Agba Jalingo: Defence lawyer complains about judge making extra-judicial statement

Adeyinka Olumide-Fusika, lead defence Counsel to Journalist and
activist, Agba Jalingo who is facing charges of Treasonable felony
and terrorism, has complained about the presiding judge, Mr Justice
Simon Amobeda of allegedly making extra-judicial statements that
could compromise the integrity of the trial.

The further affidavit was in furtherance of his quest in
demanding for electronic recording of the secret trial.

Olumide-Fusika, who complained that the judge misrepresented him
in the alleged extra-judicial comments, deposed inter alia:

The further affidavit was in furtherance of his quest in
demanding for an electronic recording of the secret trial.

Olumide-Fusika, who accused the judge of misrepresenting him in
the alleged extra-judicial comments, deposed inter alia:

“3. However, it has come to my knowledge that on Wednesday the
13th day of November, 2019, his lordship, the Presiding Judge, the
Hon. Justice Simon Amobeda, conducted an informal session in the
case in the absence of the parties and their counsel. I got to know
of this through newspaper publications and exposure of an alleged
audio recording by an unidentified attendee of the said informal
session. A copy of the said publication (titled: “AGBA JALINGO’S
LIFE IS IN THE COURT’S HANDS, JUDGE SAYS IN LEAKED AUDIO”) and of
the electronic recording therein exposed by the online newspaper,
TheCable, is herewith attached and marked “EXHIBIT THECABLE”.

3.1. The transcription of the audio recording, by another online
publication, The ICIR, (https://www.icirnigeria.org/agba-jalingo-cast-doubt-on-judges-fairness/^[1]”) is
herewith attached and marked “EXHIBIT TheICIR”.

3.2. I have myself listened to the audio recording, and the
following is what I heard said between a voice that sounds much
like that of His Lordship, the Hon. Justice Simon Amobeda, and some
unidentified intervener(s):

JUSTICE SIMON AMOBEDA: Senior Advocate of Nigeria is now in a
criminal matter that has a death sentence attached to it. Late Gani
Fawehimi walked out of a tribunal in the Ogoni matter of Ken Saro
Wiwa when the matter went on and Ken Saro Wiwa was convicted and
sentenced to death. When you play to the gallery and you were
addressing us, he went to hire all these small students to come and
bombard the court. The court is ready to give justice, I don’t care
about any person. I cannot take instruction from him, no it is not
possible. I take instruction from God Almighty whether you believe
it or not.

When it goes in your favour Justice Amodeba knows how to do this
job, but when it goes against you, the next thing is this. He
brought an application before me and it was argued vehemently,
seriously and I delivered the ruling. And you will now going
through the back door to introduce a similar application. Of course
you should know that I will reject such application, Only for you
to say “ehn bias”. Bias in what? It is so unfortunate. That some
lawyers who came with the Senior Advocate of Nigeria who think he
is a big man from Lagos. Senior Advocate of Nigeria 2019, he did
not know I could investigate him. All of you, the moment you appear
in front of me how I know about you, you will not know. I am not an
arrogant person but I told some persons yesterday if it was those
days if not because of this. Let’s go to a little junction and
let’s see whether you can get it. If you get it you will be free,
if you cannot you will get fined. If you come here and the matter
is not in your favour then you go to the Court of Appeal, don’t
come and make noise.

Senior Advocate, the three times you appeared before me. The
first time was to bring down the court, the second time he was
gentle, the third time he was saying “Waoh! Waoh!! Waoh!!!” he was
shouting at the top of his voice. I told myself I refuse to be
intimidated, not this man. It can never happen. So Lawyers should
learn… when it goes against you, don’t carry your pen and go.

A Senior Advocate came from Lagos, carried his books and left.
The lawyers with him from this division that have appeared before
me and I have given judgment in favour of all of them let my people
go. If you are representing your client, do it very well, Not for
you to come and shout, if you shout at me, where will you go?
Nowhere. The first day you shouted, “Pra! Pra! Pra! Heyyy!” I was
looking at this young man I felt like flying from this place and
jump on him and say shut up. Some lawyers were here yesterday, they
didn’t even protect me at all. It is unfortunate.

UNIDENTIFIED INTERVENER: Sorry my Lord

JUSTICE SIMON AMOBEDA: A man is shouting at the court, it is
left for you to say, “Ah ah, this court is not like that,” lawyers
of this jurisdiction they are not meant to be shouting at the
judges. Somebody was shouting, that is not the first time he did;
and then you keep quiet and you were looking at him. He was
gallivanting and shouting at the judge, and then looking at small
small persons in the gallery. It’s just submission o. You have
already argued an application and there was a response from the
prosecution and then I said okay reply on point of law. You began
to say everything and you want me to record what you are saying.
For what? It is a criminal matter that the punishment carries death
penalty. If you walk out … And I told the young man yesterday “Your
life is now in the hands of the court.” Choose, are you going to
defend yourself or you want…, I will give you an adjournment. It’s
you alone in this. I am not here to bring injustice, It is not
possible. Some of you have been in this court where I gave judgment
and discharged and acquitted someone that was meant to spend 15-25
years in prison, I said go you did not commit the offence. How can
someone just wake up from the dreams and say I am conniving with
the prosecution. For what now? I am urging him to do what you need
to do.

The matter is adjourned till tomorrow, so let’s see what will
happen, whether they will come or not. But one thing I know is that
the trial will go on. I don’t have anything against any person, I
don’t know anybody in this place, and by the grace of God nobody
has tribal marks like me in this place. So why will I now say
because you have tribal marks like me, I will begin to favour you/
I don’t do it. If I want to favour you it will be in my chambers,
if you bring good thing I will favour you in my chambers, if you
don’t give me …

Let us avoid running down judges, It is not good for us. it is
not good for the system. You see what we go through on a daily
basis. I did not invite security men yesterday, the whole of this
place yesterday both DSS, Police and Civil Defense. I didn’t call
any person. Perhaps maybe of what they do, maybe of what they do,
maybe because of the threats here and there. When the policeman
said they threatened him, they were quarrelling threatened
witnesses said they could not threaten. How about me?

I got a letter of threats. Yes! I got a letter of threats, and
the one threatening me does not know the kind of person he is
threatening. I got a letter. The man put his name there and said I
should go anywhere, I said I don’t need to go anywhere but one day
God will catch him. Somebody will carry his hand and write letter
and address it to the court. Let us avoid doing things that will
bring down the image of the bar and the bench. My brother, my
senior sister have been kidnapped more than how many years who is
saying something? I expect that NBA in this country will down the
tools and … NBA just did, you know what the Yorubas will say “boju
boju o, boju boju”. The woman is still there; they are asking for
200 million naira we made available 20 million they said it is not
enough for them, justice of the court of appeal. Then somebody will
now shout at me it is not possible.

UNIDENTIFIED INTERVENER: I want to apologise on behalf.…

JUSTICE SIMON AMOBEDA: You were not here yesterday, how can you
say you have been a lawyer for 35 years before you became a SAN,
something was wrong somewhere. His antecedent is to go to court and
shout at judges and lawyers that’s why they denied him the SAN for
so many years. Because you got your SAN in 2019 and then you want
to come and vent your grievances on the judge, I can never … for a
wicked man. It is rather unfortunate. Some lawyers were just
watching him and just clapping their hands. Well he gave me and I
gave it back to him. You know my own is bumper to bumper no space.
If you give me, I will give you back. He was shouting and shouting,
I told them to call the next matter. He packed his bags and walked
out. Who won the battle? Was it not me. He left and I was still
sitting.

UNIDENTIFIED INTERVENER: I want to apologize on behalf

JUSTICE SIMON AMOBEDA: Don’t apologize because he is not your
mate. Because you people believe when people from outside, the
prosecution will be like this. So he is from Lagos and so what?, I
grew up in Lagos. This man grew up in Lagos … senior lawyers from
here … appeared with him. Even appeared with him. I don’t know …
they walked out on me. These are lawyers within the jurisdiction.
Ah ah. I’m not stating grammar. All of them walked out… they left
him behind. And then I told him “young man, you are alone now” all
these people… you are the one who is going to face the music. Where
do you go from here?

UNIDENTIFIED INTERVENER: My lord, I am sorry to hear that such
incident….

JUSTICE SIMON AMOBEDA: If you were yesterday you could have
spoken to him. I trust you.

UNIDENTIFIED INTERVENER: it is rather unfortunate, however, my
lord, a good dancer comprehends the…of a good drama. I am even
though disappointed that lawyers of this jurisdiction were
here…

JUSTICE SIMON AMOBEDA: They did not say anything!

UNIDENTIFIED INTERVENER: And they did not… a Senior Advocate of
Nigeria at that. It is rather unfortunate. If I were here myself, I
would have caused the senior advocate to know that … if at that
status in our legal profession, one should exhibit such tendency,
without looking back, then why should people like us be aspiring to
be there? it is a very disappointing situation. My lord, at the
same time, I want to say that the development will even make my
lord stronger because that gives you an opportunity to now… in the
future and then get a better judgment. So sorry my lord.

JUSTICE SIMON AMOBEDA: I can never subvert the course of
justice. I told the young man yesterday, if you …. Very well, I
will discharge and acquit you and heaven will not fall. That is me.
But if you don’t give me well, I will convict and sentence you and
the heaven will also not fall. It is the law we are talking about
here. Unfortunately for them they brought a late application
yesterday. The man you are shouting at that until I promise a
verbatim recorder he will no longer appear in this matter again.
How? That I did not record him very well … Eh! Sorry lets go on
with the business of the day… I am equal to the task and God has
given me boldness to do what needs to be done. Let it be known that
I can never on this seat subvert the course of Justice.

4. While I reserve my view on the rightness or otherwise of his
lordship making a case pending before him for trial and
determination (indeed, one in which the Defendant faces the
jeopardy of a sentence to death, if found guilty) the subject of
the type of open discussion, banters, expression of the judge’s
views, sentiments and thoughts on how he will likely decide the
case and convict and sentence the Defendant to death (like Ken
Saro-Wiwa) contained in the alleged audio recording, I say with all
emphasis at my disposal that what his lordship represented of me
behind my back to his jury of unidentified persons is not correct.
I further say that all that his lordship represented as happening
before him on the three occasions that I had led the defence team,
and especially on Tuesday, the 12th day of November, 2019, is
inaccurate, if not fictional.

5. It is not true that I “went to hire all these small students
to come and bombard the court”. To the best of my knowledge and
information, all the lawyers I have ever announced as part of my
team on the three occasions I was in physical attendance in the
case before his lordship are qualified lawyers. They are Messrs
Attah Ochinke (the Hon. Former Attorney General & Commissioner
for Justice, Cross-River State), James Ibor, M.M. Obono, H.B.
Teedu, I.E. Andy, C. Njong, and C. Udofia. I do not know of anyone
of them that is a student. Indeed, apart from myself that is based
in Lagos, the only other person in the defence team that is not
based in Calabar is Mr. M.M. Obono who is based in Abuja. Indeed,
His lordship had on each occasion I was before him in open court
demonstrated his familiarity with every every other member of the
defence team, and he knows they are not students.

6. I have argued only two applications before his lordship. One
was oral, the other was written.

6.1. The first one was an oral application for bail on 30/10/19,
and it was in reaction to Prosecutor’s Application for adjournment
of the trial following the re-arraignment of the Defendant on a
fresh Charge. We opposed the Application for adjournment, but in
the alternative prayed his lordship to admit the Defendant to bail
if the Prosecution was not ready to open its case. The reason for
the oral Application for bail was rejected by his lordship, and the
reason has not to the best of my knowledge arisen again to warrant
us making a similar application.

6.2. The second Application was by a Motion on Notice dated 1st
November, 2019 which prayed the Honourable Court for “AN ORDER …
varying/modifying the terms of its ruling delivered on the
23/10/2019”. The Ruling sought to be modified was one delivered on
an application by the Prosecution (not by the Defence). His
lordship had in the said Ruling attached the condition that the
orders therein made was opened to modification “from time to time”.
It was the Ruling on this Application for modification that his
lordship delivered in the morning session of Tuesday, the 12th day
of November, 2019. So, His Lordship’s record of the proceedings is
inaccurate if indeed what it contains reflects what he allegedly
stated in the audio recording that: “He brought an application
before me and it was argued vehemently, seriously and I delivered
the ruling. And you will now going through the back door to
introduce a similar application. Of course you should know that I
will reject such application” .

7. It is untrue that I at any time shouted at the Court, and/or
that at “the third time he was saying “waoh! Waoh! waoh!” he was
shouting at the top of his voice.” The “third time” was the morning
session held on Tuesday, the 12th day of November, 2019. It was not
a secret session. It was in a jam-packed court room with persons
other than his lordship and myself in attendance. There are in
existence several independent reports of what transpired, and
especially of the words I uttered and the tone with which I uttered
them (which was immediately after his lordship had delivered his
Ruling refusing the application to modify the secret trial orders
to restrict the secret session to the taking of witnesses whose
identity were not already explicit on the Proof of Evidence). None
of these independent accounts of my utterances and/or how the tone
with which I addressed the Court reported me as “saying “waoh!
Waoh! Waoh!”” or that I did so or otherwise addressed the Court
“shouting at the top of” my voice.

6.1. To the extent that his lordship’s record of the proceeding
of his morning session in the case on Tuesday, the 12th day of
November, 2019, is a reflection of this statement of his lordship
in the leaked audio recording, then I say with all emphasis at my
disposal that his lordship’s record of the proceeding is
inaccurate. I understand that there is a courtroom CCTV. I believe
that a review of it will confirm that I did not at any time during
the proceeding conduct myself in the manner depicted by his
lordship. Apart from the Courtroom CCTV I believe that the many
members of the public that attended and witnessed the proceeding
will, if required, come forth with independently taken and
indisputable evidence of what transpired before his lordship in the
morning session in this case on Tuesday, the 12th day of November,
2019. I do hope the matter is not allowed to get to that level.

7. Furthermore, the statement allegedly made by his lordship to
his jury of unidentified persons in the leaked audio that I walked
out on him is inaccurate recording, if indeed it reflects what his
lordship has on the record he took of the proceeding in which I was
in attendance before him in the morning of Tuesday, the 12th day of
November, 2019.

7.1. To the best of my own knowledge and recollection, after
delivering his Ruling, his lordship followed-up with a
pronouncement standing down the case to 12.00pm. As I had no other
business before the Court that morning, I RESPECTFULLY (in the FULL
GLARE of everybody in the courtroom) took my bow and exited the
courtroom with other members of my defence team. I dispute anything
said or any impression given to the contrary in any record of the
Court, especially by the statement allegedly made by his lordship
in the leaked audio (if that indeed is a reflection of what his
lordship has put down as his record of the proceeding had before
him in the morning of Tuesday, the 12th day of November, 2019)
that:

You were not here yesterday, how can you say you have been a
lawyer for 35 years before you became a SAN, something was wrong
somewhere. His antecedent is to go to court and shout at judges and
lawyers that’s why they denied him the SAN for so many years.
Because you got your SAN in 2019 and then you want to come and vent
your grievances on the judge, I can never… “Because you got your
SAN in 2019 and then you want to come and vent your grievances on
the judge, I can never…for a wicked man. It is rather unfortunate.
Some lawyers were just watching him and just clapping their hands.
Well he gave me and I gave it back to him. You know my own is
bumper to bumper no space. If you give me, I will give you back. He
was shouting and shouting, I told them to call the next matter. He
packed his bags and walked out. Who won the battle? Was it not me.
He left and I was still sitting.”

7.2. I dare to repeat that as the proceedings in question was
not one had in secret but in a courtroom that was jam-packed with
lawyers and members of the public, there are in existence records
taken by independent observers of all that transpired in court that
morning, which are different from that represented by his lordship
in the leaked audio recording. However, the evidence of his
lordship’s courtroom CCTV will also attest the inaccuracy of his
statement as to when, and the manner in which I (and other members
of the defence team) took our leave on the said morning.

8. I take note of the fact that his lordship is recorded to have
allegedly stated in the leaked audio that he has investigated me to
know the kind of practice I engage in. I have no doubt in my mind
that (despite all the bad things he claims to have come to know of
me) his lordship’s investigation must have revealed and confirmed
to him that I have no reputation for colluding with anyone to
thwart or defeat the cause of justice by seeking after “let my
people go” verdicts, the type by which a defendant “that was meant
to spend 15-25 years in prison” gets discharged and acquitted. I am
also sure his lordship’s investigation of my person and practice
would have further revealed to him that I am not one of those
practitioners whose stock-in-trade he alluded to in the statement
he allegedly made in the leaked audio that:

If I want to favour you it will be in my chambers, if you bring
good thing I will favour you in my chambers, if you don’t give me
….

8.1. I note the investigatory discovery allegedly made by his
lordship that I was “denied” the SAN title for “35 years”. Whether
or not I deserve the denial is not an element of the offences for
which the Defendant stands charged before his lordship in this
case. I continue to encourage the Defendant to place his trust and
confidence in the court, and to continue to believe that his
lordship not because of this factor do anything other than justice
according to law in his case.

9. I note the hints and threats of violence and incitement to
violence against my person in the leaked audio, conveyed by
statements allegedly made by his lordship, such as “I told some
persons yesterday if it was those days if not because of this.
Let’s go to a little junction and let’s see”; and “I was looking at
this young man I felt like flying from this place and jump on him
and say shut up. Some lawyers were here yesterday, they didn’t even
protect me at all.” I do believe that his lordship, if the voice in
the leaked audio is truly is, does not mean it.”