allowed to continue to deride and not obey the orders of the Supreme Court, what will the ordinary Nigerians learn from them? Is this not gross professional misconduct?” The petition complained further that “the president of the Court of Appeal and some panel members of the Abuja Division of the Court of Appeal have exhibited open partisanship in favour of the PDP and its candidate in the flawed 2007 presidential election.”
On March 4 the Nigerian Coalition for Justice, NCJ, an Abuja based non-governmental organisation, wrote a petition to the Independent Corrupt Practices Commission, ICPC, alleging substantial corruption against some justices of the Appeal Court, including Abdulahi. Titled: “Public Petition on Corruption and Miscarriage of Justice in the Appeal Court system” and signed by Bala Tukur and A.B Femi, the petitioners alleged that members of the Court of Appeal sitting in Port Harcourt received bribes from members and functionaries of the Abia State government to pervert justice and thereby influenced the outcome of the Abia State gubernatorial election petition appeal. They further stated they had reasons to believe that corrupt practices exist in the dispensation of justice in several election tribunal rulings, which they described as “a calculated attempt at distorting our electoral process, perverting the rule of law and abusing the system...by agents of government and the judiciary.” They, therefore, urged the ICPC to investigate the President of the Court of Appeal and the five justices that heard the Abia State governorship election petition appeal in Port Harcourt: justices Saka Ibiyeye, Paul Adamu Galinge, Clara Bata Ogunbiyi, Olukayode Ariwola and George Oladeinde Shoremi.
Our sources in ICPC hinted that a prima facie case may have been established against the accused persons. In the course of the investigation a total of 29 bank accounts allegedly operated by the accused persons were verified and substantial sums of money that cannot be supported by their legitimate earnings found. A total of 42 statements of accounts were obtained from relevant banks, nine cheques in favour of some of the accused persons were found, co-related 17 inflows and outflow chart was prepared, list of payments and dates of payments were cross checked. Individual cash flows and account opening details were examined.
The preliminary report was submitted to the ICPC Chairman on April 3 and the Chairman sent it to the legal department for advice on April 21. Since then not much has been heard about the final outcome of the investigation. However, TELL reached the five justices and the Appeal Court president for their reactions on the allegations. While the five justices serving in different jurisdictions of the Court in Enugu, Lagos, and Benin dodged granting interviews to the magazine under one guise or the other, Abdulahi gracefully faced up to the challenge in a comprehensive interview at the Court of Appeal headquarters in Abuja . He denied all the allegations and stated that “no amount of money can buy one’s integrity.” Though he admits that the judiciary is not yet perfect, he insists “the judiciary has done its best so far.”
On August 13, another NGO, Aba based Human Rights, Justice and Peace Foundation, petition the ICPC chairman wondering what had become of the case. The petition, signed by Chidi Nwosu, demanded the prosecution of the Appeal Court president and the five justices that sat on the Abia State gubernatorial election petition appeal in Port Harcourt. “Our findings reveal that the allegations in the petition were investigated by ICPC and findings made... we make bold to assert that the arraignment of the justices of the Court of Appeal named above will demonstrate that there are no hiding places for corrupt persons. It will help to cleanse the system and set a clean stage for the 2011 electoral processes,” they stated. They further issued a threat that if after 14 days and ICPC did not act on their petition they would go to court to compel the anti-corruption body to “carry out your statutory duties.” Well, it has been three months since August ICPC does not appear to have acted on the ultimatum; the NGO appears not to have made good their threat either.
Reacting to the allegations, the Abia State government blamed the Peoples Democratic Party, PDP, for their travails. Sam Hart, chief press secretary to Governor Theodore Orji, dismissed it thus: “This Coalition for Justice is a fictitious group. If you go to the Corporate Affairs Commission, CAC, you won’t see their name, and if you go to the address the group listed, you will find out that it is probably a restaurant or something else. So, this allegation is a concoction by a group that doesn’t exist... The allegation is the figment of the imagination of the opposition, so they are just looking for something to clutch on. They are bad losers. It is sour grapes and nothing more”.
Though more prevalent at the Appeal Court, corruption appears to run through the whole justice system in Nigeria, including the Supreme Court. Certain judgments by the Apex Court have come under strong criticism by the public and lawyers alike for lacking the ingredients of justice. For instance, the Supreme Court judgment on the presidential election petition appeal: Mohammed Buhari of the All Nigeria Peoples Party, ANPP, Vs Yar’Adua of PDP, which went to Yar’Adua by a 4-3 split decision on December 12, 2008, was alleged to have been procured through financial inducement. Though the judgment contributed to stability in the country, some lawyers said it did not help the cause of justice.
Mike Ahamba, senior advocate of Nigeria, SAN, Buhari’s lead counsel on the case, felt so aggrieved about how Supreme Court judge, Justice Niki Tobi, arrived at his judgment to sway the judgment in favour of the President that he wrote a petition to National Judicial Council, NJC, to discipline the experienced judge for “judicial misconduct.” In his petition dated June 2, 2009, Ahamba stated: “This petition is not in dispute of the judgment which your petitioner and his client have accepted in good faith but against the way and manner Hon Justice Niki Tobi performed his judicial function in the judgment which, for all intents and purposes, fell far too short of expectation in the adjudicatory process in any tier of court in this country, let alone the apex court of the nation.” He further explained that though he knows that Supreme Court judgments are final: “...we hold the view that the conduct of any of those engaged in writing it is not final where such conduct falls foul of the law and judicial responsibility.”
Specifically, Ahamba alleged that Tobi breached the judicial oath he subscribed to under Section 290 (1) of the Nigerian Constitution and also infringed on Buhari’s fundamental human right under Section 36(1) and the common law of natural justice. He mentioned four breaches and infringements: raising an appeal and hearing same on a finding of a fact made by the Court of Appeal at the first instance, hearing against which neither side before the Supreme Court appealed, with full knowledge that no appeal was filed against the finding of the Court of Appeal; basing his conclusions substantially on fabrication of non-existent facts on record; misrepresentation and concealment of facts on record by a cover up of unprecedented dimension done with brazen impunity; and deliberately misrepresenting the law in order to achieve an obviously premeditated intent of entering judgment against the appellant. He regretted that Tobi “brazenly” descended into the arena of legal dispute with the overt intent of ensuring that the appellant lost and the respondents won.”
Unfortunately for Ahamba, the NJC sat over his petition and dismissed it for lack of merit. They cleared Tobi of any wrong doing and reprimanded Ahamba for using a harsh language on Tobi. However, a week before the NJC met, TELL was told by a member of the council, off record, that the petition was baseless and would be dismissed. And that was exactly what happened. It was also alleged by a judicial source that though there was a 4-3 split decision in favour of the President, “it was actual a unanimous decision.” According to him, the judges may have decided to split to give the judgment a semblance of balance but that “indeed they were together.”
That was not the only petition that Ahamba wrote to NJC on alleged judicial misconduct of judges. He wrote two others against the five justices who sat on the Appeal Court decisions on the gubernatorial election petition appeals for Niger and Kaduna states, both of the Kaduna judicial division for alleged miscarriage of justice. Like in the case of Tobi, NJC dismissed the two petitions against the Appeal Court justices for lack of merit. But Ahamba is still undaunted in his crusade to clean up judiciary’s Aguean stable: “I believe I have a patriotic duty to make some complaints. At least as a means of drawing attention to the cankerworm that is infesting the judiciary to see if we can nip it in the bud.”
Though he lost his bid to discipline the justices, Ahamba has gone back to the Kaduna division of the Court of Appeal asking it to set aside its judgment on the Sanni Sha’aban/Joel Kwassam Giwa appeal against the election of Namadi Sambo as governor of Kaduna State and conduct a rehearing. According to him, the judgment was a nullity because the panel breached the rules or natural justice in the proceeding by concealing the defence offered against the preliminary made and thereby robbing the judgment of any legal adjudicatory character. Since May 15, 2009 that the application was made, it was alleged that the Court of Appeal stalled the case until September 28 before beginning to hear it. Similarly, Ahamba is also asking the Court of Appeal to set aside its judgment on the appeal filed by David Umaru of ANPP against the election of Muazu Babangida Aliyu as governor of Niger State for alleged inconsistencies.
He is not alone. Onyema Ugochukwu and Chinwendu Nwangaga, the PDP gubernatorial candidate and his deputy are also approaching the Court of Appeal to take a second look at and set aside its judgment of February 11, 2009, upholding the election of Governor Orji and Chris Akoms, his deputy.
They are requesting that another panel be set up to hear the appeal.
According to them the unanimous judgment of the Court of Appeal was delivered without jurisdiction and in breach of the petitioners’ right to fair fearing and therefore a nullity. The Court of Appeal struck out all the 23 grounds in the notice of appeal on the ground that Ugochukwu having argued, on one hand, that the April 14 gubernatorial election result in Abia has not been declared cannot raise a petition against the same result. The argument is that the legal implication of this is that there was no subsisting appeal against the trial tribunal’s judgment. Ugochukwu’s counsel argues that the Court of Appeal used a petition that was not before the court and for which they were not heard to strike out its appeal. They argue that this was done out of jurisdiction and therefore a nullity. The Appeal Court had unanimously held that E.E. Enabor was not the right person to have declared the Abia State governorship result and therefore that the valid result had not been declared. Yet in another breath the same court returned Orji and Akoms as validly elected based on the same results it earlier ruled had not been legally announced.
That is not all. The Ugochukwu camp is also contesting the Court of Appeal’s definition of who is a public officer who should resign at least 30 days to the election. They are arguing that the trial tribunal was right in holding that Orji, a permanent secretary and chief of staff to former governor, Orji Uzo Kalu, and Akoms, a commissioner in the same government are public officers and ought to have resigned. They are also insisting that the meeting of retired Justice Joseph Umoreen with the judges in their chambers on the morning of the judgment before the judgment was to the benefit of their opponents. Umoreen was to later sit on the same platform with the justices when they delivered their judgment. Eyewitnesses testified that he had arrived the court in the company of Clement Ebri, then PPA chairman.
Another area of controversy was the hand written judgment delivered by the justices, which the panel chairman could not read coherently without help. Justice Ibiyeye explained to the courtroom that it was for “security reasons” but it is alleged it was because it was not the original judgment that was written according the standard rules that was finally delivered. When TELL asked the Appeal Court president to react to that he expressed surprise that the judgment was hand written and said that it was irregular (see interview). According to him, the procedure is that at the close of hearing the members of a panel sit in a conference and decide the judgment, which could be unanimous or split. Then the judgments are written and typed. A date is set for the judgment where the agreed judgment is read, type written. In the case of Abia, it now being contested that what the judges later typed and now serves as the official record was not the hand written judgment that was read but an edited version. It took the court about a month after the judgment to produce the type written version. And to worsen the controversy, till date they have refused to produce a certified true copy of the hand written judgment they delivered.
It was found that the “security reason” Ibieyeye gave for the hand written judgment may have been to avoid a leak of the judgment. And that was not the only time the Appeal Court would deliver hand written judgment for the same reason in an electoral case. Earlier, the Court of Appeal sitting in Jos had delivered the judgment on the appeal filed by Alhaji Alhaji, the ANPP candidate in the senatorial election in Benue State against the election of David Mark, the Senate president, from hand written scripts.
It was also found that at times there could be deviation from what was arrived at at the conference due to financial inducement. For instance, in the Enugu saga which NJC waded into, the chairman of the panel changed the agreed unanimous judgment to a “minority judgment” and wrote a new judgment two days to the judgment in favour of the candidate who lost. It was a case in Anambra State where three days after results of the 2003 national assembly election was declared and certificates were issued, the electoral officer called a press conference where he withdrew the certificate of returns and issued them to two other people who did not participate in the election. The two aggrieved persons, Ugochukwu Uba and Ikechukwu Abana went to the election tribunal which gave them judgment but on appeal, the Court of Appeal sitting in Enugu attempted to reverse the trial tribunal’s judgment and sustain the illegal change of candidates by the electoral officer. But midway into the judgment the tension in the courtroom erupted into an uprising and the justices ran away to save their lives.
In that dramatic case, in a five-member panel appointed by Justice Abdulahi to handle the petition, two could not sit – one was ill and the other was abroad. Three: Okechukwu Opene, David Adeniji and Justice Akah were left to hear and decide the matter. At the conference the three judges agreed unanimously that the judgment of the trial tribunal correct. Akah was chosen to write and read the judgment. However, two days to the judgment, Opene, the chairman of the panel, meet Akah and asked that the agreed decision be re-examined. Akah refused and he found himself a minority as Adeniji joined the chairman. He chose to read a ‘minority judgment’, which was actually the unanimous judgment. At the judgment, Opene announced to the court that Akah would read the minority decision, which he called “his opinion”, first, contrary to the rule that requires that the majority decision be read first. However, as Opene was reading his “led judgment”, the crowd in the court got the drift of his judgment and rose in revolt. The Court of Appeal ruled that there was no judgment and set up another panel. But the victims wrote a petition to NJC. Even then president, Olusegun Obasanjo, was so embarrassed that he too petitioned the chief justice of the federation over the case. At the end, Opene and Adeniji were found guilty and removed. It was found that money had changed hands.
The Osun State Election Tribunal is still enmeshed in a scandal over allegation of bribery in the 2007 gubernatorial election petition filed by Rauf Aregbesola. Call and short messages record of the judges showed there may have been unprofessional relationship between, Kunle Kalejaiye, SAN, lead counsel of Governor Olagunsoye Oyinlola and Justice Thomas Naron, chairman of the trial tribunal, and the others justices.
The Ondo State 2007 gubernatorial election petition tussle between Olusegun Mimiko of Labour Party, and Olusegun Agagu of PDP finally ended in favour of Mimiko. It is alleged that both parties may have given ‘logistics’ to the judges to sway the judgment in their favour. Mimiko lost at the tribunal stage and won on appeal. Some sources alleged that the judges were not happy with Agagu because as then governor of an oil producing state, he performed below expectation.
In the emerging scenario, judges take bribes from both parties to an election petition and give judgment to the highest bidder. Lawyers complain that “even when you have a good case you still have to settle to make assurance doubly sure”, or you will be in deep trouble. That was what happened to governors Liyel Imoke of Cross River State, and Timipre Slyva of Bayelsa State in the election petitions against them. Both men believed they had good cases and did not settle. Moreover, the trial tribunal had ruled in their favour. It came as a shock to them when the Court of Appeal nullified their election and ordered a re-run, which they eventually won. There was the case in the southwest where the judges sent a message to a governor whose case was being heard complaining that “we have not seen you.” The governor replied that he would ‘see’ them after the judgment. In another instance, another Southwest governor in bid to secure favourable judgment offered bribes to top officials in the presidency. One of the officials he contacted is said to be close to the Appeal Court president. After all he did, he still lost the case. After he lost the final case he allegedly complained to a top person in the presidency that the judiciary is very corrupt and are complicating issues. He said if he had known he would have allowed justice to take its natural course.
The Ogun State case is still a bitter memory in the hearts of the parties to the case. One party allegedly gave $2m while another tripled it to $6m. The deal was brokered by a highly respected former attorney general of the federation. And judges do not return the money of the party they decide to rule against. “They take the money and wipe their mouths”, lamented a lawyer. This may soon make judges targets of kidnap and of assassination by aggrieved parties who paid for favourable judgment and still lost their cases. That is known as a double cross in business parlance.
In the last ten years of democracy, the judiciary has become a money mill and only the very rich can get ‘justice’. Only in rare cases has the Supreme Court dusted up the sagging credibility of the judiciary with a few land mark judgments. There is hardly any election petition case where there was no allegation of bribery. The justice ministry has not helped matters either as allegations of bribery and corruption dog the tenure of Michael Aandoakaa as attorney general and minister of justice. It was gathered that a top PDP leader once complained to the president that the AG is a very “controversial man” and the President agreed. He allegedly said the AG is the most corrupt AG the country has produced. Then he asked Mr President why despite knowing that the AG still keeps his job. It is suspected that Aandoakaa still keeps his job because of the role he played to ensure that the President won at the Supreme Court.
It is not only in election cases that the judiciary compromises justice. The pathetic case of Fred Alasia, a radical former lecturer of the University of Port Harcourt and a whistle blower shows that even in ordinary cases justice is denied to the common man through different devices by judges to suit their friends, club members or the highest bidder. In Rivers State, young lawyers complain that you have to belong to a particular fraternity to make progress in your career by winning cases in court. Alasia instituted over four cases in court since 1997, and 12 years after none of the cases is anywhere near being determined . In some of the cases the judges have been changed five times to frustrate him. This has forced him to conclude that, “The judiciary is no longer the last hope of the common man.”
The high price that lawyers charge in Nigeria for election cases is attributed to the ‘logistics’ involved. The success of SANs at election cases is alleged to be dependent on their ‘connections’ as the judges only accept money from dependable sources. Another factor considered by judges before accepting money for judgment is a “safe payment plan”, that will not be discovered. Recently, judges are increasingly depending on trusted third parties to warehouse their illegitimate earnings. This became necessary after the scandal of bribery of judges that sat on the 2003 election petitions in Akwa Ibom state in Ime Umana of ANPP Vs Victor Attah of PDP. Large sums of money were traced to the accounts of the judges by the Investigative Panel set up by the CJN to investigate Umana’s petition against the judges. Today judges are now wiser to avoid forensic investigations. It was also found that lawyers about to retire are most likely to compromise justice for money in other to retire in comfort.
Against this ugly threat to true justice in Nigeria, Ahamba’s recommendation that “The Judiciary needs to do an Internal Cleanup” becomes inevitable, or else people may resort to jungle justice.
Ends.
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