The judgment of the Nigerian Court of Appeal overruling that of
the Federal High Court’s Justice Okon Abang in Okezie Ikpeazu v
Uche Ogah (the Abia State governorship tussle) seems to signal
another phase in the negative development at the Nigerian Court of
Appeal.
The Nigerian Court of Appeal used to be the apex court in
Nigeria, when the final adjudicatory authority for Nigeria was the
Privy Council in England. Even in those days when it might ha ve
been surmised that the reason for the reference to England for
final adjudication might be the perception that Nigerian judges
were not regarded as capable of delivering justice according to the
law, public record shows that it was not the case.
Since his speech in December 2014, at the annual judges’
conference, admonishing the Justices of the Court of Appeal against
giving conflicting judgments especially in political cases, the
Chief Justice of Nigeria, Justice Mahmud Mohammed, has had no
respite from the public calling for investigation into this trend
in the Court of Appeal.
It is in this context that one must see the judgment of the
Justice Helen Ogunwumiju-led panel of the Court of Appeal that went
out of its way to attack the integrity of a judge of the Federal
High Court for, in their opinion, erring in law, and whose only sin
really is that he defied the political establishment.
When did it become such a mortal sin for a judge to err in law?
Doesn’t the Court of Appeal do so every other day? When did the
Court of Appeal become so accusatorial and judgmental of the
character of judges on the basis of their erring in law?
It is still quite probable that the Supreme Court may disagree
with the Court of Appeal on all the issues it treated in that
appeal and one would have expected that, in the best tradition of
the profession, the Court of Appeal would have left room for that
possibility rather than take on the air of infallibility so
arrogantly displayed in its judgment. It is even quite possible
that another division of the Court of Appeal may have reached a
different conclusion on each of the issues.
What were the real issues of law in this appeal? “Whether or not
Governor Ikpeazu of Abia State gave false information to INEC in
his nomination form”. No more, no less.
Section 31 of the Electoral Act 2010 (as amended) states
that:
“(5) Any person who has reasonable grounds to believe that any
information given by a candidate in the affidavit or any document
submitted by that candidate is false may file a suit at the high
court of a state or the Federal High Court against such a person
seeking a declaration that the information contained in the
affidavit is false.
“(6) If the court determines that any of the information
contained in the affidavit or any document submitted by that
candidate is false, the court shall issue an order disqualifying
the candidate from contesting the election.”
From the above, it would be seen that the issue of forgery that
the Court of Appeal majored on was therefore unnecessary, as the
trial judge himself had emphasised in his judgment that he was not
dealing with the commission of a crime but breach of Section 31 of
the Electoral Act.
What the trial judge was called upon to decide in the context of
the above quoted provisions was: “Whether Governor Ikpeazu had
given any false information in his affidavit or other
document”.
The facts as presented to the judge is that Ikpeazu had claimed
payment of his tax as and when due for the prescribed period. The
lower court found that information to be false and therefore
declared him disqualified.
Now, if he was disqualified, was the trial court competent to
make a consequential order for the necessary changes that INEC must
effect as a result of that finding?
The decision of the Supreme Court delivered on Friday, the 18th
day of January 2008 in the case of Rotimi Amaechi v INEC (a
pre-election matter, in which no less than the Supreme Court had
intervened to ensure that its order disqualifying Celestine Omehia
who had been wrongly presented by the party was given effect) sheds
light on this.
George Oguntade JSC (as he then was), in most gracious language,
pointed out the duplicity of the Court of Appeal in the way it
deliberately, not only conflicted with its earlier judgment in the
Ararume case, but also overruled the decision of the Supreme Court
in that case in order to rule in favour of Omehia.
Oguntade JSC made no accusations and refrained from attacking
the Justices involved even though everyone could guess what was
happening at the time.
All he said in all decorum was: “The matter, however, does not
end there. The court below which had decided in the Araraume case
that the reason ‘error’ did not meet the requirement of section 34
later decided in the present case that the fact that Amaechi had
been indicted was good enough a reason for not following the
decision of this court and its own in the Araraume case.”
The Justice Ogunwumiju panel, placed in the same position, would
have called for the head of the Justices after accusing them of
standing the law on its head and pointing accusing fingers at
them.
Again, on the issue of consequential orders, the Supreme Court,
per Oguntade JSC, went on to reason as follows: “I now consider the
relief to be granted to Amaechi in this case even if elections to
the office of the Governor of Rivers State had been held. As I
stated earlier, there is no doubt that the intention of Amaechi, to
be garnered from the nature of the reliefs he sought from the court
of trial, was that he be pronounced the governorship candidate of
the PDP for the April 2007 election in Rivers State. He could not
have asked to be declared Governor. But the elections to the office
were held before the case was decided by the court below. Am I now
to say that although Amaechi has won his case, he should go home
empty-handed because elections had been conducted into the office?
That is not the way of the court. A court must shy away from
submitting itself to the constraining bind of technicalities. I
must do justice even if the heavens fall. The truth, of course, is
that when justice has been done, the heavens stay in place. It is
futile to merely declare that it was Amaechi and not Omehia that
was the candidate of the PDP. What benefit will such a declaration
confer on Amaechi? Now, in Packer v. Packer 1954 P. 15 at 22,
Denning M. R., in emphasising that there ought not to be hindrances
or constraints in the way of dispensing justice, had this to say:
“It takes courage for a judge to take this attitude once having
decided what the needs of justice demand.”
Amaechi’s case is today celebrated as a study in judicial
activism and courage even though, in that case, the court went on
to give a relief that was not even claimed by the plaintiff – all
in a bid to do justice. The Supreme Court rationalised it as
follows: “What is the argument on the other side? Only this, that
no case has been found in which it had been done before. That
argument does not appeal to me in the least. If we never do
anything which has not been done before we shall never get
anywhere. The law will stand still whilst the rest of the world
goes on and that will be bad for both.”
It is this activism and courage in the present case that the
Justice Ogunwumiju panel has expressed such vitriol about. The
panel even had the effrontery to try and distinguish this case from
Amaechi’s case by saying that the Supreme Court did not order the
issueance of certificate of return to Amaechi in that case. What
does that mean? Did it mean that there were two governors at the
same time because Omehia still had the certificate of return?
What does it matter anyway when the effect in both cases was
that a person who had already been sworn in as the governor of a
state and had started operating as one was asked to relinquish his
position in favour of another person who did not contest in the
election?
One of the Court of Appeal Justices in this Ikpeazu case even
went on to say, erroneously, that it was only the Election Petition
Tribunal that could retrieve a certificate of return. Retrieval of
the certificate of return issued to an unqualified person elected
to a position is merely consequential upon the finding that he
ought not to be in that position and does no damage to the law
where the finding of “not qualified “ is well founded.
The Court of Appeal in this case was distracted from the real
issue in the case, viz: “Was Ikpeazu qualified or not?”
If he provided false information in his form, the law says he is
disqualified. That was what Justice Abang found.
The result of that finding must be that he ought to be removed
from the position he attained by that falsehood. The idea that the
case was about forgery was a deliberate red herring thrown to make
the case appear like one involving commission of a crime, when all
the burden of proof for determining whether the form contained
falsehood was “on the balance of probabilities” and not “proof
beyond reasonable doubt” as suggested by the Court of Appeal.
The reaction of the Court of Appeal to the judgment of the lower
court curiously mirrored the reaction of Ikpeazu: First,
incredulity that the trial judge had the temerity to order that a
sitting governor be removed, replaced by a plaintiff and secondly a
public and unrestrained attack on the personality of the judge.
One cannot find any excuse for the Court of Appeal’s language in
the Ikpeazu appeal. When judges are so swayed by the assumed status
of a counsel to accept his prejudice and to indulge in his vitriol
against a judge perceived as “so junior” one wonders where the
profession is headed under such leadership.
Even though the CJN has implied that the conflicting judgments
of the Court of Appeal might be connected with corruption in the
judiciary, he made no attack on any of the Justices involved
personally, leaving that until there was proof that any judge was
involved in corruption. The Court of Appeal in turn now finds it so
easy to point the finger at another judge.
The immediate effect of this, like most things Nigerian leaders
love to do, will be to entrench the institutionalised
mediocrity.
Spineless and incompetent judges (and there are some in the
Nigerian judiciary) now have a ready excuse for doing nothing to
remedy injustice for fear that the Court of Appeal will attack them
personally and point accusing fingers at them. This is most
discouraging and backward.
If this decision is indicative of a new Court of Appeal then
Nigeria is in trouble.
Hassan, a lawyer, wrote from Sokoto, Sokoto State
The post New Nigerian Court of Appeal in Ikpeazu v Ogah
context appeared first from online sources and was reposted by the community on Welcome to 9jalegal –
Nigeria’s Leading Legal Information and Services Portal.
No related posts.
The judgment of the Nigerian Court of Appeal overruling that of
the Federal High Court’s Justice Okon Abang in Okezie Ikpeazu v
Uche Ogah (the Abia State governorship tussle) seems to signal
another phase in the negative development at the Nigerian Court of
Appeal.
The Nigerian Court of Appeal used to be the apex court in
Nigeria, when the final adjudicatory authority for Nigeria was the
Privy Council in England. Even in those days when it might ha ve
been surmised that the reason for the reference to England for
final adjudication might be the perception that Nigerian judges
were not regarded as capable of delivering justice according to the
law, public record shows that it was not the case.
Since his speech in December 2014, at the annual judges’
conference, admonishing the Justices of the Court of Appeal against
giving conflicting judgments especially in political cases, the
Chief Justice of Nigeria, Justice Mahmud Mohammed, has had no
respite from the public calling for investigation into this trend
in the Court of Appeal.
It is in this context that one must see the judgment of the
Justice Helen Ogunwumiju-led panel of the Court of Appeal that went
out of its way to attack the integrity of a judge of the Federal
High Court for, in their opinion, erring in law, and whose only sin
really is that he defied the political establishment.
When did it become such a mortal sin for a judge to err in law?
Doesn’t the Court of Appeal do so every other day? When did the
Court of Appeal become so accusatorial and judgmental of the
character of judges on the basis of their erring in law?
It is still quite probable that the Supreme Court may disagree
with the Court of Appeal on all the issues it treated in that
appeal and one would have expected that, in the best tradition of
the profession, the Court of Appeal would have left room for that
possibility rather than take on the air of infallibility so
arrogantly displayed in its judgment. It is even quite possible
that another division of the Court of Appeal may have reached a
different conclusion on each of the issues.
What were the real issues of law in this appeal? “Whether or not
Governor Ikpeazu of Abia State gave false information to INEC in
his nomination form”. No more, no less.
Section 31 of the Electoral Act 2010 (as amended) states
that:
“(5) Any person who has reasonable grounds to believe that any
information given by a candidate in the affidavit or any document
submitted by that candidate is false may file a suit at the high
court of a state or the Federal High Court against such a person
seeking a declaration that the information contained in the
affidavit is false.
“(6) If the court determines that any of the information
contained in the affidavit or any document submitted by that
candidate is false, the court shall issue an order disqualifying
the candidate from contesting the election.”
From the above, it would be seen that the issue of forgery that
the Court of Appeal majored on was therefore unnecessary, as the
trial judge himself had emphasised in his judgment that he was not
dealing with the commission of a crime but breach of Section 31 of
the Electoral Act.
What the trial judge was called upon to decide in the context of
the above quoted provisions was: “Whether Governor Ikpeazu had
given any false information in his affidavit or other
document”.
The facts as presented to the judge is that Ikpeazu had claimed
payment of his tax as and when due for the prescribed period. The
lower court found that information to be false and therefore
declared him disqualified.
Now, if he was disqualified, was the trial court competent to
make a consequential order for the necessary changes that INEC must
effect as a result of that finding?
The decision of the Supreme Court delivered on Friday, the 18th
day of January 2008 in the case of Rotimi Amaechi v INEC (a
pre-election matter, in which no less than the Supreme Court had
intervened to ensure that its order disqualifying Celestine Omehia
who had been wrongly presented by the party was given effect) sheds
light on this.
George Oguntade JSC (as he then was), in most gracious language,
pointed out the duplicity of the Court of Appeal in the way it
deliberately, not only conflicted with its earlier judgment in the
Ararume case, but also overruled the decision of the Supreme Court
in that case in order to rule in favour of Omehia.
Oguntade JSC made no accusations and refrained from attacking
the Justices involved even though everyone could guess what was
happening at the time.
All he said in all decorum was: “The matter, however, does not
end there. The court below which had decided in the Araraume case
that the reason ‘error’ did not meet the requirement of section 34
later decided in the present case that the fact that Amaechi had
been indicted was good enough a reason for not following the
decision of this court and its own in the Araraume case.”
The Justice Ogunwumiju panel, placed in the same position, would
have called for the head of the Justices after accusing them of
standing the law on its head and pointing accusing fingers at
them.
Again, on the issue of consequential orders, the Supreme Court,
per Oguntade JSC, went on to reason as follows: “I now consider the
relief to be granted to Amaechi in this case even if elections to
the office of the Governor of Rivers State had been held. As I
stated earlier, there is no doubt that the intention of Amaechi, to
be garnered from the nature of the reliefs he sought from the court
of trial, was that he be pronounced the governorship candidate of
the PDP for the April 2007 election in Rivers State. He could not
have asked to be declared Governor. But the elections to the office
were held before the case was decided by the court below. Am I now
to say that although Amaechi has won his case, he should go home
empty-handed because elections had been conducted into the office?
That is not the way of the court. A court must shy away from
submitting itself to the constraining bind of technicalities. I
must do justice even if the heavens fall. The truth, of course, is
that when justice has been done, the heavens stay in place. It is
futile to merely declare that it was Amaechi and not Omehia that
was the candidate of the PDP. What benefit will such a declaration
confer on Amaechi? Now, in Packer v. Packer 1954 P. 15 at 22,
Denning M. R., in emphasising that there ought not to be hindrances
or constraints in the way of dispensing justice, had this to say:
“It takes courage for a judge to take this attitude once having
decided what the needs of justice demand.”
Amaechi’s case is today celebrated as a study in judicial
activism and courage even though, in that case, the court went on
to give a relief that was not even claimed by the plaintiff – all
in a bid to do justice. The Supreme Court rationalised it as
follows: “What is the argument on the other side? Only this, that
no case has been found in which it had been done before. That
argument does not appeal to me in the least. If we never do
anything which has not been done before we shall never get
anywhere. The law will stand still whilst the rest of the world
goes on and that will be bad for both.”
It is this activism and courage in the present case that the
Justice Ogunwumiju panel has expressed such vitriol about. The
panel even had the effrontery to try and distinguish this case from
Amaechi’s case by saying that the Supreme Court did not order the
issueance of certificate of return to Amaechi in that case. What
does that mean? Did it mean that there were two governors at the
same time because Omehia still had the certificate of return?
What does it matter anyway when the effect in both cases was
that a person who had already been sworn in as the governor of a
state and had started operating as one was asked to relinquish his
position in favour of another person who did not contest in the
election?
One of the Court of Appeal Justices in this Ikpeazu case even
went on to say, erroneously, that it was only the Election Petition
Tribunal that could retrieve a certificate of return. Retrieval of
the certificate of return issued to an unqualified person elected
to a position is merely consequential upon the finding that he
ought not to be in that position and does no damage to the law
where the finding of “not qualified “ is well founded.
The Court of Appeal in this case was distracted from the real
issue in the case, viz: “Was Ikpeazu qualified or not?”
If he provided false information in his form, the law says he is
disqualified. That was what Justice Abang found.
The result of that finding must be that he ought to be removed
from the position he attained by that falsehood. The idea that the
case was about forgery was a deliberate red herring thrown to make
the case appear like one involving commission of a crime, when all
the burden of proof for determining whether the form contained
falsehood was “on the balance of probabilities” and not “proof
beyond reasonable doubt” as suggested by the Court of Appeal.
The reaction of the Court of Appeal to the judgment of the lower
court curiously mirrored the reaction of Ikpeazu: First,
incredulity that the trial judge had the temerity to order that a
sitting governor be removed, replaced by a plaintiff and secondly a
public and unrestrained attack on the personality of the judge.
One cannot find any excuse for the Court of Appeal’s language in
the Ikpeazu appeal. When judges are so swayed by the assumed status
of a counsel to accept his prejudice and to indulge in his vitriol
against a judge perceived as “so junior” one wonders where the
profession is headed under such leadership.
Even though the CJN has implied that the conflicting judgments
of the Court of Appeal might be connected with corruption in the
judiciary, he made no attack on any of the Justices involved
personally, leaving that until there was proof that any judge was
involved in corruption. The Court of Appeal in turn now finds it so
easy to point the finger at another judge.
The immediate effect of this, like most things Nigerian leaders
love to do, will be to entrench the institutionalised
mediocrity.
Spineless and incompetent judges (and there are some in the
Nigerian judiciary) now have a ready excuse for doing nothing to
remedy injustice for fear that the Court of Appeal will attack them
personally and point accusing fingers at them. This is most
discouraging and backward.
If this decision is indicative of a new Court of Appeal then
Nigeria is in trouble.
Hassan, a lawyer, wrote from Sokoto, Sokoto State
The post New Nigerian Court of Appeal in Ikpeazu v Ogah
context appeared first from online sources and was reposted by the community on Welcome to 9jalegal –
Nigeria’s Leading Legal Information and Services Portal.
No related posts.
.. http://9jalegal.com.ng/news/court-cases/new-nigerian-court-appeal-ikpeazu-v-ogah-context/