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Court fixes March 25 for judgment in suit against Airtel

Justice Mufutau Olokoba of the Lagos High Court, Igbosere, will on March 25, deliver judgment in a N50million suit by a telecoms firm, Globacell Nigeria Ltd, against a Global System for Mobile communication (GSM) service provider, Airtel Nigeria.

Written addresses will also be adopted on that day, the judge said.

Globacell asked the court to determine whether a subsisting contract between it and Celtel Nigeria Ltd (now Airtel Nigeria) empowers the communication giant to receive payment for recharge cards without supplying them to the claimant.

The firm also wants the court to determine whether the contract empowers Airtel to unilaterally cancel the Ongoing Revenue Service Commission (ORSC) agreement between them without recourse to it.

The court is also to decide whether an affirmative answer to the issues will not entitle Globacell to be granted judgment as per its writ of summons and statement of claim.

Airtel, on the other hand, wants the court to determine whether the subsisting agreement between it and Globacell was governed by a letter dated September 14, 2006 or a Distribution Agreement dated February 25, 2008.

It also wants the court to determine whether it reserves the right under the agreement to increase or reduce Globacell’s ORSC-backed credit facility, and whether Globacell is entitled to its claims.

Globacell, through its lawyer, Mr Sunny Omoragbon had sought an order compelling Airtel to restore its existing ORSC-backed credit facility worth N3.8million, which it alleged the GSM company cancelled illegally.

It also sought an order compelling Airtel to pay it N2.6 million, being daily earnings of N75,000 per day that it makes from sale of recharge cards, from May 27 till June 30, 2008, “and the same amount until judgment is delivered.”

The court is also to order Airtel to pay interest of 25 per cent on the sum until judgment is delivered, and thereafter at the rate of 30 per cent until it is liquidated.

Globacell urged the court to order the GSM company to pay it N50million as damages to cover the alleged trauma, embarrassment, loss of income and business opportunities suffered by its Managing Director, Mr Mark Davies “as a result of the unilateral cancellation of the ORSC agreement by the defendant.”

Besides, it wants a declaration that Airtel’s alleged refusal to release the stock of recharge cards it paid for amounts to a wrongful and illegal cancellation of the ORSC-backed credit facility “and therefore constitutes a breach of the agreement between parties.”

Globacell claimed that Airtel granted it the ORSC facility of N1.1million through a September 14, 2006 Offer Letter, and that due to its excellent performance, the facility was increased to N2.3million on February 9, 2007.

Airtel, therefore, owed it the fiduciary duties of acting in good faith and acting in Globacell’s best interest, ensuring that the facility is not disrupted, stopped or cancelled without just or reasonable cause; that it supplies the claimant the cards it paid for, and that it is given “the mandatory 24 hours notice of the defendant’s intention to cancel the ORSC credit facility.”

The claimant told the court that it paid N2,434, 705 to place an order for 2,500 units of N1,000 Recharge Cards and 50 units of N3,000 Bumper cards on the basis of the “expanded ORSC arrangement.”

Globacell said it should have been entitled to a stock of cards worth N2.5million in line with the agreement, but to its disappointment, Airtel said it had overstretched the credit limit, and that the facility had been slashed by 70 per cent.

The claimant said there was no basis for Airtel’s arbitrary slashing of the facility, as it never overstretched its credit limit, nor did Airtel inform it of such development.

The claimant further averred that based on Clause 11 of the agreement, Airtel ought to give it a mandatory 24-hour notice before it could cancel the agreement.

Failure to do so, Globacell said, engendered “serious dislocation of, and disruption to,” its business, “with attendant negative chain reactions associated therewith.”

However, Airtel denied Globacell’s claims, saying that the “ORSC-backed credit facility or any other credit facility extended to the claimant has been fully utilised by the claimant.”

The defendant added that the credit facility covered by the Offer Letter of September 14, 2006 had a tenor of 60 days, and had long expired before Globacell allegedly placed the order for the recharge cards.

Besides, Airtel informed the court that with the entry of a Distribution Agreement of March 1, 2008, the Offer Letter or any other prior agreement no longer had any binding force on the parties, as the facility had expired by effluxion of time and lost its legal force.

It said it never acted arbitrarily toward Globacell nor acted in breach of the terms of the Offer Letter, and that it was not under obligation to give the claimant any mandatory 24-hours’ notice.

Airtel said Globacell is not entitled to its claims, and prayed the court to dismiss the suit in its entirety or strike it out with substantial cost.

February 18, 2014
Guide to judgment writing

From the inquisitive nature of man flows the desire to know what is in the mind of others. This is particularly so when the actions of those others are capable of affecting our lives in one way or the other. The judge occupies such a position as his pronouncements during adjudication affects numerous lives. The ability to predict the outcome of a case by visualising it as a judge thus becomes desirable. In a different light, knowing the mind of a judge is key to legal comprehension as the knowledge of how judges do decide, or should decide cases is of essence to understanding law itself. These have found expression in judicial reasoning, which is ‘the process by which a judge reaches a conclusion as to the appropriate result in a case and to the written explanation of that process in a published judgment’. The fact that two seemingly similar cases may not produce the same outcome and the fact that the result of legal disputes subject to adjudication is not predictable has made it necessary for subjects of the law to understand how the mind of the judge works.

Understanding the mind of the judge will involve going on a philosophical and jurisprudential voyage and this is what this book has done in twelve chapters.

Judicial Reasoningm a 12-chapter book was published by by the Nigerian Institute of Advanced Legal Studies (NAILS). It discusses the concept of judicial reasoning by exploring the thought of a judge and what influnces during judgments.

The first chapter, written by Peter Ademu Anyebe is titled: Stares Decisis: Step to Conclusion. He explains stare decisis as a step to conclusion, noting that principles established by previous cases are not inviolable. It elucidates that the doctrine to stand by a precedent is a principle of decision making and not a rule and as such needs not be applied when the precedent at issue is badly reasoned. The approaches taken by the courts in deciding whether to overrule a precedent are discussed in this chapter. The expository nature of this chapter is seen when the writer enumerates the factors that guide the courts in overruling precedents while citing some notable instances where precedents have been overruled.

The second chapter is titled: Judicial Reasoning and Personal Idiosyncrasies and is written by Dr. Adebisi Arewa. The writer argues here that the most significant responsibility of the judiciary is fidelity to the law and adjudication of cases in accordance with the law. While agreeing that the attitudes and beliefs of judges are critical determinant factors of their decisions, the writer posits that the attitudinal perspective is an element of the extra legal paradigm of judicial decision making. He writes: “All legal systems have their criteria for determining legality and or legitimacy of judicial decisions. These criteria include constitutional and statutory enactments judicial precedent and the formal and legal process for establishing them, and informal norms and social values which are indeterminate, inexact, subjective and of low justificatory value and often confined in the subconscious where they nevertheless impact on judicial reasoning and decision. Once the rules of validation are clearly stated, each factor whether formal or informal can then be ranged against such rules pursuant to determining their legitimacy ad legality, for the purpose of judicial reasoning and judicial decision making.”

This chapter reveals that contrary to the portrayal of judging as a value free, detached and dispassionate process predicated on facts and legal precedents, that extra-legal factors such as psychological, attitudinal and social background play significant role in the judicial decision making process.

Chapter three, written by Dr. Francisca E. Nlerum, is titled: Towards Substantive Justice in Nigeria. It discusses the concept of substantial justice by first positing that the court is able to provide substantive justice through stating the law, providing fair trial, acceptable outcome and ultimately, constraining and directing human behaviour. She said the structure of the substantive law, rule and procedure has direct implication on the perception and construction steps necessary to provide substantive justice. The exercise of discretion by the courts is examined in this chapter as the writer writes “… the exercise of such discretion is controlled and manipulated by the structure and function of substantive law, rule ad procedure upon which the discretion is exercised. The judge’s ability to exercise fair discretion by being impartial and objective is called to question and such burden places on him an expectation to produce consistent result …”

Addressing the extent at which extraneous conditions can be resorted to in order to qualify as judicial activism, this chapter examines landmark cases such AG Bendel State v AG Federation & Ors, AG Federation v AG Abia State & Ors, Plateau State of Nigeria & Anor v AG Federation, Amaechi v INEC among others. It concludes by acknowledging that substantive justice can only be promoted by judicial activism.

Chapter four titled: Research and Judicial Reasoning, written by Ige Adeola Olabomi, shows the nexus between legal research and judicial reasoning. It says that research plays an important role in recommending solutions to existing problems of the society particularly in judicial reasoning. The reader is informed of doctrinal legal research which is concerned with the formulation of legal doctrines through the analysis of legal rules. This chapter analyses the sources of legal research in Nigeria and the writer likens research in judicial reasoning to scientific research. According to the writer “…the more nearly we are able to predict what decision will be made by the courts on a given state of facts, the more nearly do we approach to a scientific and civilized jurisprudence… ”

Chapter five is titled: Analysis of Brief of Counsel and is written by Osatohanmwen Eruaga. The writer in this chapter x-rays the concept of brief of counsel by considering the various types of briefs there are, and when they may be used in appeal process as well as what is expected of a brief by the court. Well versed in legal history in Nigeria, the chapter traces the history of brief writing in Nigeria. The writer discusses the concept and importance of brief of argument through citing and reporting of required cases as well as the Supreme Court Rules. Going through the cases, this chapter discusses the structure and contents of briefs of arguments. The chapter is particularly enriched by rulings of learned justices explaining brief of arguments as well as the contents. One of these as quoted by the writer is on the brevity of a brief where the Supreme Court stated per Oputa JSC in Engineering Enterprise v Att. Gen. Kaduna. “As the name implies, a brief should be brief. It should be short enough to be attractive yet long enough to cover the substance …” Still on the length of briefs, the writer cautions on restrictions. She writes “… restricting the number of pages in the brief of argument as done in some jurisdictions such as the United States, would affect negatively the brief system in Nigeria by exposing the system to more “empty” or faulty briefs provided within the limits as provided.” The chapter concludes by reinforcing the need for counsel to attach the same level of seriousness the court displays when producing the brief by adhering to the general rules of brief writing.

In Chapter 6 ,which is titled: Prophesy of the Courts written by Suzzie Onyeka Oyakhire, the definition of law as the prophecies of what the courts will do is scholarly analysed. The chapter reasons that this lay the foundation for the 19th century reliance on the doctrine of judicial precedents which has influenced legal thinking and which also is the crux of the legal systems of common law jurisdiction including Nigeria. Through identifying and analyzing arguments in favour of and against the prediction premise of judicial precedents, the writer examines the idea behind the prophesies of the courts.The writer considers the binding effect of the judgments of the court which until they are appealed and reversed by a higher court, remain the law and govern the affairs of subjects. She writes “A classical example of judicial precedent which has set the foundation for the principle of negligence in the law of torts is the decision of Lord Atkins in the case of Donoghue v Stevenson. This decision has formed the crux of determining the liability of the neighbor who owes a duty of care to another and breaches that duty of care. Since the decision of the court in that case it is apt to conclude that the bad man and the society at large can predict that if he acts in a way that causes injury to his neighbor, he would be liable under the law of torts.” (p.138). The writer identifies judicial activism as one of the factors which challenge the prediction theory as judges do not only apply the law as it is but sometimes extend it and at other times create new ones. The role played by ratio decidendi in the judgment of the court is analysed in this chapter as the writer identifies that when faced with similar fact cases, a later court may give different reasons for arriving at a particular conclusion notwithstanding that the cases were tried with exactly the same law. She cites the instance of the proliferation of conflicting decisions arising from election petitions in Nigeria and cites the cases of Ugwu v Ararume and Amaechi v INEC as examples. This chapter canvasses that while the importance of ‘prophesy of the courts’ cannot be undermined, its characteristics as a tool for absolute prediction is however questionable. The chapter examines this in the light of judicial activism, contradictory and dissenting precedents and more importantly with the instrumentality of statutes which may alter the validity of previous predictions.

In Chapter 7 titled: Specialisation as a factor in Judicial Reasoning, Prof Animi Awah infers that judicial reasoning depends not only on legal imperatives but also on social philosophy, moral imperatives and political justification. This has made judges to continue being generalists even when the courts are specialised. The reason for this, according to the writer, is the fact that law is no longer restricted to the traditional issues any more but cuts across all discernible areas of human endeavours. The chapter examines the theories of judicial reasoning; it discusses specialisation and brings out the impact of specialisation to judicial reasoning. In the light of specialisation movements in the legal sector which has found its way into the court system whereby there are creations such as the National Industrial Court, specialist tribunals, and divisions specialising in different areas, the writer as a poser asks whether specialisation impacts on the quality of service and service delivery in the sector, what expertise in judicial adjudication means and whether specialisation impacts judicial reasoning process. Acknowledging the difficulty in deciphering the issue of expertise and specialisation, the writer notes “As a safe measure therefore, reference to specialisation will refer to the judge that sits over specialized cases or specialised court dealing with specified subject or related subjects while the generalist judge would refer to that judge who sits in a court of “unlimited” jurisdiction and adjudicating over any matter that comes before him irrespective of subject matter.”

The writer examines the pros and cons of judicial specialisation while citing examples of specialised adjudication. This chapter concludes that proper evaluation of the substance of cases and good use of interpretation skills and other aids to judicial reasoning can better guarantee the goal of the justice system than mere subject matter expertise.

Chapter 8 titled: Elevated Thought Process in Judicial reasoning, is written by Uchechukwu Ngwaba. Recognising that thought is a very significant factor in understanding judicial reasoning, it discusses it, stating that judicial reasoning is an elevated thought process. The chapter examines the different theories of judicial reasoning, which have arisen as a result of the disagreements about the reasoning process of judges. The writer analyses the various theories, namely the formalism, intuitionism and determinism. An important question of whether there can be any theoretical basis to explain the construction of human thought is asked. This chapter uses a philosophical approach to address the issue.

He writes: “Revisiting the postulations of the scholarship on judicial reasoning, we notice that despite their divergent claims, a common ground is the understanding that in judicial reasoning, the ultimate objective of the judge is to do justice.”

The writer says justice is not tangible or conscious. He explains that a judge’s reasoning embodies a method distinct from judicial decision making.

In Chapter 9 titled: Logicality and Clarity of Judgments, is written by Nkiruka Chidia Maduekwe, access to justice is described as being tied to access to judgments. He analyses the essence of a logical and clear judgment, discusses importance of logic in judgments, warning that the art of thinking should not be confused with logic. It analyses the importance of clarity and logic in judgments as being essential tools in producing accessible judgments. It also sufficiently explains how the absence of clarity in judgment has far-reaching consequences on adjudication. The writer proffers some recommendations which will help to improve the quality of judgments.

Chapter 10 is titled: The Judicial Doctrine of Pith and Substance and written by Adejoke O. Adediran. It examines the doctrine of pith and substance as created by the court in connection with judicial review of legislation is made. Tracing the history of the doctrine, the chapter discusses how it came about under the Canadian law by being developed by the Canadian courts.The purport of the doctrine in a federal system of government is discussed as well as what the courts usually determine in ascertaining the pith and substance of a case. Citing the purpose of the legislation and the legal effect of the law as instrumental in ascertaining the pith and substance of a case, the writer states that the court takes cognizance of both extrinsic and intrinsic evidence.

On the judicial interpretation of the doctrine in Nigeria, she writes: “ …in a federal system where the legislative powers of legislatures are different, there is likelihood of encroachment by a legislature in the legislative field of another. The courts have always examined the law examined the law enacted vis a vis the legislative power contained in the constitution in order to determine whether such encroachment is merely incidental or substantive. The courts in Nigeria have applied this rule in a number of cases, although they might not expressly indicate that the rule is being applied.” The writer cites cases whereby the courts have applied this doctrine such as Attorney-General of Federation v Attorney-General of Lagos State, Attorney-General Abia v Attorney-General Federation, Attorney- General Lagos State v Eko Hotels ltd, among others. The essence of the doctrine as an effective means of interpretation of statutes in situations where enactments prima facie seem to be ultra vires is adequately discussed in this chapter.

Chapter 11 is titled ‘Extra Legal Deductibles: A Search for the Fine Line between Law and Nuances’ and is written by Judith Chukwufumnanya Rapu. This chapter recognises the importance of the duty of the judge whose claim to power the writer claims is multi- faceted; first the nature of his office and secondly, the lives and destinies of several persons lie in the pronouncements he makes.

January 14, 2014
Hezbollah,Thisday bombing: Court reserves judgment

Justice Adeniyi Ademola of the Federal High Court, Abuja has reserved judgment in the cases involving three Lebanese and their two companies; and an alleged Boko Haram member, Mustaphar Umar.

The Lebanese – Mustapha Fawaz, Abdallah Tahini, Talal Ahmad Roda – and their companies – Amigo Supermarket and Wonderland Amusement Park Abuja – are being tried for alleged complicity in the illegal importation and storage of prohibited arms and ammunitions.

They are being tried on a 16-count charge of terrorism and related acts in connection with the last discovery of a large cache of arms and ammunition in a residential property in Kano.

Umar is being tried for his alleged involvement in the 2012 bombing of a building- SOJ plaza in Kaduna, which is occupied by three media houses, including Thisday, The Sun and The Moment newspapers.

Yesterday, Justice Ademola reserved judgment after parties adopted their final written addresses.

In the case involving the Lebanese, Acting Director Public Prosecution of the Federation, Simon Egede adopted for the prosecution, while Robert Clarke adopted for the defence.

Clarke argued neither Hezbollah nor its military wing, to which his clients were alleged to have belonged, has been declared a terrorist organization in the country.

He queried whether it was proper, under the court’s law to try the accused in Abuja, when the evidence before this court showed that the alleged offence was committed in Kano, about 500km away.

Clarke queried “whether the mere possession of foreign currency by the 2nd accused (Tahini), without further evidence to show how he acquired the money, was sufficient to charge a person under money laundering Act”.

Clarke submitted that the non physical presentation and production of the alleged cache of weapons has denied the judge the opportunity of determining whether the weapons were actually sophisticated armoury used by terrorists or mere toys.

He argued that what was tendered in evidence before the court were mere photographs, which according to him posed credibility question.

He denied the presence of the accuseds when when the photographs were taken in the house where the arms were recovered at No 3 Gaya Road Kano.

“This is a criminal trial where allegations should be proved beyond every reasonable doubt. The reason why no credibility should be attached to the photographs is that the accused persons were not around when they were taken, Clarke said.

Clarke cautioned that convicting the accused persons would pitch Nigeria against the international community, particularly Arab nations.

This, he said, was because Hezbollah is not an outlawed organisation in Nigeria and “there is no official gazette to that effect.

“Since there is no gazette before the court showing the declaration of Hezbollah as a terrorist organisation in Nigeria and your Lordship is not the President of Nigeria, the situation therefore draws the carpet for counts one to six to fail because you cannot build something on nothing.

“Before your Lordship can convict the accused persons, it is compulsory that the court will declare Hezbollah and its military wing as a terrorist organisation. But then, it is only the President of Nigeria that has the constitutional power to make such declaration” Clarke argued.

He urged the court to discharge and acquit the accuseds

Egede objected to the issue of non physical production of exhibits 7A (alleged weapons) raised by Clarke.

“It is a new issue raised this morning in court, it was not canvassed. Therefore, I urge the court to discountenance it as it was not premised on any legal authority or decision of any superior court” Egede said.

He argued that the tendering of the photographs and video CDs in evidence were supported by Section 26(1) and Section 31(3) of the Terrorism Prevention Act (TPA).

He reminded the court that the prosecution had made moves to move the court to Kano to see the recovered arms, but it declined.

On whether Hezbollah has been declared a terrorist organization in Nigeria, Egede argued that Section 40 of TPA has defined the term terrorist organization and that there was no need fro any presidential declaration or gazette in this case as far as the organisation’s activities fall within the definition of terrorism act as contained in Section 40.

Egede also argued that under the new amendment, Section 19(g) of the TPA, 2013, the said Act recognised international conventions which have equally defined terrorism acts, pointing out that as signatory to the convention; the provision applies in the country.

Justifying the power of the court to hear the case, Egede argued that Section 32(1) stipulates that the Federal High Court located in Nigeria, regardless of where terrorism offence was committed shall have jurisdiction to entertain such case.

He urged the court to convict the accused persons on all charges and sentence them accordingly.

In relation to the second case, Nureini Suleiman adopted for the defence while S.M. Labaran. Adopted for the prosecution.

While Suleiman prayed the court to free his client on the ground that the prosecution was unable to prove its case, Labaran urged the court to convict as the prosecution has sufficiently proved its case.

October 22, 2013
PDP to appeal judgment against Nwoye

The leadership of the Peoples Democratic Party (PDP) has vowed to appeal the court judgment that voided the candidacy of Tony Nwoye, its candidate for the November 16 governorship election in Anambra State.

Briefing reporters after the party’s weekly National Working Committee meeting yesterday, its National Publicity Secretary, Olisa Metuh, affirmed that Nwoye remained the PDP’s candidate.

Metuh said the party leadership had directed its legal team to challenge the ruling against Nwoye, saying there was no way the party could change its candidate for the election.

According to him, the party had submitted Nwoye’s name to the Independent National Electoral Commission (INEC) as its candidate for the election.

“The party has nominated Amachukwu Ezike as Nwoye’s running mate for the election and had also submitted his name to INEC,” Metuh said.

A Federal High Court in Port Harcourt on Tuesday voided Nwoye’s candidacy, saying he was not qualified to participate in the primary election that produced him.

Justice S.A Aliyu ruled that Nicholas Ukachukwu was the authentic candidate of the PDP and ordered Nwoye to stop parading himself as the party’s candidate. The judge also restrained the PDP from fielding Nwoye for the election.

September 19, 2013
Appeal Court sets aside judgment in Lead City varsity case

The Court of Appeal, Ibadan yesterday set aside the judgment of a Federal High Court, Ibadan asking the National Universities Commission (NUC) to recognise the Law programme of Lead City University, Ibadan.

The court had, in a judgment delivered on July 26, 2011, ordered the NUC and the Council of Legal Education (CLE) to conduct an accreditation exercise for the Law programme within 60 days, having earlier approved the programme and conducted an accreditation exercise but without the input of the CLE.

But the commission appealed the judgment on five grounds and urged the court to set aside the judgment, alleging miscarriage of justice.

It also argued that the judgment by the lower court was a consent judgment, adding that the plaintiff, who is a graduate of the Law programme, lacked locus standi.

In the judgment that lasted three and a half hours, the three-member panel presided over by Justice M. B. Dongban-Mensem, said the appellate court resolved four of the five grounds in favour of the appellant and consequently allowed the appeal, while setting aside the judgment.

The judgment was prepared and delivered by Justice C. N. Uwa. She also read the consent of the presiding justice and that of Justice A. Dauro to her judgment.

A graduate of the Law programme, Rev. Segun Alli, sued the commission and the Lead City University in 2009 when the NUC declared that the Law programme of the university was not accredited.

He said the declaration caused him loss and brought him public odium, having spent five years studying hard to qualify as a lawyer.

He added that he encouraged a parent to send his daughter to Lead City University to study the course.

The High Court granted his prayers and ordered the NUC and the CLE to conduct a fresh accreditation exercise within 60 days.

But reversing the judgment yesterday, the appellate court faulted the former judgment on the strength that Alli does not have the locus standi because the dispute, if any, was between the NUC and the university. The court said Alli could not claim that he was a graduate of Law from the Faculty because the programme was not yet fully accredited by the NUC.

Consequently, the appellate court held that Alli could not rely on an illegal right to enforce a claim or right.

“Since he lacks the capacity to sue, the lower court lacks the jurisdiction to entertain the matter,” the judge said.

The court said NUC did not fault Lead City on the question of facilities, personnel or quality of teaching, but that the absence of the CLE in the 2008 accreditation exercise only made the exercise invalid in the face of the law and regulations guiding operations of the university system in the country.

Justice Uwa advised the university and the NUC to work together for the interest of the country’s education system, parents as well as students, who are studying hard to obtain recognised certificates.

Lead counsel to the appellant, Prof. P. E. Oshio, lauded the judgment and described it as a victory for obedience to law and regulations.

The first respondent, Alli, and counsel to the university also thanked the panel for a thorough job and pledged to study the judgment before knowing the next line of action.

August 1, 2013
Judgment leakage: Sacked Supreme Court staff may face prosecution

•Judicial Commission sends NJC’s probe report to the AGF

The five workers of the Supreme Court and the Court of Appeal who were recently sacked over the leakage of a judgment of the apex court stand the risk of facing trial for alleged corruption.

The Federal Judicial Service Commission (FJSC), it was gathered, has sent the report of the National Judicial Council to the Attorney-General of the Federation and Minister of Justice, Mr. Mohammed Bello Adoke (SAN) for the trial of the suspects.

The FJSC dismissed the five on July 4 on account of the leakage of judgment on the dispute between Senator Alphonsus Uba Igbeke and Lady Margery Okadigbo, on the Anambra North senatorial seat.

Axed were Russell Ndenu, Bada Kayode, Festus Ilurimi, Nathaniel Abraham, Olayinka Abiodun, all from the Supreme Court, and Stephen Izonebi from the Court of Appeal.

A source familiar with the matter said yesterday that the suspects “will still be arraigned in court for trial any moment from now. They have made useful statement to the NJC panel which established a prima facie case against them.

“The FJSC has sent a copy of the report of NJC’s investigation to the Attorney-General of the Federation and Minister of Justice, Mr. Mohammed Bello Adoke (SAN), for the prosecution of the suspects by the state.

“They also risk going to jail for violating civil service regulations and indulging in bribery.”

On the fate of the procurer of the judgment, the Supreme Court official said: “The police and other security agencies are expected to investigate and subject the suspect to the nation’s criminal justice system.”

July 21, 2013
Judgment leakage

•Apex court should look beyond the case of the dismissed six

The Federal Judicial Service Commission (FJSC) has dismissed five non-judicial staff of the Supreme Court and one from the Court of Appeal, for allegedly leaking an undelivered judgment of the apex court. Those accused of the ignominious conduct are Russell Ndenu, Bada Kayode, Festus Ilurimi, Nathaniel Abraham, Olayinka Abiodun, all from the Supreme Court, and Stephen Izonebi from the Court of Appeal.

The alleged leakage was in respect of the case between Senator Alphonsus Uba Igbeke and Lady Margery Okadigbo, over a senatorial election in Anambra State. According to the Chief Registrar of the Supreme Court, the leakage was allegedly masterminded by Senator Igbeke and Mr. Collins Okechukwu.

We condemn without equivocation the alleged misconducts of the court officials, who probably for pecuniary interests have exposed the judiciary to ridicule. While we commend the FJSC for quickly resolving the puzzle over who leaked the judgment, we urge it to conduct a thorough audit of its entire staff, to determine their integrity and fidelity to the positions they occupy. It may be necessary to seek experiences from other jurisdictions, on ways of securing the integrity of judgments as it traverses between the judges and their confidential supporting staff. There is also the need for a mechanism to monitor the members of staff to know those living above their means.

Unfortunately, similar allegations of leakage of judgments have been rife, particularly since the advent of politics, and until now, there has been little success in determining the culprits. We commend the Chief Justice of Nigeria, Aloma Mukhtar-led FJSC for acting promptly on this matter; but it also raises question why similar cases in the past appeared not to have been resolved as in the current case. Probably the mechanisms for such quick resolution were not in place, or the leadership in the past was not interested in determining the sources of such misconduct.

For the avoidance of doubt, we wish to inform the FJSC that tales of similar leakages and sale of judgments is usually rife over election cases, so the judges and the FJSC should therefore always be on guard. The non-judicial staff working in the courts must also be made to realise that they form part of the integrity of the judicial process.

While Senator Igbeke has taken an advertorial to deny his involvement in the leakage, it is of utmost national importance that the culpability of the senator and Mr. Okechukwu be subjected to the criminal justice system. The police and other security agencies’ job is made easier by the reported advertisement of the judgment before it was delivered. Whoever placed the advert has the responsibility to confirm to the police and the courts the source of the advertised undelivered judgment. In the overall interest of our judicial process, we urge the Attorney General of the Federation to take up the challenge to ensure that those responsible for this assault on the judicial process are brought to justice.

Of course the sacked staff of the two courts must also be subjected to a trial for the leakage. It will not be enough to just sack them, as their other colleagues may be tempted to follow the same path where the financial inducement is right. We also hope that the chief justice will continue her well received effort to heal the judicial process. It is unfortunate, but we wish to inform her that many Nigerians believe that justice can be purchased. This cynicism over the integrity of judicial process goes as far as the Supreme Court, and it is hoped that the efforts of the CJN would help to restore the lost grounds.

July 16, 2013
Appeal Court judgment on Ondo governorship poll

•Continued from yesterday

The Tribunal, at pages 3113 3114 of Volume 4 of the Records, found “as a fact that the 2nd Petitioner (Appellant) was given the 2012 Voters Register on the 20th of September, 2012, as stated by PWs 4, 5, 23 and 40” and thereafter stated:

Having got the 2012 Voters Register about one Month before the election took place, we agree with the 1st Respondent that all issues relating to the Voters Register 2011 as compared to the one of 2012 are purely pre-election issues over which the Tribunal vide Section 131(5) of the Electoral Act (over which this Tribunal) has no jurisdiction. See OLUYENNI V. ASHAOLU (2010) All FWLR (Pt. 522) 682 and IBRAHIM V. INEC (Supra).

A distinction must, however, be drawn between the 2012 Voters Register which as we have held is a pre-election matter and its use as at the October 20, 2012 election, a fact within our jurisdiction. Put differently, if the Petitioners chose to ignore the injections in the Voters Register as they did rather than challenge it before the Ondo State High Court or the Federal High Court, they can only complain before us of any electoral malpractice in the election using the Voters Register during the election and not before. To that extent the evidence of PWs 34 and 35 propelled on Exhibits P52 (A & B) and P55, P56 and P57 (A1 – A20) attempting to analyse the Voters Register will be irrelevant. The irregularities in the 2012 Voters Register were known to the Petitioners about one month before the election took place. If they felt the Register was/is, for the reasons they state, invalid, they ought to have challenged it before the appropriate Court. They cannot come before us to seek a nullification of the Register and by extension the election due to the injections in it. It is a different matter if they are able to prove that the illegal or injected voters voted.

Estoppel by conduct, under Section 169 of the Evidence Act, 2011 seems to be the prop of this reasoning of the Tribunal.

It is trite to state that parties are bound by their pleadings. The Petitioners now Appellants, pleaded that what the INEC gave them when they complained that attempts were being made to inflate the Voters Register by injection of illegal registrants was the soft copies of the Voters Register which they could not open, because they had no software to do so. INEC, the 3rd Respondent, admitted in paragraph 19(viii) at page 287 of their Reply that “at the meeting on the 20th September, 2012, soft copies of the Register of Voters containing 1, 654, 205 names of registered voters in all the 18 Local Governments of Ondo State, were given to representatives of all the political parties.” INEC further pleaded in paragraph 19(x) “that it is impossible for any 3rd party or any unauthorized person to access its data.” On the state of the pleadings, on this particular issue, it is perverse, as held by the Tribunal that “irregularities in the Voters Register were known to the Petitioners about one month before the election took place”

The Electoral Act 2010, as amended, by its Section 19(1) enjoins INEC to display for public scrutiny for a period of not less than 5 days and not more than 14 days “and during which period any objection or complaint in relation to the names omitted or included in the Voters’ Register or in relation to any necessary correction, shall be raised or filed”. There is no evidence that INEC complied with statutory commandment. There is however overwhelming evidence that INEC used this Voters Register in the Election. My understanding of the provisions of Section 19(1) of the Electoral Act, particularly the words “display for public scrutiny” is that the National Assembly intended that it is the hard copies or printed copies of the Voters Register that should be published by displaying same in a public place(s) for viewing and/or scrutiny. This, of course, excludes giving soft copies that can neither be opened nor accessed by the representatives of political parties. Transparency is obliviously the main objective of the provision of Section 19 and 20 of the Electoral Act.

The only reason the Tribunal discountenanced “the evidence of PWs 34 and 35 propelled on Exhibits P52 (A & B) and P55, P56 and P57 (A1 – A20)” at page 3114 of the Record is the perverse finding that the petitioners had knowledge of the contents of the Voters Register at least one month before the election. There is no evidence that the contents of the Voters Register in its soft copy were known to the Petitioners. There is also no evidence that copies of the Voters Register were displayed for public scrutiny, as directed by the Electoral Act. In the similar view there is no evidence that the printed or hard copies of the Voters Register were made available to the Petitioners to justify or warrant the finding by the Tribunal that they were aware of its contents one month before the election.

It appears to me that what the Tribunal has stated at pages 3113 – 3115 of the Records, in its judgment, is what while the making of the Voters’ Register is a pre-election issue; the use made of its contents is a post-election issue. that is what I think the Tribunal means by the statement: A distinction must, however, be drawn between the state of the 2012 Voters Register, which as we have held, is a pre-election matter and its use at the October 20, 2012 election, a fact within our jurisdiction.

The grounds for questioning an election are eloquently stated in Section 138(1)(b) of the Electoral Act, 2010, as amended. It includes “non-compliance with the provisions” of the Electoral Act. The Electoral Act is the only enabling statute for compilation and use of the Voters’ Register. By dint of Section 138(1)(b) of the Electoral Act, where it is alleged that the Voters Register, used in the election the subject of the Petition, was improperly compiled or not properly compiled in compliance with the Electoral Act, and that it was done to give undue advantage to one of the parties, and that the Voters Register was used to conduct the election; then I think, in my humble view, that Section 138(1)(b) Electoral Act, 2010 has been invoked. By the said Section 138(1)(b) of the Act, therefore, the election Tribunal, Including the instant Tribunal, has jurisdiction to entertain such a complaint. After all compliance, as stated by I. T. Muhammed J.S.C in OJUKWU Vs. YAR’ADUA (2009) 12 NWLR (PT. 1154) 50 AT PAGE 140 B – C is ordinarily “an act of complying or acting in accordance with wishes, requests, commands requirements, conditions or orders. It is an act of yielding or conformity with the requirements or orders”. The learned jurist then concludes that where there is non-compliance, it postulates reversal of such definitions.

In tandem of this simple definition of compliance or non-compliance, it is my view that an election conducted using Voters Register not compiled in accordance with or in compliance with the provisions of the Electoral Act will, in the circumstance, fall within the jurisdiction of the Election Tribunal under Section 138(1)(b) of the Electoral Act, 2010, as amended. The national Assembly, through the Electoral Act, has not given the Independent National Electoral Commission (INEC) free hand or powers to conduct elections any how or in any arbitrary and capricious manners. All powers vested in INEC to conduct elections, including compilation of Voters Register, are circumscribed and must be exercised in compliance with the Electoral Act.

The Supreme Court, the majority view, held in OJUKWU Vs. YAR’ADUA (Supra) that non-compliance without more may not be sufficient to invalidate an election. One of the issues in the case is a declaration that the arbitrary failure of INEC to display copies of the Voters Register in the manner and form commanded by the Electoral Act, 2006. The Presidential Election Tribunal entertained the petition and dismissed it on the merits. There is a similar issue in the petition, the subject of this appeal. In my humble view the tribunal, in the instant appeal, was not right when it held that it has no jurisdiction to entertain issues bordering on non-compliance of the Voter Register with the Electoral Act. The register, criticized for its non-compliance with the Act, was used in the election.

For the record the complaint of the Petitioners in this appeal are twofold, viz: (i) That the registration/injection of more names into the Voters Register was done secretly or surreptitiously and that it was not publicized, and (ii) That the Voters Register to be used in the October 20, 2012 was not displayed or published for public scrutiny as required by Section 19(1) and 20 of the Electoral Act, 2010.

It should be noted that the Petitioners are not questioning the powers of INEC, under the Electoral Act, to continually update the Voters Register.

The law is now settled that a Petitioner who challenges the election of a respondent, as this 1st Respondent, on ground of non-compliance with the provisions of the Electoral Act must plead not just the fact of the alleged non-compliance, he must go further to plead that the non-compliance had substantially affected the result of the election. See OJUKWU Vs. YAR’ADUA (Supra) at (pt. 910) 241; YUSUF Vs. OBASANJO (2005) 18 NWLR (PT. 956) 96.

I do not think that there is any dispute about the figures. (i) Total number of registered voters in the 2011 Voters Register is put at 1,553,580 (ii) Total registered voters in the 2012 Voters Register were 1,654,205. (iii) The difference between figures in (i) & (ii) above is 100,725.

These undisputed figures are the bench mark.

The Appellant submit that the PW.35, through his Exhibits P56 and P57, established that over 164,072 were unlawfully injected into the 2012 Voters Register. If the balance of 100,725 is, arithmetically, the difference between 1,654,205 and 1,553,580 figures in 2012 and 2011 Voters Registers respectively, then the calculation of PW35, the expert, appears preposterous, outlandish and perverse. The wise Counsel in FAYEMI Vs. ONI (2009) 7 NWLR (PT. 1140) 223, as rightly submitted by Chief Olanipekun SAN of counsel to the 1st Respondent is worth heeding to. At Pages 276 – 277 of the Report the admonition goes thus:-

“The court must be weary of admitting a report prepared by an expert, not at the instance of the court but at the behest of any of the parties to the dispute. Such a report must be taken with a pinch of salt (See WAZIRI Vs. THE STATE (1997) 3 NWLR (PT. 496) PAGE 689)”.

The PW.35 was seriously discredited by the cross-examination of 3rd Respondent’s Counsel. The PW34, who also under cross-examination, had admitted that he was briefed, upon a fee “to look for evidence to sustain the petition that was already filed” was rightly dismissed as not being credible objective expert witness whose evidence would be of any assistance to the Tribunal. The evidence and reports of these two witnesses, PWs 34 and 35, were intended to prove that the non-compliance of INEC with in Electoral Act, in the compilation and use of the 2012 Voters Register, had substantially affected the outcome or the result of the election conducted on 20th October, 2012. The findings of fact by the Tribunal that the PWs 34 and 35, and their reports are unreliable are findings that the appellate court does not readily interfere with, unless they are perverse. In the instant case the findings are not perverse as the printed evidence show. The Tribunal had adroitly evaluated the evidence of these two expert witnesses. The same manner of evaluation of evidence was done as regards other witnesses on the sundry acts of non-compliance complained of.

The Appellants in paragraphs

7.05 and 7.06 at pages 27 – 28 of

their brief submitted that “since the Tribunal found that there were unlawful injections, the effect ought to have been a total invalidation and nullification of the Voters Register and the Election conducted thereon”. The law, as I stated earlier, is: it is not enough to plead and prove non-compliance with the provisions of the Electoral Act; the Petitioner is further enjoined to plead and prove that the non-compliance alleged had substantially affected the outcome or result of the election: OJUKWU Vs. YAR’ADUA (Supra); BUHARI Vs. OBASANJO (Supra); YUSUF Vs. OBASANJO (Supra). The Appellants have not proved how the non-compliance by INEC, in the compilation of the Voters Register and its use in the 20th October, 2012 election had substantially affected the outcome of the said election. The Election Act deliberately directs Tribunal and Courts in election matters not to disturb returns made, unless non compliance with the Act has substantially affected the result of the election and the return. See Section 139(1) of the act.

There were other allegations of none or improper accreditation, over-voting, plural voting, and sundry electoral malpractices and non-compliance. I repeat that it is not enough to adumbrate these facts that tend to establish that the election was not conducted in a free and fair manner as directed by the Electoral Act. The Petitioner who alleged all these acts of electoral malpractices has the additional burden of pleading and proving that these malpractices did in fact impact substantially on the final outcome of the election. Section 139(1) of the Electoral Act, 2010, as amended is very clear when it provides:

“139(1) An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act, if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the provisions of this Act and that the non-compliance did not substantially affect the result of the election.”

The discretion vested in the Tribunal or Courts by this provision is judicial; which discretion has to be exercised judicially and judiciously.

The law reports are now replete with statements of our superior courts espousing the law as in Section 139(1) of the Electoral Act, 2010. They are all to the effect that the non-compliance must be shown to have substantially affected the result of the election. See AJADI Vs. AJIBOLA (2004) 16 NWLR (PT. 898) 91 AT 170 – 171; ADEBIYI Vs. BABALOLA (1993) 1 NWLR (PT. 267) 1; BUHARI Vs. INEC (2009) ALL FWLR (PT. 459) 419 AT 525; etc. The most recent on this by the Supreme Court, interpreting Section 139(1) of the Electoral Act, 2010, is CPC Vs. INEC (2011) 18 NWLR (PT. 1279) 493 AT 544 – 545, 573 – 574. Since failure to prove this vital or material fact is very fatal to any election petition, one expects Petitioners and their counsel, when formulating or settling election petitions, to be very conscious of this charge to Election Tribunals or courts under Section 139(1) of the Electoral Act, 2010 an amended, and/or its equivalent provisions in other statutes. It does not help the judicature and the course of justice for Petitioners to rush to court to challenge the election or return therefrom on grounds of non-compliance without seriously addressing the issue of the non-compliance not substantially affecting the outcome of the election. The court are quite congested by flimsy election petitions.

•To be continued

July 10, 2013
Appeal Court judgment on Ondo governorship poll

Being the text of the judgment delivered by Justice Ejembi Eko, JCA, on July 1, 2013 at the Court of Appeal, Akure, in the governorship litigation between the Action Congress of Nigeria (ACN) candidate, Mr. Rotimi Akeredolu (SAN), and Governor Segun Mimiko.

ON being text of the judg-ment delivered by Justice Ejembi Eko, JCA, on July 1, 2013 at the Court of Appeal, Akure, in the governorship litigation between the Action Congress of Nigeria (ACN) candidate, Mr. Rotimi Akeredolu (SAN) and Governor Segun Mimiko.

October 20, 2012 The Independent National Electoral Commission (INEC), the 3rd Respondent in this appeal conducted Governorship Election in Ondo State. The 1st Appellant, a candidate sponsored by the 2nd Appellant, Action Congress of Nigeria (ACN), contested the election with other candidates, including the 1st Respondent, Dr. Rahman O. Mimiko, who was sponsored by the 2nd Respondent, the Labour Party (LP). On October 21, 2012 INEC declared and returned the 1st Respondent as the winner of the election.

Dissatisfied with the declaration and/or return of the 1st Respondent by the INEC the Appellants filed their petition challenging the return of the 1st Respondent on 9th November, 2012 at the Governorship Election Tribunal sitting at Akure, Ondo State (hereinafter called “The Tribunal”). The petition is at pages 1- 150 of the Record.

The Respondents filed their respective replies to the petition. The Reply of the 3rd Respondent, at pages 276 – 342 of the Record, was filed on 30th November, 2012. The 2nd Respondent filed its Reply on 3rd December, 2012. It is found at pages 343 – 387 of the Record. The reply of the 1st Respondent is at pages 389 – 589 of the Record. It was filed on 10th December, 2012.

At the close of the pleadings the petition went into trial before the Tribunal. The Appellants called a total of 41 witnesses, including two expert witnesses. The 1st Respondent called 14 witnesses. The 2nd and 3rd Respondents called no witnesses. The counsel for the respective parties, at the close of the evidence, filed and exchanged their respective written Addresses, which they later adopted as their argument in the petition. In its considered judgment, delivered on 3rd May, 2013, the Tribunal dismissed the petition in its entirety; hence this appeal. The Appellants filed a total of 38 Grounds of Appeal in the Notice of Appeal copied at pages 1775 – 1796 of Vol. 3 of the Records.

Briefs were filed and exchanged by the parties through their counsel. The Appellants’ main brief was filed on 4th June, 2013. In addition the Appellants filed Reply Briefs in response to the briefs filed, each, by the 1st, 2nd and 3rd Respondents. The three Reply Briefs were filed on 12th June, 2013. These briefs and the main Appellants Brief were all adopted as the arguments/submissions of the Appellants in the appeal on 25th June, 2013 at the hearing of the appeal.

The 1st Respondent’s Brief, filed on 7th June, 2013, was adopted as the argument of the 1st Respondent in the appeal. Before then, the 1st Respondent had, on 7th June, 2013, filed Notice of Preliminary Objection wherein a number of the Appellants’ grounds of appeal were attacked. The Preliminary Objection was argued in the 1st Respondent’s Brief. Chief Wole Olanipekun, SAN moving the Preliminary Objection had urged us to strike out the defence grounds of appeal, the particulars in some of the grounds of appeal and the issue formulated for determination of the appeal wherein the defective grounds were included. Chief Akin Olujinmi, SAN of Counsel to the Appellants, relying on the S.P.D.C V. AMADI (2011) 6 SCM 183 at page 196, in response, submitted that preliminary objections are filed against the hearing of the appeal, with the view and aim of terminating same; and that there are other grounds which can sustain the appeal the proper procedure is to come by way of motion on notice praying for an order striking out the defective grounds of appeal. Notwithstanding the vehement opposition of Chief Olanipekun, SAN, on the ground that Order 10 Rule 1 of the Court of Appeal Rules, 2011 does only provide for the respondent to file preliminary objection, and not the other way round, I am in complete agreement with Chief Olujinmi, SAN on this. If the Notice of Preliminary Objection is a process in the appeal and it is for any reason, on points of law, not one that can be countenanced; then it could be objected to. I need not belabor the issue. The Supreme Court in S.P.D.C. V. AMADI (Supra) at page 196 has settled the issue when per Rhodes-Vivour, it states the law thus:

Preliminary objections are against the hearing of an appeal, and so, once it succeeds, the appeal no longer exists. All too often we see preliminary objections filed against one or more grounds of appeal. Once there are other grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a Notice of Motion seeking to strike out the defective grounds of appeal should be filed.

This statement of law, in view of Section 287 (1) of the 1999 Constitution, as amended, binds this Court and the parties. The matter therefore, rests there. The Notice of Preliminary Objection filed by the 1st Respondent on 7th June, 2013 and argued in the 1st Respondent’s Brief of Argument filed also on 7th June, 2013 will not be countenanced since it purports not to terminate the entire appeal, but only some grounds of appeal in the Notice of Appeal.

The 2nd Respondent’s Brief, filed on 7th June, 2013 was adopted at the hearing of this appeal on 25th June, 2013 by Yusuf O. Ali, SAN as the argument of the 2nd Respondent. Dr. Onyechi Ikpeazu, SAN of Counsel to 3rd Respondent formally adopted the Brief of the 3rd Respondent, filed on June 7, 2013 and prayed, like the counsel respectively for the 1st and 2nd Respondents, that the appeal be dismissed.

The Appellants’ Brief, filed on 4th June, 2013 containing arguments on which Chief Olujinmi, SAN urged us to allow the appeal, has a total of 13 issues for determination as follows:-

Whether the Tribunal was right in rejecting the expert evidence of PWs 34 and 35 and failing to rely on the Exhibits tendered by them and admitted in evidence. (Grounds 21, 22, 23, 25, 35, 36).

Whether the Tribunal having held that there were injections into the 2012 Register of Voters used for the conduct of the October 20, 2012 Governorship Election was right in declining jurisdiction to consider the allegation on the use of the invalid Voters Register to conduct the 2012 Election on the pretext that they were pre-election matters. (Grounds 8, 9, 11, 18 and 19).

Whether the evidence of improper accreditation and non-accreditation of voters during the Election placed before the Tribunal vide EXHIBITS P52A & P52B and testimony of PWs 34, 40, 41 were not cogent enough to justify the nullification of the election conducted on 20th October, 2012. (Grounds 2, 12 and 17).

Whether the Tribunal properly evaluated the evidence before it and came to the right conclusion particularly when no rebuttal evidence was given and several facts were corroborated by documentary and oral evidence of the 1st Respondent witnesses. (Grounds 4, 5,6 and 38).

Whether failure of the Tribunal to properly review the evidence and evaluate it before making its findings has not engendered serious miscarriage of justice. (Grounds 20, 28 and 29).

Whether the evidence on record did not sufficiently establish allegations of irregularities and various acts of non- compliance with the Electoral Act and regulations made pursuant thereto to justify nullifying the election in dispute. (Grounds 3).

Whether the Tribunal was not wrong when it failed to hold that the petitioners through the evidence led have met the standard of proof required to establish the allegations contained in the petition. (Grounds 31 and 32).

Whether having regard to pleadings, the evidence and the law, the petitioners have not discharged the burden of proof placed on them. (Grounds 10 and 14).

Whether the Tribunal was right in its application of the decision of the Court of Appeal to discountenance and expunge evidence already properly admitted by it. (Grounds 7 and 16).

Whether the Tribunal was right to have

discounte-nanced evidence relating to

the paragraphs of the petition struck out having previously held that the petition would be heard on its merit and in any case having regard to the paragraphs of the respondents’ replies which accommodated the evidence. (Grounds 1 and 30).

Whether the Tribunal was right in dismissing the petition when the copious evidence led by the petitioners’ witnesses was neither rebutted nor challenged. (Grounds 13, 24, 26 and 33).

Whether in the light of its earlier holding that the petitioners did not dump documents on the tribunal, the materials on record and the law, the tribunal was right when it later held that some documents were dumped on the tribunal and that the petitioners did not demonstrate the electronic copies of 2011 and 2012 voters registers. (Grounds 15, 27 and 34).

Whether the in the light of the pleadings of the parties, the evidence led by the Petitioners and the failure of the 3rd Respondent to give any evidence, the Tribunal was not wrong in the way it considered the issue relating to the injected voters. (Ground 37).

On the other hand, the 1st Respondent at pages 6 & 7, particularly paragraph 3.1 of his brief formulated two issues for determination. They are:

“Whether the lower tribunal was not right when it relied on its own earlier decision of 4th February, 2013, which has been affirmed by the Court of Appeal in appeal number: CA/AK/EPT/GOV/04/13, in discountenancing paragraphs 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 45, 46, 48,49, 51, 55, 71, 80, 81, 85, 86, 87, 88, 91, 146, 149 and 181 of the Appellants’ petition, as well as the evidence led in support thereof (Grounds 1, 7, 16 and 30).

Considering the grounds of the Appellants’ petition, the extant state of the pleadings and the evidence in support thereof vis-à-vis the state of the law on the burden and standard of proof as well as the relief sought in the Appellants’ petition, whether the trial tribunal was not right in dismissing the Appellants’ petition and affirming the election and return of the 1st Respondent (Grounds 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 27, 29, 31, 32, 33, 34, 35, 36, 37 and 38).”

The 2nd Respondent has distilled three issues for determination. They are as follows in paragraph 3.00 at page 3 of the said brief:

Whether the trial Tribunal was not right in its conclusion that the Appellants did not proof improper or non-accreditation, improper voting, non-compliance with the provisions of the Electoral Act, and sundry other allegations made by them, and that the election was held in substantial compliance with the provisions of the Electoral Act, 2010 (as amended).

Whether the trial Tribunal was not right in its view that the testimonies of PWs 34 and 35, apart from being incredible or unbelievable, will not qualify as expert testimonies, having regard to the facts and circumstances of the case, moreover, when the testimonies did not prove the allegation of injection of fresh or illegal names into the voters’ registers, on which the Tribunal had no jurisdiction.

Whether the trial Tribunal was not right that the Appellants failed to prove the various allegations of electoral malpractices in the conduct of the Ondo State Governorship elections of 20th October, 2012.”

For the 3rd Respondent the three issues formulated for determination of the appeal are at page 7 thereof as follows: “Whether the Learned Tribunal rightly rejected the testimony of PW34 and PW35 and their respective reports in Exhibits P55….

Whether the learned judges of the Tribunal were right to have held that issues bothering on the state of the voters register of 2011 as compared to that of 2012 are pre-election matter covered by Section 31(5) of the Electoral Act 2010 and totally outside the jurisdiction of the Honourable Tribunal.

Whether in the light of the pleadings of the parties and the evidence on record, the learned Tribunal was not right to have dismissed the Appellants’ petition.

I have read all the briefs of argument and the proceedings of the Tribunal, including the pleadings and the judgment. In my humble view the issues for determination in this appeal are:-

Whether the Tribunal was right to have held that issues bordering on the contents of the Voters Register are pre-election issues and therefore not within its jurisdiction?

Whether the Tribunal was right to have held that the Appellants did not prove that the Ondo State Governorship Election of October 20, 2012 was not conducted in substantial compliance with the letters and spirit of the Electoral Act, 2010, as amended?

Whether on the pleadings and evidence of all the parties the Tribunal was right to have dismissed the petition?

• To be continued

July 10, 2013
Al-Mustapha: Appeal Court reserves judgment

The Court of Appeal, Lagos Division, yesterday reserved judgment in an appeal filed by Major Hamza Al-Mustapha and Lateef Shofolahan, challenging the death sentence handed them by Justice Mojisola Dada of a Lagos High Court.

Al-Mustapha, former Chief Security Officer to the late Gen. Sani Abacha and Shofolahan, ex-Personal Assistant to Alhaja Kudirat Abiola, were sentenced to death on January 30 last year for conspiracy and murder of Alhaja Abiola.

Justice Amina Augie, who led the appeal panel, reserved judgment after counsel to the appellants and respondent adopted their written briefs.

Counsel to Al-Mustapha, Joseph Daudu (SAN), while adopting his address, urged the court to allow the appeal and set aside the judgment of the lower court.

He argued that the trial court erred in law by basing its judgment on the testimonies of the prosecution witnesses (PW1 and PW2), which were contradictory.

“The testimonies of PW1 and PW2 were inconclusive and contradictory. The court drew inferences from these contradictory statements to establish the guilt of the appellant.

“It is my submission that these inferences, upon which the court based its judgment, are merely political evidence formulated by the respondent, which the trial court ought not to have considered.

“I, therefore, urge the court to allow this appeal and quash the judgment of the lower court,” Daudu said.

Shofolahan’s lawyer, Olalekan Ojo, aligned with Daudu’s submission.

He accused the trial judge of being patronising, adding that she discontenanced every submission put forward by the defence, while the evidence presented by the prosecution were admitted.

He said: “It is obvious that the trial judge was sourcing for evidence at all cost to convict the appellant.

“The evidence of the star witnesses PW1 and PW2 had been described as not credible by the Court of Appeal. So, I wonder why the trial court held that the evidence were relevant.”

Counsel to the state government, Lawal Pedro (SAN), urged the court to dismiss the appeal and uphold the judgment of the lower court.

He argued that besides the evidence of PW1 and PW2, there were other evidence from the defendants, which supported the counts of conspiracy and murder.

He said the statements of the defendants, which were tendered as exhibits, indicted them.

Pedro urged the court to dismiss the appeal for lack of merit.

The appellants were arraigned in October 1999 on a four-count charge bordering on conspiracy and murder of Abiola, the winner of the June 12, 1993 election, in 1996 in Lagos. They were sentenced to death by hanging.

They appealed against the lower court’s judgment 24 hours after it was passed, praying the court to overturn it.

The appellants contended that the death sentence was unwarranted, unreasonable and a manifest miscarriage of justice.

They argued that the trial judge erred in law by concluding that they conspired to kill Alhaja Abiola on June 4, 1996.

The appellants faulted the judge’s treatment of the contradictory statements of Barnabas Jabila (aka Sgt. Rogers) and Mohammed Abdul.

They also faulted the court’s reliance on the testimony of Dr. Ore Falomo on the bullet extracted from the deceased.

According to the appellants, the court’s rejection of portions of Jabila’s testimony, which favoured them and applying only in areas that did not favour them was a gross miscarriage of justice.

Al-Mustapha submitted four grounds for determination. Shofolahan premised his appeal on five points.

June 11, 2013