The InfoStride Forum

Continued from last edition

OPINION which he offered. That the discussion came up casually. He added that a few days to the date fixed for the judgement, a letter was served on him as Presiding Justice signed by the Chairman, National Judicial Council and Chief Justice of Nigeria to abate further ac­tion on the appeal in view of petitions ad­dressed to him as Chairman of the Coun­cil, the petitions were against him and other Justices who sat on the Panel and the PCA.

The issue of putting the judgment on hold was addressed in open Court by all Coun­sel to the parties. The Panel ruled that since their integrity was on the line, they should hold on pending the determination of the petitions against them. As a result of that, the judgment was not delivered but keep on hold. He said that, he never disclosed the outcome of their decision to anyone. He denied the contents of the affidavit sworn to by Usman Muhammadu Buhari. He also did not release a copy of the judgement to anyone. He added that the matter on the' motion was not also disclosed off; because his understanding oUhe letter is to put eve­rything on hold including the motion.

4.03.12. At this juncture, it will be appro­priate to consider a presentation made be­fore the Panel by some very distinguished Jurists namely; Hon. Justice B.O Babalakin, Hon. Justice Anthony I. Iguh and Hon. Jus­tice M:M.A Akanbi. The three of them sat together and Hon. Justice Babalakin made the presentation on their behalf.

In his oral testimony, he recalled that he was a Member of the National Judicial Council and his 10 year tenure ended 'on 30/06/2010. He also recalled that when he was a Member of the NJC there were al­legations and counter allegations against the NJC and the PCA. The allegations re­late to Sokoto Governorship election dis­pute. It became a .volatile matter. When the matter came before the NJC, it decided that the elders Committee from members of the NJC be set up to look into the matter and then brief Council.

The members of the Committee comprised retired Justices of the Supreme Court and retired President of the Court of Appeal.

The following were selected as members of the Committee:-

i) Hon. Justice B. O. Babalakin, CON; ii) Hon. Justice A. B. Wali, CON; -

iii) Hon. Justice Anthony 1. 1guh, CON; iv) Hon. Justice E. O. Ayoola, CON; and v) Hon. Justice M. M. A. Akanbi, CFR. The members chose Hon. Justice B.a.

Babalakin as the Chairman. He said, the Committee approached the matter with the seriousness it deserved. They got all the pa­pers filed in respect of the matter and they sat from 12 noon to 6pm same day. The Committee deliberated on the matter and reached conclusion in respect of the two parties concerned. The witness maintained that the purpose of setting up the Commit­tee was to reconcile the parties on the issue which tended to damage the integrity of the Judiciary.

The conclusions the Committee came out with were as follows:-

1) We found no misconduct made against the President, Court of Appeal.

2) The Hon. CJN as Chairman of NJC has no power to interfere with any proceeding in any Court- as was done in this case.

3) That the PCA put many matter in his reply to the petition and since those mat­ters did not fall under any issue of the com­plaint, we need not go into them.

4) With regard to petition by the DPP, the Committee found that on the face of it, there was no misconduct established against the CJN".

All members of the Committee signed the document on 08/03/2010. The document was admitted in evidence as Exhibit K.

He further explained that before report­ing to the NJC, the Committee called the two, parties, the CJN and the PCA in the CJN's Chambers and intimated them of the findings made by the Committee. They both took it calmly. The witness, as the Chair­man, said he admonished them to take things easy and relate with each other well since the matter concerns the whole Judici­ary. Both parties appeared satisfied with what the Committee of elders did in the discharge of their mandate. When the Com­mittee went to CJN's Chambers, Hon. Jus­tice Ayoola had sent his apologies and went to attend to other officia1 engagement at ICPC of which he was then the Chair­man.

He further stated that the Committee then went and reported to NJC and the Council was happy that the Committee poured water on the boiling oil. The set­tlement Committee however later heard of new developments.

The witness at this juncture, tried to in­troduce some issues that were not part of their assignment as a reconciliation Com­mittee that is the issue of the appointment of the PCA to the Supreme Court after the' Reconciliation Committee had ceased to exist.

Under cross-examination, the witness indicated that their Committee was both a fact- finding and reconciliation -Com­mittee but the mandate given to the Com­mittee was to reconcile the parties. He said, he did not know that after the work of their Committee, there was a deluge of petitions filed before the NJC. He stated that their Committee did not take any evi­dence from anyone.

The evidence of the Chairman of the Committee could have provided the case ~s sufficient presentation of the team, but It was not to be.

A member of the team of the three ju­rists, Hon. Justice M.M.A. Akanbi out of his character, took over the arena and made many uncomplimentary remarks on a member of the Panel, just because the member served as a member of the rec­onciliatory Committee. He maintained that the present Panel was a waste of time and would not come up with any valu­able result as their Committee had already dealt with the issues under investigation.

The embarrassment actually started from the first day of the sitting of this Panel, when a Senior Counsel on the team of Lawyers representing the Hon. PCA raised objection to the participation of the Member, giving the same reason raised by Hon. Justice Akanbi. The Panel after consultations overruled the objection. The Panel believed that the reconciliation Committee of elders was entirely differ­ent both in contents and purpose. The present Panel has a much wider and more numerous issues to deal with, most of which were complaints and petitions filed before the NJC after the reconciliation Committee had misled its one day assign­ment.

The Panel thought that this would have satisfied the contenders of the member's participation on the Panel, but alas Hon. Justice Akanbi did not see it that way. Maturity prevailed, and the member at­tacked took the insults and the provocations calmly and that took care of the bad situation.

4.04 DE LIBERA nONS AND FIND­INGS

4.04.1 PART A-DPP COMPLALNT

. As mentioned earlier in this Report, the fulcrum of the DPP complaint against the -CJN is captured in the following paragraphs: -

"The present instance where the CJN in com­plete negation and violation of his powers un-· del' the Constitution has written to the Presi­dent of the Court of Appeal ordering him to stop the delivery of judgment of Sokoto State Governorship Election Appeal already slated for 24th February, 2010 is another blatant inci­dent of selfish individual or sectional interests being used to subvert the Constitution of the Federal Republic of Nigeria 1999, the fons et origo of our legal system."

a) Two allegations emerge from this com­plaint:-

i.) The CJN in complete negation and vio­lation of his powers under the Constitu­tion has written a letter stopping the de­livery of judgment of Sokoto State Governorship Election.

ii) It is another blatant incident of selfish individual or sectional interests being used to subvert the Constitution of the Federal Republic of Nigeria 1999, the fons et origo of our legal system.

b) In the course of hearing evidence from both the Chairman of the Party and the Gubernatorial- candidate, the Panel ob­served how passionate they were in pre­senting their case e.g. when General Magashi, the Chairman of the Party was giving evidence, he emphasized with pas­sion in the following words:-

"When a person has expectations and those expectations were put on hold without any Con­stitutional backup, one would feel disap­pointed, particularly when the Court of Ap­peal is the final Court on election matters".

c) In the same vein, Alhaji Dingyadi in his evidence stated that:-

"The issue of CJN's involvement in the mat­ter for ignoring provision of the Constitution to put on holt[ the judgment of the Court of Appeal in Sokoto that was ready for delivery by a letter he sent to the Justices pending the disposal of serious allegations against them. There -was no serious allegations to warrant the stay of the judgment, because no evidence of leakage was shown in Yahaya Mahmood's and Agu's petitions. That even if there was a leakage, it was not our fault. That there were occasions when judgment leaked but they were never buried",

d) The Panel having seriously considered the complaint and the evidence from the two witnesses could not help having a feel­ing that the Parties are stin pursuing the mandate of their Gubernatonal candidate.

e) The Panel however is well aware that, that mandate has been permanently fore­closed by the decision of the Supreme Court on the matter.

f) However, the Panel was not unmindful of the complaint relating to the putting on hold of the Sokoto Division of the Court of Appeal judgment slated for delivery on 24/02/2010. The Panel con­sidered all the surrounding circumstances that led to the issuance of that letter by the CJN, particularly the intention behind it.

g) It is important to consider the reasons given by the CJN that prompted him to. write that letter. The CJN in his affidavit evidence deposed in paragraphs 7(i), (ii) (iii), (iv), (v), (vi), (vii) and (vii) states as follows:-

i) "That I did not at any time, whatsoever interfere in any form or manner with the Sokoto State Gubernatorial Election Petition Appeal.

ii) That at some stage, while the appeal was pending at the Court ·of Appeal, in my capac­ity as the Chairman of the National Judicial Council, I received written Petitions addressed to ·me pertaining the said appeal.

iii) That one oj the complaints in the peti­tions was that the judgment about to be deliv­ered by the Court of Appeal in respect of the Sokoto State Gubernatorial Election Petition

Appeal had leaked.     '

iv) That I called Honorable Justice Dahiru Musdapher, the next most senior Justice of the Supreme Court and Deputy Chairman, Na­tional Judicial Council to my Chambers and showed him the petitions and sought for his advice on how the matter could be handled.

v) That Honourable Justice Dahiru Musdapher suggested that we call the Hon. President of the Court of Appeal, Hon. Justice Ayo Isa Salami to inform him of the petitions.

vi) That therefore, called the Hon. President of the Court of Appeal by telephone to come to

my Chambers.     ,

vii) That when the Hon. President of the Court of Appeal came to my Chambers, In the presence of Hon. Justice Dahiru Musdapher; I told him I had received a complaint that the judgment to be delivered in respect of the Sokoto State Gubernatorial Election Petition Appeal had leaked.

Judgment to be delivered in respect of the Sokota State Gubernatorial Election Petition

Appeal had leaked.     '

. viii) That the Hon. President of the .Court of Appeal, Justice 1. A. Salami, OFR, admitted that the judgment had leaked".

h) Another area that deserves considera­tion is the piece of evidence given by Hon. Justice M.D. Muhammad, the Presiding Justice of Sokoto Division. It goes like this:­. "However, on 24/02/2010, after hearing sub­missions of Counsel for the Parties as to whether or not to put the judgment on hold the Justices ruled that we would in the interest of our reputation which was at stake put the judgment on hold pending the investigation of allegations against us".

i) It is also worthy to note that the PCA did not comply with the letter written to him with regard to putting on hold the judgment. This is reflected in a paragraph of the reply written to the CJN by the PCA dated 22/02/2010. The paragraph reads as follows:-

"In view of all the above, I do not think I am in a position to carry out Your Lordship's or­der to stop the appeal pending the determina­tion of the investigation of "serious allega­tions' made against me and the Justices in the two petitions. No responsible tribunal will con­sider the contents of the two documents to amount to serious l11dictmenL In any case, Your Lordship In an unprecedented manner have taken over the manning of the Court of Appeal. You have unilaterally made the order, which I respectfully consider unlawful to stop the judgment.

j) All of these things having taken place, what emerged in the view of the Panel is that the letter of the CJN was not accorded the obedience it was perceived to have done ..

k. Be that as it may, the Panel had no difficulty in holding the view that under the Constitution and the laws of the land, no apparent power has been bestowed on the NJC of which the CJN is the Chairman to interfere in any proceedings of the le­gally constituted Court.

1) The Panel however finds no sem­blance of ill-motive, selfishness of an individual or sectional interest being used to subvert the Constitution in the steps taken by the CJN, Chairman of the NJC.

m) In view of the surrounding circum­stances, the Panel finds that the CJN was motivated by an apparent urge to protect the administration of justice and avoid breach of peace. The Panel finds that the CJN acted in good faith to have taken the steps he took.

n) The Panel finds that absence of statu­tory guidelines to assist the CJN as Chair­man of the NJC in dealing with such a situ­ation as has arisen, in this case is a seri­ous gap that needs to be addressed.

4.04.2 PART B – COMPLAINTS AGAINST THE CJN BY THE PCA

a) Arising from the petitions received from Yahaya Mahmooa, Esq and Alfred Agu, Esq, the CJN held discussions with Bon. Justice Oahiru Musdapher, which led to invitation extended to the PCA in the CJN's Chambers, further discussions were held among the three of them about the petitions. The issue was not solved and the CJN wrote a letter to the PCA on 18/ 02/2010, attaching copies of the two peti­tions and the PCA was asked to ensure that further action on the judgment of the Sokoto State Governorship Appeal be put on hold pending the determination of the petitions. Similar letter was forwarded to the Justices who sat on the Panel with a similar request on 19/02/2010.

b) On 22/02/2010, the PCA replied the letter where he raised many weighty is­sues. The issues can be summarized as follows:-

i) CJN was accused of interference with Court Proceedings.

ii) CJN may wittingly or unwittingly bring the Judiciary into gross disrepute.

iii) CJN was accused of inviting the PCA to his Chambers on 08/02/2010 to request him to instruct the Justices to dismiss the appeal. That Oahiru Musdapher, JSC was present. The request was rejected.

ii) On a second invitation to the CJN's Chambers on 16/02/2010, the PCA al­leged that he was given petition to read, after which the PCA was asked by the CJN if he would not disband the Panel for which the PCA said he would discuss the matter with the Panel. The CJN insisted that he the PCA should disband the Panel

ii) On a second invitation to the CJN's Chambers on 16/02/2010, the PCA al­leged that he was given petition to read, after which the PCA was asked by the CJN if he would not disband the Panel for which the PCA said he would discuss the matter with the Panel. The CJN insisted that he the PCA should disband the Panel and report back to him, which he never did to date. The PCA restated his resolve not to carry out the order of the CJN to stop the judgment pending the determination of the investigations of serious allegations made against the PCA and the Justices in the-two petitions.

v) The CJN was accused of taking over the running of the Court of Appear in an unprecedented manner.

c). These are the discernible accusations levelled against the CJN by the PCA in his reply to tne CJN's letter dated 18/02/2010.

d.) In his reply to these accusations, the CJN in his affidavit denied interfering at any time in any form or manner with Sokoto State Governorship Election Peti­tion Appeal. He contended that while the said appeal was pending, in his capacity as the Chairman of the National-Judicial Council (NJC), he received petitions ad­dressed to him rertaining the said appeal.

e) That one 0 the complaint in the peti­tion was that the judgment to be delivered by the Court of Appeal had leaked, and he invited Hon. Justice Dahiru Musdapher, the Deputy Chairman of the NJC to his Chambers and served him the petitions and asked for his advice on how to han­dle the matter. Hon. Justice Musdapher suggested that the PCA be invited to be informed of the petitions. He, the CJN in­vited the PCA to his Chambers to discuss the matter. The cm alerted the PCA about the petitions and the leakage of the judg­ment. That the PCA was said to admit tile leakage and the CJN informed him that the only way to maintain the integrity of the Court was to re-constitute the Panel as the proper cause of action to take.

£) That after that advice, the PCA left them with the impression that he would disband the Panel, that when the PCA did not get back to him on the matter, the CJN decided to forward the petitions for his comment and that of the Justices on the Panel.

g) That the CJN pointed out that he had at no time whatsoever met with the PCA alone, privately or officially to discuss the Sakata State Governorship Petition Ap­peal, that he was at all material times in the company of Hon. Justice Dahiru Musdapner. That at no time whatsoever did he request the PCA to instruct the Sokoto Panel to dismiss the appeal.

h) The CJN contended that ne only took steps in the matter in his capacity as the Chairman, National Judicial Council when he wrote to the Panel on 19/02/ 2010 to put on hold the judgment pending the investigations of the petitions against them. That he did not in his letter iiirect the Panel not to deliver judgment.

i) In a further affidavit deposed to by the PC A, he highlighted some issues raised in the CJN's affidavit. He confirmed that Hon. Justice Dahiru Musdapher was present when the CJN invited him on 08/02/2010 in respect of the Sokoto matter. He asserted that there was no judgment leakage and none was shown to him. He denied admitting that there was leakage. He repeated the accusation that the CJN had directed him to inform the Sokoto Panel to dismiss the appeal, which he in­formed him, he could not. He said no ad­vice was offered to him by Justice Musdapher, but the CJN gave him instruc­tion to disband the Sokoto Panel. The PCA asserted that on the issue of leakage of judgment, it was on 08/02/2010 that the CJN invited him to his Chambers and then wrote to him a query on 18/02/2010. He maintained that as at 08/02/2010 there was no petition against him on any issue.

D The Panel found it necessary to dwell extensively on the affidavit evidence of both the CJN and the PCA, because none of them gave oral evidence before the Panel but other people did. Hon. Justice Dahiru Musdapher who happened to be a key fig­ure mentioned by both Parties gave oral evidence and also submitted a written statement, the contents of which in fact are similar to the oral evidence he gave.

k) Hon. Justice Dahiru Musdapher gave evidence to sax that he went to the Cham­bers of the CJN, who informed him that the judgment in Sokoto Appeal had leaked. He however did not see the peti­tions. He and the CJN agreed that the judg­ment having leaked would lose its cred­ibility and when the PCA arrived in the CJN's Chambers, they suggested to him that the Panel be disbanded and a new one constituted. At the end of their discus­sions, the PCA gave them the impression that he was going to discuss with the mem­bers of the Panel. He affirmed that the is­sue of the CJN asking the PCA to dismiss the appeal was not discussed in his pres­ence.

1) Under cross-examination by the PCA Justice Musdapher said he remembered the day the PCA met him and the CJN. He stated that the CJN said there was going to be a security breach if the judgment was read. He emphatically denied that the CJN had told the PCA to deliver the judgment in favour of the respondent.

m) The other relevant piece of evidence is the evidence of Hon. Justice M.D. Mo­hammed, who presided over the Sokoto Panel. He confirmed receiving the CJN's letter dated 19/02/2010. He mentioned that on 24/02/2010 after hearing submis­sions of Counsel for the parties as to whether or not to put the judgment on hold as indicated in the CJN's letter, the Jus­tices ruled that they would in the interest of their reputation which was at stake put the judgment on hold pending the investi­gation of allegations against them. On the issue of leakage of the judgment, he de­nied ever discussing the judgment with Usman Buhari or anyone. He added that the pending motion· was not disposed off; because his understanding of the letter is to put everything on holo including the motion.

n) Having regard to the conflicting affi­davit evidence of both the CJN and the PCA, the Panel is of the view that the evi­dence of these two independent witnesses will provide the true situation.

o) Here again, there are two contending issues:-

i) The issue of whether the letter of the CJN to put on hold the delivery of the judg­ment, amounted to interference in the Sokoto State election appeal. The evidence of Hon. Justice M.D. Mohammad touched on that. The Panel believed that this issue had been sufficiently addressed in our earlier finding when we considered the OPP complaint on the same accusation of unlawful interference in this matter. We adopt those findings here as well.

-ii) The issue of instructions allegedly given by the CJN to the PCA in the pres­ence of Hon. Justice Oahiru Musdapher to dismiss the appellant's appeal. The CJN emphatically denied this allegation and the clear evidence of Hon. Justice Musdapher confirmed the CJN's position. The matter needs no further discussion.

p) There is however still the issue of an­other direction to disband the Panel and constitute another one.

g) In his evidence, Justice Musdapher said this was given as an advice believing on the assumption that the judgment leaked. He further stated that after the dis­cussion, the PCA left them with the im­pression that he was going to discuss the matter with the Panel. There is no gain­saying the fact that the PCA no matter what impression he gave to both Justice Musdapher and the CJN, he had no inten­tion of doing what he was advised to do.

He said so in clear terms in his letter to the CJN where he said:-

"On 16th February, 2010 you invited me to your chambers and gave me -to read the peti­tion written by Mr. Yahaya Mahmood. After reading you asked if I would not disband the panel. I told Your Lordship I would discuss it with the Panel, a suggestion Your Lordship did not appreciate, and you made it clear, and asked me to just disband them and report back to you. I have not reported back to you to date."

r) The Panel believes that somewhere along the line there is clear break down of communication and trust between the Chief Justice of Nigeria and the President of the Court of Appeal.

s) There is evidence to show that an ad­vice was given to the PCA to·disband the Panel and constitute another one based on the belief that the judgment was leaked. However, as shown earlier, the PCA was not willing to carry out this advice, no mat­ter what impression he gave the CJN and Hon. Justice Musdapher.

t) From all the circumstances there is available evidence that the CJN did not give instructions to the PCA to direct the Panel to dismiss the appeal.

u) The Panel is of the view that the issue of leakage of the judgment for now remains like an early morning fog that never en­dured after the rising of the sun.

v) The Panel finds no evidence that the CJN wittingly or unwittingly brought the Judiciary into disrepute.

w) The Panel finds the allegation that the CJN had taken over the running of the Court of Appeal in an unprecedented manner as unfounded.

4.04.3 PART C – COMPLAINTS BY MR.

YAHAYA MAHMOOD. AND MR.

ALFRED .N. AGU

This relates to two petitions forwarded to the CJN on 15/02/2010 by Mr. Yahaya Mahmood and Mr. Alfred N. Agu against the PCA.

a) It is important to point out, there are two segments:-

i). The first segment relates to petitions of Yahaya Mahmood, Esq and Alfred N. Agu, Esq.

ii) The second segment relates to the affi­davit of Senator Umaru Oahiru dated 09/ 03/2010, even though it clearly hinged on the petition of Yahaya Marhmood, Esq. Be that as it may, it required a separate treat­ment because it raised fresh issues to which the PCA responded to. The affida­vit evidence of both Mr. Yahaya Mahmood and Mr. Alfred Agu were set out earlier. However, Yahaya Mahmood, Esq gave oral evidence.

b) The evidence of Yahaya Mahmood, Esq, gave historical facts of a long time as­sociation with the PCA and how eventu­ally Yahaya Mahmood, Senator Umaru Oahiru and the PCA met, particularly dur­ing the time of the confirmation of the PCA in the Senate. The evidence gave account of the role played by Senator Umaru Oahiru and others like Ahmed Bola Tinubu in the process of the confirmation. One thing leading to another, the issue of Sokoto State Appeal Panel surfaced, and in the course of that both Yahaya Mahmood and Senator Umaru Oahiru vis­ited the PCA twice, in his guest house and his office. Their discussion both in the house and the office centred on the consti­tution of panel to take up the Sokoto gov­ernorship appeal. There was a disagree­ment as to the need to set up the panel at the time the panel was set up. This brought about serious disagreement between Yahaya Mahmood and Senator Umaru Oahiru on one hand and the PCA on the other hand.

c) On his part, the PCA in an affidavit made some allegations that the duo of Yahaya Mahmood and Senator Umaru Oahiru attempted to persuade him to in­terfere with Hie work of the Panel he set up to hear the Sokoto appeal or to persuaae the Panel to dismiss the appeal.

To be continued

Osun Defender