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Tag: litigants

  • Will litigants get justice at election tribunals?

    After the elections, the Elections Petitions Tribunals become the forum for aggrieved candidates and their parties. Will the litigants get justice there? ADEBISI ONANUGA asks.

    Election tribunals are special purpose vehicles for thrashing out poll disputes. They will soon become busy. Inaugurating in Abuja the tribuals which will handle disputes that arise from this year’s elections,  Acting Chief Justice of Nigeria (CJN) Justice Ibrahim Tanko Muhammad urged them to be above board.

    No fewer than 250 judges were nominated to serve on the tribunals.

    According to Justice Muhammad, the task of adjudicating on petitions would affect the judges’ conscience. He enjoined them to rise above temptations, do justice in accordance with the law and remain loyal to their oaths.

    At a “Workshop on election petitions for judges’’ in Abuja where he was represented by the President of the Court of Appeal, Justice Zainab Bulkachuwa, Justice Muhammad said: “This is an enormous national assignment that will literally put the contents of your conscience to test. As judicial officers, you may have, one way or the other, trodden this somewhat dreaded terrain, but you must, against all odds, rise above the murky waters of failure and infamy.

    “The onus is on you to keep aloft the banner of honesty and integrity that the judiciary has painstakingly hoisted over the years. Your appointment to serve in these tribunals is well conceived, thus, you should do everything within your ability to justify this confidence.

    “There is no doubt that you will be exposed to different forms of temptations and even blackmails but you should know that all are aimed at testing your strength of character, honesty and integrity.”

    The issues

    In determining petitions, issues, such as delay in the dispensation of election disputes, fair hearing and justice and limitation of time set for hearing and dispensation of petitions have resulted in heated arguments and bogged down the tribunals.

    Delays in disposing of petitions

    Delays in the dispensation of electoral disputes has become a big issue in the electoral process as counsels deploy various tactics and file many frivolous applications to frustrate petitioners, leading to prolonged hearings. This is compounded when they seek order of the tribunal to inspect ballot papers and other materials used for the elections and INEC is not easily forthcoming

    Fair hearing

    The application of fair hearing has also created problems in the determination of electoral disputes. Despite that Section 36 (1) of the constitution guaranteed the right of every person to fair hearing, its application in resolving electoral disputes have created a lot of problems for election tribunals, which are expected to judge within a reasonable time in accordance with the principle of natural justice.

    Period to file and dispose of petitions

    Section 285 (5) of the 1999 Constitution (as amended) stipulates that an election petition must be brought within 21 days of the declaration of election results. While Section 285 (6) requires that an election tribunal must deliver its judgment within 180 days of filing a petition.

    However, the issue as to whether a specific time should be stipulated for conclusion of election petitions has always generated heated debates among practitioners, judges and politicians alike.

    Attempts to resolve the issue has always resulted in formulations of various legal positions leading to adjournments.

    This is because access to relevant election documents and other materials by the candidates in the election for petition has been a challenge owing to high fees charged by the Independent Electoral Commission (INEC) before issuing certified true copies.

    As the country sets for Presidential and National Assembly elections on Saturday and governorship and state assembly elections two weeks after, there is no telling the volume of petitions that would be filed by candidates and their respective political parties, challenging the outcome of the elections. The acrimonies and mudslinging that characterised the campaigns have prepared the ground for petitions.

    But what manner of judges are to sit over the petitions. What are the expectations? What are the pitfalls to be avoided. What are the mistakes of the past that the tribunals must  avoid this time around and how best should they handle the assignment entrusted on them and make a success of it?

    Lawyers’ expectations

    Legal practitioners, particularly those versed in election petitions, lend their views on the matter. They include Ahmed Raji (SAN), law lecturer, Faculty of Law, University of Lagos (UNILAG), Akoka and Constitutional lawyer, Wahab Shittu, Constitutional lawyer, Ike Ofuokwu, member, Ogun State Judicial Service Commission, Abayomi Omoyinmi and  Committee for the Defence of Human Rights (CDHR) President, Malachy Ugwummadu.

    Raji hoped that the election would be free, fair and credible, such that the various tribunals won’t have much to do as is the case world over. He however lamented the volume of petitions arising from elections over time.

    He said: “I am yet to read of any democracy with our volume of election petitions. While other legal regimes are improving to make their legal regime business friendly, ours is bogged down with election related matters to the great detriment of important commercial cases.

    “It is so bad that even the Constitution has given undue priority to even pre-election matters by giving time limit to the courts just like election petitions thus causing damaging delays in other matters.

    “Not even matters concerning the only source of our revenue-(oil) enjoy any special attention from our courts thus discouraging some major investors or forcing them to settle for alternative dispute resolution outside Nigeria. It is very sad.”

    Shittu noted that the https://mail.google.com/mail/u/0/images/cleardot.gif responsibilities entrusted into the hands of the tribunals are grave, challenging and patriotic in the realm of nation building and sustenance of the democratic traditions.

    Shittu said the tribunals have a duty to ensure that pre-primary, primary, post primary as well as elections disputes brought before them are promptly resolved within the time frame allotted satisfactorily with the principles of justice and fair play to all the sides involved in the disputes.

    He said the tribunals should be conscious  that resort to them is anomalous. lf there is genuine internal democracy in the parties and if elections are free, fair, peaceful and credible to the satisfaction of all, recourse to the tribunals will of course be unnecessary, consequently should note that they owe a duty to uphold the popular will of the people in the decisions handed down.

    He advised: “Substantial justice as opposed to rigid adherence to technicalities should be the rule rather than the exception in the decisions of the tribunals.  It is important that persons appointed  to serve as judges in the tribunals should be men of high ethical and professional standards in terms of integrity, competence, character, credibility and capacity with Zero tolerance for corruption.

    “Such persons must be highly knowledgeable with capacity to control and effectively take charge of the proceedings having regard to the time frame within which the Tribunals are set up to adjudicate disputes brought before them”.

    The law lecturer took into cognizance events of the past  and advised members of the tribunal on the pitfalls that must be avoided for them to make a success of their assignment.

    He advised them on the need to avoid undue delays of the proceedings, reliance on undue technicalities at the expense of substantial justice and to ensure zero tolerance for corruption and avoiding likely compromise of the cases

    Shittu further admonished the tribunal members to avoid the antics and shenanigans of the political elite who are ever willing to compromise the process. He stressed the need for them to ensure that timelines for the  resolution of the cases, mastery of the laws – constitutional provisions, the electoral act provisions, the constitutions of political parties and guidelines for the conduct of primaries and elections

    He urged them not to allow themselves to be misled by counsel and pressures from politicians and ensuring that decisions are promptly handed down and to avoid nocturnal meetings and telephone conversations with counsel and litigants among others.

    “One other mistake to be avoided include conflicting judicial pronouncements as well as needless ex-parte orders that could prejudice the merits of the elections and the conduct of credible poll.

    “Making a success of their assignments require integrity of the process by all stakeholders – politicians, counsel and tribunal members who must all be committed to the attainment of justice. Attitude is everything.These stakeholders must be committed to strengthening our democracy through ensuring a transparent process.

    “Dispassionate application of the extant laws- to the justice of the cases will enthrone public confidence and strengthen the popular will which are the hallmarks of the democratic traditions.

    “Above all, timelines and zero tolerance for corruption, including attitude of counsel, would deliver effective and efficient results that would meet the expectations of all”, stressing, “the integrity and credibility of the work of the tribunals should never be compromised”.

    Ofuokwu added: “Despite the misgivings about the circumstances that led to the suspension of the CJN, Walter Onnoghen, which seems to cast aspersions and raise credibility issues over the integrity of the tribunal members, we have very high expectations of them to be fair, impartial and conscientious in the discharge of their duties.

    “This will restore the integrity of the judiciary which has been badly battered of recent times.

    “Otherwise, what is left of the judiciary’s integrity will be totally obliterated.”

    According to Omoyinmi, the various tribunals should be synthesised of judges with high level of integrity, partinacious and knowledgeable in election petition proceedings, because election petition are sui- generis. I believe that such persons should include mostly judges who sat in previous election tribunals, who had experience in the day to day proceedings of the hearing of election petition as it is often the case when hearing in the petition commence.

    Omoyinmi, however, said: “There should be restrictions as to the number of supporters of the candidates/party that are allowed to attend the tribunal sittings and even the venue, this is because the huge number of supporters affect and distract proceedings sometimes.

    “The tribunal must adhere to time of sittings, even where necessary petitions is heard on weekends as it’s often the case sometimes.”

    He said it is important that all parties involved have a level-playing field with equal opportunities to present their petitions regardless of the parties and or their counsel.

    “There is this perception by litigants and their supporters that counsels sometimes take advantage over others, especially where very senior advocates are involved.

    “Once the credibility of the election petition tribunal judges is not in doubt, and they are seen to be above board and very firm in control of their courts and proceedings, the decisions and pronouncements of the tribunals will be credible and acceptable.”

    Ugwummadu said the judges appointed to serve in the election tribunals, apart from being people of very high principles, standards and integrity, must also be persons of sound knowledge of the law, both procedural and substantive laws.

    “They must be driven by a deep sense of justice and fairness focused on the advancement of the society, which is the utmost beneficiary of justice,” he said.

    Ugwummadu advised that the tribunal must creatively find a way to guarantee that the usual, but avoidable delays by petitioners in accessing election materials for litigations should be removed to secure easier access to justice. Besides, the law has not yet been imposed on the election management body the responsibility to justify their actions in the conduct of the election.

    He said the notion and percentage of corruption in the judicial system must be confronted and erased. The appointment of ill-equipped judicial officers along ethnic line and for clear nepotism should be discouraged.

    He emphasized speed, diligence and effective control of the proceedings of their tribunals  as the diminius litus of their court.

  • Frustrated litigants groan over endless appeals

    For many litigants, the appellate courts have become a source of frustration and lamentation. Besides the inefficiency of the system which is bogged down by a tedious process, appeals, though constitutional rights, are deployed by unscrupulous litigants to frustrate other parties. All manner of issues go on appeal, overwhelming the appellate courts. With the process fraught with corruption and inefficiency, the challenges appear to have defied solution. Legal experts, however, have suggested ways out, writes JOSEPH JIBUEZE.

     

    A former Akwa Ibom State Commissioner for Youth and Sports, Imo Udo, will not forget his experience at the Supreme Court in a hurry. Either through deliberate frustration or act of sabotage, he hit a brick wall.

    Udo ran against Mr Godswill Akpabio during the 2011 governorship primaries under the Peoples Democratic Party (PDP). Akpabio won.

    Udo claimed that Akpabio was not qualified to contest the primary election because he allegedly did not pay tax for the three previous years in line with PDP’s guideline.

    While Udo was slogging it out in court, Akpabio was sworn in as governor. The case was still pending in court as Akpabio won a second term.

    Udo’s case got to the Supreme Court but was never heard. When it eventually came up, it was struck out.

    The case began when Udo sued Akpabio at the Federal High Court, claiming that the defendant did not show proof of tax payment.

    He argued that there was no evidence that Akpabio was exempted from the payment of personal income tax.

    The court, in its judgment, held that it had no jurisdiction to determine the case.

    Dissatisfied, Udo appealed to the Court of Appeal, Calabar. The appellate court held that for his complaint to be justiceable, it ought to have occurred the day the primary election was held.

    Udo took his case to the Supreme Court on January 24, 2014, praying the court to disqualify Akpabio and to overturn the Court of Appeal judgment.

    But, the case was not listed for hearing until about a year later. This was despite several requests by Udo’s lawyer that it be listed.

    It took a formal complaint to the then Chief Justice of Nigeria (CJN), Justice Aloma Mariam Muktar, for Udo’s case to be listed.

    Justice Muktar directed Udo to file an application for accelerated hearing.

    Udo said the CJN’s directive got to his lawyer 36 days after it was dispatched by the Head of Litigation.

    When the case came up for the first time on December 17, 2014, the panel of justices further adjourned it till April 20, 2015 for hearing.

    Worried that Akpabio’s tenure would soon expire, he sought the intervention of the new CJN, Justice Mahmud Mohammed, for an earlier date, but the CJN said he could not interfere.

    Udo said he was shocked when on April 20, 2015, an entirely new panel was constituted to consider the case even when there was no petition against the earlier panel handling it.

    The new panel, rather than go on with the hearing, dismissed the appeal suo moto (without prompting).

    Udo said the justices’ excuse was that they “did not have time to write judgment on the case.”

    “The panel rose and I went back home unheard and my appeal unattended to even though it was ripe for hearing and determination by the Supreme Court for over a year and six months before the 20th of April 2015,” Udo lamented.

    In an affidavit in verification of his petition, Udo said his lawyer, Adebayo Adelodun (SAN), was asked to withdraw the case or it would be struck out.

    He wondered why the accelerated hearing notice was not dispatched to him on time; and why a new panel was constituted to hear the case when there was no petition or complaint against the first panel.

    “Was the Supreme Court playing pranks on me when on the 17th day of December 2014, the court pleaded with my counsel to accept a four-month adjournment on the grounds that the case would be determined on the next adjourned date?

    “If the reason for dismissing my case was truly lack of time to do the work they are paid to do, why did the same court, on the 27th day of April and the 26th day of May of the same year (more than a month later) consider other political matters and gave judgment on them?” Udo wondered.

    His battle to have the case re-listed and heard on merit is still ongoing.

    Udo could consider himself fortunate that his case was eventually listed, although it took a petition to the CJN for an action to be taken.

    But it was struck out for not justifiable reason.

    Endless appeals

    Udo’s experience captures what many litigants through at the appellate courts where cases last as long as 10 years or more.

    Mr Okon Johnson, now in his 70s, and about 859 others were engaged as security personnel sometime in 1990 by Mobil Producing Nigeria Limited.

    In 2000, a dispute arose about their status. Mobil claimed it engaged them as supernumerary (SPY) police personnel and not full staff.

    The workers sued at the Federal High Court, Uyo, Akwa Ibom State. The court entered judgment in their favour in 2006.

    Mobil appealed the decision at the Court of Appeal, Calabar.

    In a unanimous judgment on May 21, 2009, the Appeal Court held, among others, that the Nigerians were Mobil’s employees.

    Mobil appealed to the Supreme Court in 2010. Although many of the affected workers have died, the appeal is still pending at the Supreme Court, seven years later.

    Alhaji Garba Mohammed Gadi was the Deputy Governor of Bauchi State. He was impeached in controversial circumstances in August 2009. He challenged his impeachment up to the Supreme Court.

    His appeal was filed on October 22, 2013. Unfortunately, the appeal was not heard until Alhaji Gadi died on August 1, this year.

    Before tragedy struck, Dr. Mattias Oko Offoboche’s lawyers filed the appellant’s brief on October 15, 2010 in the appeal numbered SC. 224/2009. The respondents did not file any brief. The appellant died in 2015, about six years after lodging the appeal. It was never heard.

    A leading Lagos law firm, Strachan Partners, in a report titled: effect of appeals on course of trials, notes that the average lifespan of cases in Nigerian courts last no fewer than 15 years.

    According the firm, appeals take over 60 per cent of the time.

    It pointed out that cases take over 15 years at the appellate courts alone. For instance, the case of Ariori vs Elemo (1983; 1 SC 13) took about 23 years to be resolved.

    The case of Union Bank Nigeria Plc vs Ayodare and Sons (Nig) Limited was instituted at the High Court in 1989.

    After less than five years, it went on appeal. It was finally decided by the Supreme Court in 2007. Altogether, the case took 18 years to be resolved.

    A trial court gave judgment in the case of Adisa vs Oyinwola in 1985. It went on appeal the same year. It was not determined by the Supreme Court until year 2000. The appeal lasted for 15 years from the Court of Appeal to the Supreme Court.

    On December 12, 2006, the Economic and Financial Crimes Commission (EFCC) issued an interim investigative report and prepared a draft of 223 charges against former Rivers State Governor Dr Peter Odili, accusing him of embezzling N100 billion.

    On January 31, and February 26, 2007, at the twilight of his tenure, Odili approached two courts in the state capital where he filed two cases through his Attorney-General, Mr. Odein Ajumogobia (SAN).

    The case before Justice Ibrahim Buba of the Federal High Court also went into full trial and in a judgment delivered on March 20, 2007, Justice Buba upheld the plaintiff’s prayers. However, two months after leaving office, Odili again returned to Justice Buba’s court where he filed a suit in his personal capacity against the Attorney-General of the Federation and EFCC.

    The judge granted his prayers and restrained the EFCC from arresting, detaining, or prosecuting him. It also granted a perpetual injunction restraining the EFCC from using its interim report, which the court had earlier declared null and void.

    EFCC appealed to the Court of Appeal on the basis that the judge failed to distinguish between the period of constitutional immunity as a sitting governor and when he was out of office.

    The commission challenged the court’s position that everything Odili did while in office, including alleged acts of corruption was done in official capacity.

    The appeal is still pending.

    Presidential Advisory Committee Against Corruption (PACAC) chairman Prof Itse Sagay (SAN) said it was strange that the appeal was yet to be listed for hearing nearly 10 years after it was filed.

    “The case was filed at the Court of Appeal. The file number is there. For some strange reason, the Court of Appeal would not list it for hearing.

    “The whole thing is so obscured that it’s left the radar of cases. Each time the EFCC applies to find state of the case, we are frustrated,” Sagay said.

    The case of former governors

    It took nearly 10 years to determine the interlocutory appeals filed by some former governors against their trial. While the Supreme Court has decided some of the cases and trial resumed, others are pending. The former governors’ case show how slow the appellate process can be.

    Former Abia State governor Orji Kalu was charged with N3.2billion fraud soon after leaving office in 2007. He filed an interlocutory appeal. It took about nine years for the appellate courts to decide the case. Kalu was re-arraigned on September 27, 2016, nine years after he was first arraigned.

    Former Oyo State Governor Rashidi Ladoja was also first arraigned in 2007 on allegations of converting N4.7billion from the state. He obtained a stay of proceedings after filing an interlocutory appeal. It took over seven years before the Supreme Court decided the appeal. Ladoja was re-arraigned on December 14, 2016, eight years after he was first arraigned.

    The cases of other former governors are still pending on appeal. For instance, the EFCC accused former Oyo State Governor Adebayo Alao-Akala of conspiracy and misappropriation of N11.5billion.

    Four years ago, a High Court in Oyo State adjourned the case indefinitely after Alao-Akala’s lawyer, Lateef Fagbemi (SAN), informed the court about a pending appeal to challenge the lower court’s December 12, 2012 ruling that Alao-Akala had a case to answer.

    The interlocutory appeal is still pending at the Supreme Court.

    Similarly, the case against former Inspector-General of Police Sunday Ehindero is also pending. He was accused of using position to confer corrupt advantage on himself. He was charged in 2012.

    His appeal challenging the lower court’s ruling on a no-case submission was dismissed by at the Court of Appeal. Ehindero further appealed to the Supreme Court. The appeal is still pending.

    The overall effect is delays that the Judiciary is fast losing its fear factor.

    Ikeja Branch chairman of the Nigerian Bar Association (NBA) Mr Adesina Ogunlana said because they know there will be virtually no end to litigation, aggrieved persons are no longer keen to seek remedies in court.

    They would rather take laws into their own hands or leave matters to God, he said.

    Those who act with impunity are also not bordered about being sued. They know that after a minimum of five years deciding a case at the lowers courts, it would take even longer at the appellate courts, by which time an already done deed had become irreparably damaged.

    “It is a very sad commentary on the judicial system for people to tell you: ‘You can go to court’. They are not afraid of the courts because they know that the cases would never end. But they will never tell you to go to the press,” Ogunlana said, underscoring the fact the court of public opinion had become more preferable to the court of law.

     

    A presidential aide’s experience

    Special Assistant to the President on Prosecution Okoi Ofem Obono-Obla lamented that appeals are bogged down by “the inefficiencies and outright corrupt practices” of court officials.

    He alleged that court workers have turned the process into money making opportunities by attending to case files only when their palms have been greased.

    “To obtain a court ruling, you must pay through your nose; to obtain a certified true copy of a judgment, you must pay through the nose; to cause a court bailiff to serve a court process, you must pay through your nose. To get a case to be assigned after filing, you must pay through your nose.

    “Even in the Supreme Court, to get an appeal assigned for hearing, you must pay through your nose. The registries in the Court of Appeal and Supreme Court respectively are a study in chaos, disorderliness and confusion.

    “The court has refused to embrace Information and Communication Technology (ICT) to organise its registry in line with international best practices,” Obono-Obla said.

    Following Obono-Obla’s criticism of the inefficiency in the appellate process, the Supreme Court’s Chief Registrar, Mrs. Hadizatu Mustapha, wrote him on September 7.

    “His Lordship, the CJN, is desirous to make a positive change in the judiciary, hence he has requested that you please oblige the Honourable Court with details of all your pending or delayed appeals filed at the Court of Appeal and Supreme Court since 2007 to enable his office take the necessary steps to ensure redress,” Mustapha wrote.

    Obono-Obla obliged. In his September 12 response, he listed seven cases that had been hanging at the Supreme Court for near 10 years, and six which had been pending at the Court of Appeal.

    According to him, a notice of appeal in Chief Obono Egom & 7 Ors. Vs. Eno Omini Eno & Anor (numbered SC. 220/2009) was filed on June 1, 2006. Appellants’ brief was filed on August 6, 2009. Respondents’ brief was filed on November 30, 2009. Appellants’ reply brief was filed on January 29, 2010.

    Records from the lower court were transmitted and briefs settled, yet no date for hearing has been fixed for seven years.

    The appeal in Chief Akinwunmi Ricketts Vs. Cross River Property & Investment Ltd & Anor (SC. 93/2008), was filed on September 28, 2007. Appellant’s reply brief was filed on January 28, 2009. Briefed were settled, but no date has been given for hearing since 2009. This year makes it eight years.

    For the appeal in Inspector Gabriel, Commissioner of Police Monitoring Unit, Lagos vs. Evangelist Mrs. Helen Ukpabio & 3 Ors (SC. 290/2008), filed on May 11, 2007, Obono-Obla said the respondents’ brief was filed on January 28, 2009.

    “Records have been transmitted and briefs settled. It is now eight years since the appeal became ripe for hearing. No date for hearing,” he said.

    An appeal in a suit Obono-Obla filed in his personal capacity against the Federal Road Safety Commission (SC. 117/2010) is yet to get a date for hearing five years after the appellant’s reply brief was filed on March 7, 2012.

    The case of Garba Mohammed Gadi vs. the Speaker, Bauchi State House of Assembly & 14 Ors (SC.720/2013) had a sad ending. The notice of appeal was filed on October 22, 2013. Only two of the respondents out of 14 filed their briefs in 2015.

    Due to attendant delays, the case was never heard. A hearing date was eventually fixed for January 16, 2018. Sadly, the appellant died on August 1.

    “A letter of death/notice of discontinuance of the appeal was served on the registry of the Supreme Court on 9th August, 2017,” Obono-Obla said.

    The Special Assistant on Prosecution also listed his cases yet to be heard at the Court of Appeal.

    They include an appeal in Nigerian Civil Aviation Authority vs. Justina Oka Obono-Obla & Ors (CA/PH/767/2013). The respondents’ brief of argument was filed on April 14, 2014. Records have been transmitted, briefs settled. No date has been given since 2014.

    His other cases awaiting hearing are Dr. Kevin Ngwang Gunme & 7 Ors. Vs. Ag Federation (CA/A/69/2014), in which appellant’s brief of argument was filed on March 13, 2014; Macgregor Eteng Omini vs. Yakurr LGA (CA/14/2011), with records of appeal transmitted since June 25, 2012; and Okorn Onun Arikpo vs. Onun Onun Arikpo & Ors (CA/C/183/2014), in which respondents’ brief of argument was filed on August 5, 2014.

    The rest are Chief Unoh A. Unoh & Ors. vs Nigerian Prison Service & Anor (CA/C/182/2013), in which second respondent filed brief of argument on June 6, 2014, and Chief Donatus Ofem Ibor vs Obol Onen David, numbered CA/C/101/2011.

     

    ‘Corruption practices killing system’

    In his letter to the CJN, Obono-Obla alleged that some of the appeals were not listed for hearing because the officials would not list them unless they were bribed.

    “I would like it on record that the statement credited to me about the inefficiency and corrupt practices prevalent in the Registry of the Supreme Court and Court of Appeal in Nigeria is not calculated to bring ridicule to the Judiciary or our esteemed legal profession, but to make it better than it currently is.

    “It is, therefore, not all about my appeals pending before these appellate courts alone, but about the generality of appeals filed by litigants in these appellate courts.

    “The appeals by omissions or commissions become bogged down by the inefficiencies and outright corrupt practices I have identified.

    “The registries of the appellate courts have failed to map out strategies that will ensure the efficient disposal of appeals which are ripe for hearing,” he said.

    Obono-Obla said it had become the “norm” for some judicial staff to demand money before attending to pending files.

    His words: “It has rather become a lucrative business for some judicial staff to exploit the situation to their benefit by listing only appeals of legal practitioners/litigants who can make monetary or other pecuniary gifts to them to ensure their appellate files are brought out from the archives and listed for hearing.

    “This over time has become the silent norm, which, if unchecked, will have dangerous consequences.”

    Other lawyers who spoke to our correspondent in confidence confirmed the allegations. However, many are afraid of speaking out for fear of being victimised.

    “The judiciary never forgets,” said a lawyer on why his colleagues are afraid to speak out against such acts of corruption.

    Prof Sagay agreed with Obono-Obla. “He’s very right. The cases before the Supreme Court are a cause of major frustration,” he said.

    The eminent professor of law recalled that a court official once told him that his appeal would be delayed for several years.

    “I have a private case which has been sitting there. The registrar told us: ‘For the next five years, you won’t hear anything’. So, it’s a very major problem,” Prof Sagay said.

     

    Are the appellate courts overstretched?

    According to the Chief Justice of Nigeria (CNJ) Justice Walter Onnoghen, the Supreme Court considered a total of 1,362 matters, comprising motions, appeals and judgments in the 2016/2017 legal year.

    It heard 82 political, 675 civil and 208 criminal motions, totaling 965.

    The court also considered a total of 394 appeals comprising 96 political matters, 174 civil cases, and 124 criminal matters.

    In total, the Supreme Court delivered 243 judgments in the last legal year. To the CJN, the numbers are impressive.

    “This is by all means an impressive report considering the persistent and increasing volume of cases that continue to come before this Court,” he said.

    There is an increase in the number of cases that go to the Supreme Court.

    In the 2010-2011 Legal Year, the Supreme Court disposed of only 163 cases, consisting of 78 judgments and 85 motions.

    However, the then CJN, Justice Dahiru Musdapher, said 1,149 civil appeals, 58 criminal appeals and 177 motions were pending.

    According to him, even if there was a full constitutional complement of 21 Justices of the Supreme Court, it would take several years before the backlog would be cleared.

    Presently, the Supreme Court is made up of the CJN and 16 other Justices.

    The second most senior Justice of the Supreme Court, Ibrahim Tanko Muhammad, is of the view that Nigeria’s Supreme Court is overworked.

    He spoke while presiding over a panel of justices that delivered 11 judgments in a day, including an appeal on a dangerous driving case.

    His words: “Every Friday you find out that the Supreme Court of Nigeria delivers up to 10 judgments. There was a month where the Supreme Court delivered about 32 judgments. The work is too much. There is urgent need for a solution to reduce the work load.

    “Lawyers will have something to say to the legislature to stop this kind of a thing. There is no Supreme Court in the world that works as the Nigerian SC works.

    “Traffic jam cases! Let it (Supreme Court) be on policy issues and on law only, but if a judge coughs and someone does not like that cough, the matter goes to the Supreme Court.

    “Landlord and tenant cases go to the Supreme Court, which could be determined by magistrate courts. The work is too much; we better start thinking of what to do,” Justice Muhammad said in the open court.

    ‘Nigeria’s global standing’

    The maxim “justice delayed is justice denied” implies that if legal redress is not forthcoming within a specified period, it has the same effect as having no redress at all. If justice is not dispensed promptly, it is tantamount to lack of justice.

    Issues of delays have negatively affected Nigeria’s global ratings. Nigeria ranked 0.44 in the 2016 Rule of Law Index published by the World Justice Project.

    Ghana ranked higher (0.54) than Nigeria. Zambia ranked 0.48, while South Africa ranked 0.59.

    The World Bank Ease of Doing Business Report for 2016 indicates that Nigeria ranked 139 among 190 countries in the enforcement of contracts.

    The ranking focuses mainly on the cost and time of resolution of commercial disputes through the courts.

    ‘Finding solutions’

    A major attempt was made in 2011 to address the problem of appellate court delays when Justice Mustadpher constituted a 29-man committee headed by one of his predecessors, Justice Mohammed Uwais.

    The committee made far-reaching recommendations, which formed a 52-point Judicial Reform Bill submitted to the National Assembly in July 2012.

    A core proposition in the Bill was to abolish the constitutional provision that appeal was of right, and that any aggrieved litigant could appeal a decision of the lower courts.

    By the proposal, the appellate jurisdiction of the Supreme Court was to be altered with the provision that appeals from the Court of Appeal, on interlocutory decisions and other matters, should only be by leave of the Supreme Court.

    This proposal was intended, among others, to allow the Supreme Court to control the appeal process.

    Unfortunately, not only was the Bill not passed, most of the other recommendations by the Uwais committee are yet to be implemented.

    ‘Limit what goes on appeal’

    A former Justice of the Supreme Court, Emmanuel Ayoola, expressed regrets that 90 per cent of the appeals at the Supreme Court are on technicalities rather than substantive issues of law.

    This trend, he said, was a proof that the country’s jurisprudence was on a progressive decline.

    He said: “When you get to the Court of Appeal, when you get to the Supreme Court and when you look at the index of the law reports, you’d find that 90 per cent of reported cases coming before our highest court are all about technicalities and procedure; nothing, absolutely nothing about substantive law.”

    To him, there is the need to limit what goes to the Supreme Court.

    Prof Sagay believes not every issue should be appealable. This, he said, would help decongest the appellate courts.

    “I don’t blame the Supreme Court too much because under our present procedural system, anything goes to the Supreme Court, anything – interlocutory matters that will still come back to the High Court, which should have been disposed of finally. So, they’re overloaded.

    “We need to come together, the CJN and others, first to amend the Constitution, so that we totally eliminate interlocutory matters.

    “Secondly, there is no need for commercial cases to go to the Supreme Court. They can be resolved at the Court of Appeal level where you have three justices.

    “Leave constitutional cases, criminal cases, things concerning administration of government, human rights – just about five things – for the Supreme Court,” Sagay said.

    Legal experts proffer solutions

    Other senior lawyers have also suggested ways out of delays at the appellate courts.

    They include three former Nigerian Bar Association (NBA) presidents, Chief Wole Olanipekun (SAN), Dr Olisa Agbakoba (SAN) and Mr Joseph Daudu (SAN).

    Others are renowned legal author and constitutional lawyer Sebatine Hon (SAN), Chief Anthony Idigbe (SAN), Mr Mike Igbokwe (SAN), Mr Ahmed Raji (SAN), Mr George M. Oguntade (SAN), Mr Kemi Pinheiro (SAN) and Mr Ebun-Olu Adegboruwa.

    Executive Director of Nigerian judicial watchdog, the Access to Justice, Mr Joseph Otteh, also weighed in with solutions.

    Among others, they recommended a constitutional amendment to restrict what goes on appeal, the need to impose severe sanctions to discourage frivolous appeals, creation of regional Supreme Courts, better court and case management, and less reliance on technical justice.

    Wanted: Regional Supreme Courts

    Chief Olanipekun thinks that the ideal and constitutional arrangement in a federal set up is for each state or zone to have its Court of Appeal and Supreme Court.

    That way, the Federal Court of Appeal would only take care of appeals emanating from the Federal High Courts, and only in respect of matters relating to federal subjects.

    State appellate courts, he said, would deal directly with appeals from state high courts, and over subjects peculiar to the state or zones, which they are naturally familiar with.

    Olanipekun said: “We tend to be deceiving ourselves by expecting a Justice of the Court of Appeal, who, as a practicing lawyer or magistrate, was restricted to, say, the Northeast, to, by the magical wand of being appointed a Justice of the Court of Appeal, master and become an expert in the land tenure system, chieftaincy nuances, native law and custom, etc, of either the Southwest or Southeast zone, and start dishing out judgments on these very fundamental matters.

    “He has to start learning, even as a Justice of the Court of Appeal, if we want to be sincere with ourselves.

    “Some years back, Justice Musdapher set up a high powered committee to look into ways and manners of resuscitating and revamping the administration of justice in Nigeria.

    “I served on the committee and we came up with a lot of recommendations, some of which would trigger constitutional amendments.

    “We have to, as a matter of urgency, take the document from the Nigerian proverbial dust bin, and implement the recommendations.

    “Like our warped federalism, the Nigerian judiciary and judicial system must be saved and rescued from the suffocating trauma of vertical unitary governance,” Olanipekun said.

    Hon shares Olanipekun’s views. He said the first step in addressing delay in the appeal process was by amending the Constitution to have certain appeals terminate at the Court of Appeal.

    His words: “Regional Supreme Courts and Courts of Appeal should be established to take care of disputes based on state, customary and land laws.

    “The Supreme Court is currently overburdened, hence needs breathing space.

    “As for the Court of Appeal, more Divisions should be created to reduce its workload.

    “Sections 36 (3) and 234 of the Constitution should also be amended to permit a single Justice of the Supreme Court to sit in Chambers and determine all manners of interlocutory applications or motions.”

    Hon said similar constitutional amendments should be introduced in respect of the Court of Appeal.

    “The reason is plain enough: over 80 per cent of appellate delay is caused by interlocutory motions.

    “Put me on record: once this amendment scales through, the issue of delay in dispensing appellate justice will be consigned to history,” Hon said.

    ‘Amend the Constitution’

    Daudu said while it is correct that some appeals have been “asleep” in the Supreme Court Registry for upwards of 10 years, the reason, according to him, is due to the increased volume of appeals.

    “When the Court of Appeal was created in 1976, there were only four divisions of the Court.

    “Today, there are 16 divisions of the Court of Appeal seeking to satisfy a congested docket of cases fuelled by an ever increasing population of lawyers.

    “When I was called to the bar about four decades ago, we were not more than 500 in my set. Now not less than 6,000 lawyers have been called to the Bar on the average in the past 10 years. Taken together, these are the main reasons for the congestion of cases in these courts.

    “Finally, the constitutional number of the Justices that man these courts have not increased in any appreciable manner or at all.

    “In my view, it is humanly impossible for these judges to discharge qualitatively their adjudicative functions with the amount of pressure heaped on them by the sheer quantity of cases.

    “The strategy for reducing workload in these courts does not lie in the technical nature or otherwise of cases that go to the Appellate courts,” Daudu said.

    To him, the Justices deserve commendation for the much they are doing.

    Igbokwe believes appeals can be restricted through a Constitution amendment.

    According to him, appeals to the Court of Appeal or Supreme Court on technical grounds would continue as long as constitutional provisions on appeals as of right remain as they are.

    Igbokwe said: “In order to reduce appeals to the Supreme Court, the Constitution could be amended to stop appeals to the Supreme Court requiring its leave or the leave of the Court of Appeal.

    “Moreover, any appeal arising from the challenge of an arbitral award should not go beyond the Court of Appeal.”

    Igbokwe said the Supreme Court could have three different panels sitting on different appeals at the same time, rather than one

    “So, the Constitution could be amended to increase the number of Justices of the Supreme Court.

    “I am of the view that the Supreme Court is overworked especially during election petitions and a lot of commercial and admiralty appeals before it suffer delays because they are not given priority like election appeals.

    “As the constitutional number of the Justices of Supreme Court is increased, more Justices of the Court of Appeal and interested Senior Advocates of Nigeria can be elevated to the Supreme Court to help it in sitting in three panels (which I believe was why there are three court rooms). Appeals in the Court would thus be determined faster.

    “If nothing is done to change the situation, it could lead to anarchy as parties may resort to self-help or other means of settling disputes as they regard justice delayed as justice denied,” Igbokwe said.

    ‘Develop efficient systems’

    Idigbe regretted that Nigerian judiciary is “unrelentingly blighted”, notwithstanding the constitutional guarantee of speedy trial within a reasonable time.

    To him, delays can be reduced “through active court management” and “developing effective strategies”.

    Such strategies, Idigbe said, include appointment of qualified/experienced court administrators, preparation of strategic management plan, caseflow management, case monitoring systems, judicial accountability and productivity monitoring, deployment of ICT to record management and other services, training and staff empowerment.

    “If delay is to be tackled effectively, then a professional, comprehensive and strategic approach to court administration should be adopted,” Idigbe said.

    Agbakoba, like Idigbe, believes better case management by the Justices would help reduce their dockets.

    “I have spoken ad nausem (repeatedly) on this point and no one at the National Judicial Council (NJC) is listening.

    “Judges control their courts under a power known as case management but many fail to exercise it and rather put the blame on counsel,” he said.

    For Raji, one way to curb delays in the appellate courts is to limit the right of appeal.

    “A situation where over a thousand appeals are filed in a year deserves a thorough re-appraisal. The highest court of a country is not just any other court. It is the fountain of justice and policy and not just a court for normal day to day disputes.

    “All appeals to the Supreme Court should, therefore, be by leave of the Supreme Court,” Raji said.

    Raji believes creating more appeal court divisions would help.

    “With respect to the Court of Appeal, there should be more divisions and except in rare cases, interlocutory appeals should be discouraged or be directed to be combined with the substantive appeal where it will accord with the justice of the case,” Raji said.

    ‘Justices deserve better’

    For Adegboruwa, the problem lies with too many cases and few justices to handle them.

    He noted that in Lagos State for example, the Court of Appeal is expected to sit over appeals from about 66 high courts and 15 Federal high courts.

    It is also expected to hear appeals arising from Customary Court of Appeal, Election Petitions Tribunal, Tax Appeal Tribunal, Securities and Exchange Tribunal, Military Court Martial, professional disciplinary committees of lawyers, doctors, accountants, architects, surveyors, among others.

    Adegboruwa said on the average, close to 100 appeals are filed daily in Lagos.

    Thus, on the average, about five appeals and about 10 applications are taken per day by Justices who, after long hours of sitting in court, have to return to their chambers to render well considered decisions.

    The same scenario, he said, plays out at the Supreme Court, which takes appeals from all divisions of the Court of Appeal across Nigeria.

    The activist-lawyer said the situation in the appellate courts is worsened by “the needless” focus on anti-corruption cases, with commercial disputes, land cases, chieftaincy disputes, admiralty matters all receiving secondary attention.

    Politicians, he noted, deliberately “escaped” the intractable delays by amending the Constitution to have election petitions and related cases heard and determined within a specific period of time.

    Worst still, he said there is no corresponding investment in the court system by the government.

    “The basic solution, therefore, is to appoint more Justices, build more courts and then attend to the welfare conditions of judicial officers.

    “Compared to the average member of the House of Representatives, a Justice of the Court of Appeal is totally neglected, with no judicial assistant, no functional gadgets for research and no means of sourcing legal materials other than the individual and personal efforts of the Justices.

    “Compared to the average Senator or Minister, a Justice of the Supreme Court is totally abandoned, and yet crowded with work, seven days of the week and 24 hours. Most of them write their rulings and judgments at home since they have to sit in court during the day.

    “The other solution is to consider amending the Constitution to limit interlocutory appeals.

    “Most of the appeals pending are on decisions taken in the course of the main case, all of which work to cause great delay, especially when an order for a stay of proceedings pending appeal is granted.

    “Above all, the government should be sincere to invest more in the judiciary.”

     

    ‘Impose severe sanctions’

    Oguntade was of the view that, as things stand, the constitutional right of appeal is substantially open-ended, with little or no restriction.

    “This being so, and Nigerians being naturally litigious, they will appeal on every single decision regardless of the merit.

    “It, therefore, follows that to address this problem, it is imperative that constitutional amendments be effected such that the right of appeal will be circumscribed and delimited,” he said.

    The High Court, he said, ought to be empowered to refuse leave to appeal in obvious cases where such an appeal serves no useful purpose except to congest appellate dockets and make life difficult for the victorious party.

    Similarly, the Court of Appeal, he said, should have the same powers with respect to prospective appeals to the Supreme Court.

    “Next is the issue of costs. Put simply, a losing appellant has little to worry about save filing fees and professional fees of counsel.

    “The victorious party, who has been put through the trauma of a frivolous appeal, is still left short-changed at the end of the appeal.

    “In advanced jurisdictions, costs are usually a crucial consideration in deciding whether to pursue an appeal or not, as costs awarded against a losing party are usually very substantial.

    “The rationale is that it serves as a deterrent to the filing of spurious appeals. This ensures that only serious cases proceed to the appellate costs.

    “Surely, where a prospective appellant knows beforehand that he is likely to be damnified in costs running into millions of Naira, he will think twice before embarking on a useless appeal,” Oguntade said.

    The Senior Advocate said practitioners who ought to know better were complicit by advising and encouraging clients to file frivolous appeals.

    “In many jurisdictions, such conduct will constitute abuse of process and perhaps professional misconduct, thus rendering them amenable to serious disciplinary actions which will include personal fines, suspension and in some cases, disbarment.

    “It, therefore, follows that the courts have a crucial role to play by promptly reporting erring lawyers to the Legal Practitioners Disciplinary Committee for appropriate action.

    “There is no doubt that once this is done, lawyers will act more professionally and the present floodgate of useless appeals will gradually begin to close,” the SAN added.

    Oguntade’s views tally with suggestions by Strachan Partners. The firm noted that some lawyers use the appeal process as a ploy to stall the progress of a case.

    Such lawyers file appeals against interlocutory rulings and by the time the interlocutory appeals are finally decided by the Supreme Court, continuation of the substantive trial at the High Court becomes a waste of time and effort.

    The firm said some counsel file applications for extension of time within which to appeal on the frivolous excuse that the certified true copy of the judgment appealed against could not be procured within the statutory period stipulated for appeal.

    “One major solution to the problem of using appeals as a ploy to stall trial at the lower court is by adopting a similar practice direction contained in the Election Tribunal and Court Practice Directions 2011 which empower the Court of Appeal to consolidate all interlocutory and substantive appeals in an election petition.

    “Therefore, at the trial stage, the High Court (Civil Procedure) Rules should be amended in such a way that judges can refuse to stay proceedings of the substantive suit to await the decision of the Court of Appeal on an interlocutory ruling.

    “The Court can shorten the lifespan of a case if it imposes heavy costs and penalties for default of appearance or delay in filing process.

    “In addition, where a party fails to appeal within the period prescribed by law, the Court should not grant an application for leave to appeal or for extension of time unless in special circumstances or in the alternative, impose a very heavy penalty on the appellant,” the firm said.

    Wanted: less emphasis on technicalities

    For Otteh, if a preponderance of appeals is over technical issues, it means that technicalities play a dominant part in deciding the outcome of a majority of litigations.

    In essence, there is an acceptance in Nigerian jurisprudence of what he called ‘technical lawyering’.

    “Current Nigerian jurisprudence tells litigants they can prevail over their opponents if they muster enough technical fire power, and so, for every perceived misstep in a proceeding, an objection is raised on the ‘jurisdiction’ of the court.

    “The matter is fought up to the Supreme Court, with the possibility that the Supreme Court, perhaps, will sustain the objection,” Otteh said.

    According to him, it is sometimes difficult to avoid the feeling that the Supreme Court encourages focus on technicalities “by its sometimes formalistic, legalistic interpretations”.

    This, Otteh said, has encouraged litigants who have no answer to a suit to hold on to “technical straws”.

    “If our Supreme Court were more beholden to a liberal, justice-centred philosophy of interpretation and adjudication, there will be less fuss over technicalities and cases would be decided more on their merits.

    “And, if the prospects for sustaining purely technical argumentation dim at the appellate courts, this would ‘dis-incentivise’ appeals, and where this happens, the appellate caseload would naturally reduce,” Otteh said.

    ‘Review Appeal Court rules, others’

    Pinheiro called for an immediate amendment of the Court of Appeal Act, Court of Appeal Rules and Sections 241 and 242 of the Constitution to restrict the rights of interlocutory appeals.

    The court, he said, must also adopt strict approach in granting leave to appeal, and must enforce the cost regime better.

    According to him, applications to stay proceedings of trial courts filed at the Court of Appeal should be heard and determined expeditiously.

    He said there should no further right to pursue such an application at the Supreme Court where it is dismissed by the Court of Appeal, except in cases where the Court of Appeal is a court of first instance.

    He said there must be a provision similar to Section 40 of the EFCC Act.

    “The provision of the Court of Appeal Rules that ousts the jurisdiction of the trial court once an appeal has been entered should be expunged from the Court of Appeal Rules by way of legislative intervention.

    “A party who seeks to pursue an interlocutory appeal while the trial is ongoing should be at his own frolic.

    “The time for filing of briefs should also be limited. It should not be more than seven days each to both parties once the records have been compiled and transmitted.

    “Also, where records are not compiled within time, the appeal should be dismissed out rightly. Housekeeping applications should be taken in chambers.

    “The cost regime must also be applied strictly with punitive sanctions on lawyers who frustrate hearings. From the Justices perspective, there must be constant monitoring of the returns of Court of Appeal Justices in terms of the judgments/rulings delivered.

    “Where a Presiding Justice of a division fails to meet up with his returns, he should be transferred to another Division where he would not preside,” Pinheiro said.

    A committed judiciary?

    There is no doubt that it will require commitment by all stakeholders to quicken appellate court’s adjudicatory process.

    As the CJN acknowledged, the conventional method of justice delivery at the appellate courts is cumbersome, time consuming, susceptible to loss or theft of court documents.

    There is difficulty in filing court processes which is subject to abuse and gives room for corrupt practices.

    In Justice Onnoghen’s words, ICT-assisted justice system “would enhance justice by ensuring, for example, that information is adequately captured and passed on digitally, data exchange will not be disintegrated and court processes will be finalised and ready on demand.”

    He added: “With e-justice system, case management will be automated, payment of fees will be made through dedicated websites to reduce corruption, and forms that simplify and streamline court proceedings will be available to court users online.

    “However such measures must be accompanied by enhanced capacity of personnel and investments in cyber security,” the CJN said.

    Justice Onnoghen said the Supreme Court, fully cognizant of the role of the judiciary in ensuring that justice is properly served to those who approach the courts, frowns at all forms delays and abuse of court processes.

    “Members of the Bar are, therefore, enjoined to shun all tactics and ploys, which constitute clogs in the seemingly slow-winding wheels of justice so that they do not come to a grinding halt.

    “I share the view that the Justices of the Supreme Court of Nigeria are the most hard working Supreme Court Justices in the world. As we sit daily and work tirelessly, we remain committed to expeditious dispensation of justice.”

    What is left, according to observers, is the will and commitment by all stakeholders to do what needed.

  • When courts add to litigants’ burden

    When courts add to litigants’ burden

    Courts are meant to resolve disputes among litigants by interpreting the law. However, incidents abound where, rather than help resolve disputes, courts, either wittingly or otherwise, compound them, leaving each party claiming victory. Eric Ikhilae presents some of such recent incidents.

    The court, ordinarily serves as the main institution through which the Judiciary carries out its core constitutional responsibility of law interpretation. And, in the process of interpreting laws, the court resolves disputes brought before it by litigants, who could either be natural persons or otherwise.

    Ordinarily, courts are meant to resolve conflicts among litigants and help put issues in proper perspective by effectively interpreting the law, eliciting its clear, lucid and unambiguous meanings, and thereby, giving life to the draftsman’s true intention.

    Of recent however, there appears to be a departure from this original practice. Court decisions tend to leave litigants confounded and issues muddled up. Rather than resolve disputes, some court decisions appear to engender dispute.

    Such appears to be the case in the seeming unending dispute over the Anambra Central Senatorial district seat.

    The Peoples Democratic Party (PDP), like every other party, had, preparatory to the last general elections, held a primary on December 7, 2014 to choose its flagbearer for the Anambra Central Senatorial seat.

    At the conclusion of the exercise, the PDP pronounced Mrs. Uche Ekwunife, then a decampee from the All Progressives Grand Alliance (APGA), as winner. An aggrieved aspirant, Obiora Okonkwo went before the Federal High Court, Abuja to challenge the outcome of the primary.

    In the suit he filed on December 23, 2014, marked: FHC/ABJ/CS/1092/2004, Okonkwo claimed to have scored the highest vote at the PDP’s primary election and sought to be declared the party’s actual candidate.

    He listed as defendants, the PDP, Adamu Muazu (sued for himself and on behalf of the PDP’s National Executive Committee and the party’s National Working Committee) and the Independent National Electoral Commission (INEC).

    While Okonkwo was in court, Mrs. Ekwunife contested the March 28, 2015 National Assembly election as PDP’s candidate and was declared winner of the Anambra Central Senatorial election by INEC.

    By the result announced by INEC, Mrs. Ekwunife polled 101,548 votes to defeat APGA’s Victor Umeh, who had 77, 129 votes and the candidate of the All Progressives Congress (APC), Chris Ngige, who came third with 20, 850 votes

    She was issued certificate of return and subsequently assumed the Anambra Central Senatorial seat at the Senate.

    Hardly had Mrs. Ekwunife settled on the Senate seat when APGA’s candidate for the election, Victor Umeh served her court papers, indicating that he was challenging the election outcome before the election tribunal.

    In its judgment on October 8, 2015, the election tribunal, led by Justice Nayai Aganaba, affirmed Mrs. Ekwunife’s election, but proceeded to alter the final votes earlier allotted by INEC to the PDP and APGA candidates.  The tribunal reduced Ekwunife’s final score to 93,300 votes and raised Umeh’s score to 85,898 votes.

    Unsatisfied, Umeh headed before the appeal tribunal in an appeal marked: CA/E/EPT/28/2015. After hearing parties, the appeal tribunal, at the Court of Appeal, Enugu rendered its decision on December 7, 2015, voiding Mrs. Ekwunife’s election on the grounds that she did not emerge as candidate of the PDP from a properly conducted primary election. It ordered a rerun and barred Mrs. Ekwunife and the PDP from participating in the rerun election.

    After a closer look at the appeal tribunal’s judgment, Mrs. Ekwunife, armed with several authorities, particularly some Supreme Court’s decisions relating to improper nomination and sponsorship, who could challenge the outcome of a party’s primary, and which court has jurisdiction over pre-election disputes, went back to the Court of Appeal, Enugu.

    She filed an application and urged the court to reverse itself. Although she drew the court’s attention to its decisions in similar cases involving Senators Andy Ubah and Stella Oduah, the court refused to be swayed and in a ruling on March 3, 2016, held on to its earlier decision, ordering INEC to conduct a rerun election for Anambra Central.

    Dissatisfied, Mrs. Ekwunife headed for the Supreme Court in an appeal marked: Supreme Court SC/204/2016. In its unanimous judgment on February 10, 2017, the Supreme Court dismissed Mrs. Ekwunife’s appeal on the grounds that it lacked the necessary jurisdiction to hear such appeal.

    Justice Amina Augie, in the lead judgment, said: “Looking closely at the wordings of Section 246 (3), it is clear that the decision of the Court of Appeal is final. This court is completely bereft of jurisdiction to entertain the appeal.

    “Once the Court of Appeal delivers its judgment on a National Assembly Election Petition appeal, the judgment becomes final. For the umpteenth time, the Constitution does not approve of the apex court to entertain this appeal no matter how cleverly it has been framed.”

    Meanwhile, while Mrs. Ekwunife was struggling to have her sack reversed, INEC, working with the December 7, 2015 judgment of the appeal tribunal, Enugu, fixed the rerun election for March 5, 2016. The rerun election never held. A lower court intervened and purported to reverse the decision of the Court of Appeal, Enugu.

    Contrary to the order by the appeal tribunal, Enugu, barring the PDP from participating in the rerun election, Justice Anwuli Chikere of the Federal High Court, Abuja gave a judgment on February 29, 2016 in a suit by the PDP and ordered INEC to include the party and its candidate in the rerun election scheduled for March 5, 2016.

    INEC rejected Justice Chikere’s decision and appealed to the Court of Appeal Abuja. Umeh equally appealed the decision. And on November 20 this year, the Court of Appeal, Abuja gave its decisions in both appeals marked: CA/A/160/2016 and CA/A/165/2016, and restated the December 7, 2015 decision of the appeal tribunal in Enugu, ordering a rerun, with the exclusion of the PDP and its candidate.

    The PDP has since appealed November 20, 2017 judgment and asked the Supreme Court to among others, void the judgment and order its inclusion in any rerun election to be conducted in Anambra Central.

    However, while Mrs. Ekwunife was fighting her sack up to the Supreme Court, and INEC and Umeh were challenging Justice Chikere’s decision at the Court of Appeal, the suit filed by Okonkwo since December 23, 2014 was stuck at the Federal High Court, Abuja, without it being decided one way on the other.

    Mrs. Ekwunife late applied and was joined as the 4th defendant in the suit by Okonkwo, following which parties filed all necessary processes and adopted them, after which the trial judge, Justice Ahmed Ramat Mohammed adjourned for judgment.

    Before the date set for judgment, the judge directed parties to adduce oral evidence to enable him determine which of the primary election results sheets, as presented by Okonkwo and Ekwunife, was the authentic one, and which the court could rely to determine the case.

    Court documents revealed that parties complied with the judge’s directive and another date was fixed for judgment. But before that date, Mrs. Ekwunife filed an application to set aside the order of adjournment for judgement and sought for an adjournment to enable her call additional witnesses.

    Although Okonkwo opposed the application, Justice Mohammed, in a ruling, granted the Ekwunife application. But, for unexplained reason, the judge later withdrew from the case.

    Okonkwo later appealed against Justice Mohammed’s ruling, allowing Mrs. Ekwunife to call additional witnesses. The Appeal Court dismissed the appeal and returned the matter to the FHC to continuation of trial and allow Ekwunife to call additional witnesses.

    When parties returned to the Federal High Court after the Appeal Court’s decision, the case was reassigned to another judge – Justice Okon Abang.

    At the resumption of proceedings before Justice Abang, Ekwunife failed to call the witnesses she had applied for, but instead, came with a fresh application urging the court to allow her do away with the planned additional witnesses.

    Okonkwo objected to the application and, in a ruling, Justice Abang dismissed it and ordered Mrs. Ekwunife to call her witnesses on the next adjourned date.

    Again, for an unexplained reason, when parties got to court on the set date, Justice Abang recused himself from the case and returned the case file to the Chief Judge for re-assignment to another judge.

    After some delays, the case got reassigned to Justice Babatunde Quadri, before who Mrs. Ekwunife failed to call her additional witnesses as ordered by Justice Abang in his last ruling in the case.

    Instead, she filed a notice of preliminary objection, urging the court to, among others, dismiss the suit on the grounds that the plaintiff (Okonkwo) had no cause of action and that all aspirants in the primary election were not made parties to the suit.

    After entertaining arguments from parties on the objection filed by Mrs. Ekwunife, Justice Quadri fixed August 3, 2017 for judgement. But, before judgment could be delivered, Okonkwo brought a motion, challenging Mrs.  Ekwunife’s locus standi to be joined as a party in the suit.

    Okonkwo argued that since the Court of Appeal had held that Mrs. Ekwunife was not validly nominated to contest in the election and as such sacked her from the senate, she could no longer be heard in relation to any dispute about the primary.

    He urged the court to first decide his later motion before its reserved ruling on Mrs. Ekwunife’s objection.

    In a ruling, Justice Quadri upheld Mrs. Ekwunife’s counter argument to the effect that Okonkwo’s request about dealing with his motion first amounted to arresting the court’s judgment.

    The judge proceeded to give his ruling on Mrs. Ekwunife’s objection and refused it. But, rather than proceed with the case, Justice Quadri withdrew. Okonkwo also appealed the judge’s last ruling.

    But, before the Court of Appeal could decide his appeal, Okonkwo withdrew it and, instead went back before the Federal High Court with a motion on notice filed on June 20, 2017 asking the court to among others, enter judgment in his favour.

    In the motion, Okonkwo stated that parties, “on May 18, 2017, agreed that the court hear the suit as originating summons by readopting their processes together with the motion on notice filed by the 4th defendant, challenging the jurisdiction of the court.

    “That by this agreement, all the parties do no longer wish to call oral evidence as per the judgment of the Court of Appeal in appeal No: CA/A/173/2016 by Obiora Okonkwo.

    “That on the same May 18, 2017 the 1st and 2nd respondents (PDP and Adamu Muazu) withdrew all their defence and processes they filed in the suit and submitted to judgment in favour of the plaintiff/applicant vide their affidavit of facts filed.

    “There must be an end to litigation and the end for the litigation for the validly nominated candidate of the PDP, who won the PDP primary election and National Assembly election will end by entering judgment in favour of the plaintiff/applicant upon the admission of his claims by the 1st and 2nd defendants/respondents and by implication, the 4th defendant/respondent, who has no locus standi to activate the jurisdiction of this court, and she is also relying on the same documents withdrawn by the 1st and 2nd defendants/respondents.

    “The 3rd defendant/respondent (INEC) is a neutral party, which has not filed any counter-affidavit opposing the claims of the plaintiff/applicant.”

    The judge to which the case was reassigned to, Justice John Tsoho decided Okonkwo’s fresh motion on December 13, 217 and granted some of his reliefs.

    Justice Tsoho held that Okonkwo was validly nominated by the PDP in its primary election of December 7, 2014 for Anambra Central Senatorial district held at the Ekweme Square, Awka.

    The judge ordered the Senate President to forthwith, inaugurate Okonkwo to take over the Anambra Central Senatorial District seat in the Senate. He also ordered that the certificates of return earlier issued to Ekwenife (if there is still anyone left) be withdrawn and a fresh one be issued to Okonkwo by INEC.

    Every interested party to the Anambra Central Senatorial seat appeared to have been thrown into a quandary of sort since the December 13 judgment.

    While asking INEC to issue him a certificate of return, as ordered by Justice Tsoho, INEC is unsure whether to proceed with its January 13, 2018 planned rerun election, which it scheduled shortly after the November 20, 2017 judgment of the Court of Appeal Abuja.

    INEC has since applied to the Federal High Court, asking Justice Tsoho to review his decision. While the court is yet to fix a date for the hearing of INEC’s fresh application, Umeh is of the view that Justice Tsoho is on his own and should not be taken serious. He said he was working towards the January 13 rerun election.

    Okonkwo’s understanding of the whole scenario is contained in a letter of December 14, 2017 written by his lawyer, Sebatine Hon (SAN) to INEC Chairman, Professor Mahmood Yakubu.

    Part of the letter reads: “we are counsel to Dr. Obiora Okonkwo, the Peoples Democratic Party (PDP) candidate that won the party’s nomination to contest the March 2015 election for Anambra Central Senatorial District but was unlawfully and wrongfully denied the ticket, which ticket was handed to Chief (Mrs.) Uche Ekwunife.

    “He is hereinafter referred to as ‘our client,’ and we hereby write on his instructions. Aggrieved by that clearly unlawful decision of the PDP, our client took out an originating summons in December 2014, challenging the actions of the PDP.

    “Joined as defendants in the suit were PDP, then chairman of PDP, Alhaji Adamu Muazu, Independent National Electoral Commission (INEC) and Chief (Mrs.) Uche Ekwunife.

    “In the course of the trial, however, counsel to the PDP and the PDP chairman; counsel to INEC and Counsel to Chief (Mrs.) Uche Ekwunife, all submitted to judgment, as per the claims in the amended originating summons and the motion for judgment filed and served on them by the plaintiff (our client).

    “It is instructive to note that the motion on notice sought for consequential orders, including an order that INEC should forthwith issue our client with a certificate of return and that he should be immediately sworn in as Senator of the Federal Republic of Nigeria.

    “In the course of the hearing on Wednesday, 13th December, 2017, all defence counsel again conceded and submitted to judgment; hence the Hon. Justice John Tsoho of the Federal High Court, Abuja entered judgment for our client as per claims in the amended originating summons as prayed in relief 3 of the motion on notice.”

    The letter referred to the two judgments of the Court of Appeal and said they merely voided Mrs. Ekwunife’s candidacy, but did not void the election held on March 28, 2015.

    It added: “The Court of Appeal, in that decision also held that the APGA candidate, Chief (Sir) Victor Umeh, could also not be declared winner of the said election, since he did not poll the highest number of votes.

    “Therefore, that the Court of Appeal did not nullify the March 28, 2015 election into Anambra Central Senatorial District, but merely held that Hon. Uche Ekwunife could not prove her due nomination by the PDP.

    “Now that the Federal High Court in suit No. FHC/ABJ/CS/1092/2014 has held that our client was duly nominated candidate of the PDP in that election; and in view of the settle case law that it is a political party as opposed to a candidate that wins an election, our client should, as ordered by Justice Tsoho J., be issued a certificate of return forthwith, to enable the senate leadership inaugurate him as Senator of the Federal Republic of Nigeria.”

    Umeh however provided a contrary argument. He noted that Justice Tsoho’s judgment was given about three weeks after the Court of Appeal sitting in Abuja had instructed INEC to within 90 days conduct the Anambra Central rerun with the exclusion of PDP as directed by its Enugu Division which quashed Uche Ekwunife’s election on December 7, 2015.

    Umeh was optimistic that INEC, as a responsible agency, would not obey the high court ruling against a subsisting Appeal Court decision.

    He added: “The Federal High Court judgment did not make any reference to the Court of Appeal judgment that nullified the election. It did not make any reference to the Court of Appeal judgment delivered on November 20 that ordered INEC to conduct the rerun election within 90 days.

    “It did not say INEC should ignore those Court of Appeal decisions. What it simply said was that it delivered a judgment on who was the candidate of PDP between Ekwunife and Okonkwo.

    “That was the judgment and he (Justice Tsoho) proceeded to make fallacious orders that Obiora Okonkwo should be sworn in. Sworn in on the basis of which election? An election that has been nullified?

    “If the election had not been nullified, and he comes to the conclusion that Okonkwo was the rightful candidate of PDP, yes, he can order that Okonkwo should be sworn in.

    “But in the present case, the election in question has been destroyed by the Court of Appeal judgment delivered on December 7, 2015, which nullified the election. And that is why the seat has been vacant till date.

    “So, Okonkwo is not going there to replace anybody because there is nobody there. The election has been voided by the Court of Appeal, which is the final court vested with the authority to adjudicate over National Assembly matters. And that was what the Supreme Court judges told Ekwunife on February 10, 2017. They told her that they don’t have any authority to tamper with the judgment of the Court of Appeal; that the judgment is final. So, the election remains nullified forever.

    A High Court cannot pretend that it is treating a pre-election matter and fail to recognise the fact that nobody can be winner of a nullified election. There is nothing for Okonkwo to claim because the election does not exist anymore. It has been invalidated,” Umeh said.

    Is there still a live election?

    Umeh’s argument that the election that Okonkwo seeks to inherit has long been voided is supported by two recent developments.

    First is the finding of the Court of Appeal in its judgment of November 20. The second is the observation by Justice Olasumbo Goodluck of the High Court of the Federal Capital Territory (FCT) in a judgment given few days before Justice Tsoho’s decision.

    In the November 20 judgment, Justice Tinuade Akomolafe-Wilson, who read the lead judgment, said: “Where a court nullifies an election and orders a fresh election, a political party which participated in the annulled election, at whose instance the election was nullified, cannot field a new candidate to contest in the fresh election.

    “This is because the fresh election does not entail an entirely new process; rather it takes the place of the annulled election, because the period of nomination of candidates has lapsed.”

    Justice Akomolafe-Willson noted that it was not the case of the 1st respondent (PDP), at the trial court, that it be allowed to substitute a candidate for Ekwenife, who had defected from the PDP, but for the “erroneous notion that the court-ordered rerun election, scheduled by INEC for March 5, 2016, entailed an entirely new process whereby it is entitled to conduct fresh primaries and nominate a new candidate.”

    She said it was unfortunate that the trial judge fell into a grave error by predicating her judgment on the ground that Ekwenife defected from the PDP. She added: “On the whole, having resolved the main issue in this appeal in favour of the appellant, this appeal is meritorious and it is allowed.

    “The decision of the trial Federal High Court delivered on 29 February, 2016, is hereby set aside. Independent National Electoral Commission (INEC) (2nd respondent) is ordered to conduct a fresh election in Anambra Senatorial District within 90 days from today with the participation of the appellants (Chief Victor Umeh and APGA).”

    On December 5, this year, Justice Goodluck gave a judgment in suit No. FCT/HC/CV/1110/2015 filed by Barrister Chukwunweike (Chike) Maduekwe, who claimed to have been an aspirant in the 2014 PDP primary for Anambra Central Senatorial district.

    His main claim in the suit was for the refund of the N4.5m he paid to the PDP for the expression of interest and nomination form. He said the party failed to hold a primary and so, he was entitled to a refund.

    In her judgment on December 5, Justice Goodluck agreed with Maduekwe that PDP did not hold a primary and consequently, ordered the party to refund N4.5m to the plaintiff.

    The judge said: “It is hereby declared that the 1st defendant [PDP] is not entitled to retain the N4.5m paid by the plaintiff as the PDP Senate Expression of Interest EO1 and nomination form when the 1st defendant refused, failed and or neglected to conduct the primary election to elect its flagbearer for Anambra Central Senatorial District.”
    A similar confusing scenario also presented itself in the case over Kogi East Senatorial district. After spending over three years in court, with several court decisions, the situation is not yet clear who the actual winner is. Each party is claiming victory.

    Like the Anambra Central case, this one also arose from a primary of the PDP held on December 7, 2014 at Idah Township Stadium, Kogi State. Retired Air Marshal Isaac Alfa claimed to have won the primary, but that the party substituted his name with that of Attai Aidoko.

    On December 19, 2014, Alfa filed a suit before the Federal High Court in Abuja to challenge what he saw as unlawful substitution of his name. The Federal High Court, in a judgment on April 18, 2016, held in his favour, to the effect that he was the authentic candidate of the PDP for the Kogi East Senatorial seat.

    Based on the Federal High Court judgment, Alfa proceeded to contest the National Assembly as the PDP candidate and won, while Aidoko appealed the judgment at the Court of Appeal, Abuja with a notice of appeal dated April 20, 2016.

    On December 14, 2016, after Alfa had assumed office as the Senator representing Kogi East, the Court of Appeal gave its judgment in the appeal by Aidoko, marked: CA/A/260/2016. The appellate court set aside the April 18, 2016 judgment of the Federal High Court on the grounds that the trial court wrongly assumed jurisdiction and that the suit was wrongly commenced.

    The Court of Appeal said among others, that pleading ought to have been filed at the court bellow and that the suit was not the type to be commenced by originating summons. It did not direct that the case be remitted to the lower court for re-trial, but instead, ordered the Independent National Electoral Commission (INEC) to issue fresh certificate of return to Aidoko.

    Alfa appealed the Court of Appeal’s decision at the Supreme Court, in appeal marked: SC/1088/2016.

    The Supreme Court delivered its judgment on the appeal by Alfa on June 16, 2017 and ordered among others, that the case be heard afresh by the Federal High Court.

    The apex court agreed with the aspect of the Court of Apeal that facts in the case was contentious, requiring that parties file pleadings and call oral evidence. Based on the Supreme Court judgment, Alfa refiled his case before the Federal High Court via a statement of claim on August 23, 2017.

    While hearing was about to commence afresh before the Federal High Court, Aidoko filed an application, requesting that three questions, which he raised on his own, be referred to the Court of Appeal for determination.

    Although Alfa objected to the application and the trial judge, Justice Nnamdi Dimgba found the application to be unnecessary, he allowed it and referred the questions to the Appeal Court as requested by Aidoko. And on December 18, this year, the Court of Appeal gave its decision on the questions referred to it by Aidoko, marked: CA/A/818/R/2017.

    Justice Abdu Aboki, in the lead ruling of the court’s unanimous decision, found that the three questions by Aidoko did not satisfy the conditions which must exist before the Appeal Court could give its answer under Section 295(2) of the Constitution.

    Justice Aboki said: “I have carefully gone through the three questions referred to this court for interpretation, the first question, in my view relates to the effect of the finding of this court which has not been set aside by the superior court (Supreme Court), whether it is binding on the parties and the courts.

    “The second question relates to rule of practice of the courts, relating to the doctrine of stare decisis and the third question relates to whether the Federal High Court has any jurisdiction to entertain and grant the reliefs sought before it.

    “It is trite law that reference, on a question as to the interpretation of the Constitution, to this court is not simply done as a matter of course, for mere asking sake. The question must be as to the interpretation of the Constitution or application of the Constitution.

    “In the instant case, it cannot be said that all the three questions relate to the interpretation of the Constitution. In the instant case, the reference questions, having been found not to have arisen from the proceedings of the Federal High Court, the further question as to whether it involves a substantial question of law does not arise.

    “The earlier judgment of this court, which went on appeal to the Supreme Court was no longer valid in view of the fact that all courts bellow are bound to follow the decision and order(s) of the Supreme Court.

    “In the instant case, the failure of the applicant (Aidoko) to establish all the three vital necessary pre-conditions for a proper determination of reference questions is fatal to the application. This application lacks merit, it fails and it is accordingly dismissed,” Justice Aboki said.

    Justices Peter Olabisi Ige and Emmanuel Akomaye Agim, who were on the panel agreed with Justice Aboki.

    Justice Ige particularly noted that Aidoko’s application to the Court of Appeal was an attempt to frustrate the execution of the Supreme Court order that the case be re-heard by the Federal High Court.

    He said: “In an apparent bid to stall and delay the hearing of the suit herein, as mandated by the Supreme Court, the applicant herein, brazenly brought a most reckless and bizarre application before the lower court, asking the lower court to refer, what the applicant, in his imagination, perceived to be constitutional questions to this court.

    “To my mind, the applicant has exhibited great disdain and contempt for the Supreme Court’s decision aforesaid. All he is out to do is to circumvent and render the judgment ineffective and frustrate the hearing de novo (afresh) ordered by the Supreme Court.

    “The lower court has ably stated the decision of the Supreme Court. This court as well as the parties are duty bound to obey and ensure the enforcement of the Supreme Court’s decision aforesaid. This court will not be a party to the intransigence of the applicant to truncate the decision of the Supreme Court.,” Justice Ige said.

    Since the December 18 ruling by the Court of Appeal, both sides to the dispute have been claiming victory. While Alfa’s supporters interpreted the ruling to mean that the Kogi East Senatorial seat has now become vacant, Aidoko’s supporters think otherwise.

    In his reaction to the ruling, Aidoko argued that his seat has not been declared vacant by the Court of Appeal. He added that at no point did the issue of candidacy or vacant seat come up in the ruling by the Court of Appeal.

    Why the confusion? What way out?

    A senior member of the Nigerian Bar Association (NBA) in Abuja, Abdulkarim Yunusa the confusion arises because cases are not determined on time. He argued that if cases were promptly heard and dispensed with by the courts, the confusing scenarios would not be witnessed.

    As a way out, he said; “For me, the way to go is for the courts to always ensure that cases do not get unnecessarily held down in court. When a judge recuses himself from a case, he should give reasons.

    “You don’t just withdraw from a case by merely citing personal reasons. What constitutes personal reasons? Judges should be firm and committed to their responsibilities. That to me, will save litigants from ala this confusion, the psychological trauma and waste of scarce resources,” Yunusa said.

    A senior law lecturer, Professor Josiah Chukwuma blamed that inability of the judges to connect with their environment for the confusion that mostly greet courts’ pronouncements. He noted that most judges have detached themselves from the society and interpret the law in abstraction.

    He cited the 2012 decision by Justice Abubakar Talba of the High Court of the Federal Capital Territory (FCT) in the criminal trial of John Yakubu, who pleaded guilty, in a plea bargain arrangement, to be involved in the theft of billions of naira in pensioners’ funds.

    Prof Chukwuma noted that the public outrage generated by the judge’s decision to give Yakubu an option of N750,000 fine, which later earned the judge a year’s suspension by the National Judicial Council (NJC), was because he did not consider the effect of his decision on the society.

    He said, where judges are mindful that they operate in societies inhabited by rational minds, they will learn to allow the interest of their societies and the possible impact of their decisions on such societies, reflect in their interpretation of the law.

    Prof Chukwuma said: “It is high time judges are reminded that they are able to sit comfortably in their chambers and dish out decisions because the society is at peace. Where the society is in turmoil, no one is immune to its negative impact.”

  • Court orders litigants to maintain peace

    A Lagos High Court has ordered parties in a land tussle, Oba Tajudeen Ekunmoro, Toyin Eleku, Femi Bakare and six others to maintain peace, pending the hearing and determination of the case.

    Justice Kazeem Alogba ordered tthe status-quo.

    The subject of litigation is a vast hectars of land at Oko-Olomi, Bogije area of Ibeju-Lekki, Lagos State.

    Justice Alogba’s order is coming after another order by Justice Atinuke Ipaye.

    Justice Ipaye said: “Construction activities of whatever nature shall cease forthwith on the property pending the hearing and determination of the chairman’s’ motion on notice for temporary retraining orders.”

    Bakare praised Justice Alogba for concurring with the order of Justice Ipaye.