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Nigerian Civil Society Group call for review of Appeal Courts conflicting judgements

By Akinmola Ade
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A Nigerian Civil Rights Group-Society for the Rule Of Law in Nigeria(SRLN) has called on the Nigerian Judiciary Reform committee recently set up by the Chief Justice Of Nigeria Hon Justice Dahiru Musdapher to embark on a review of conflicting judgements delivered by the nations Court of Appeal to remove the present confusion in precedences of the court in dispensing justice to the people.

In a Memorandum submitted to the Committee through the office of the CJN,dated 26 October 2011 and signed by Comrade Chima Ubeku, its Coordinator,the SRLN reffered to several instances of conflicting judgements which it said had led to avoidable injury to litigants in their quest for justice. The group said it was necessary to ensure that the injury should not be perpetuated in the judiciary from the continous reliance on such judicial pronouncements particularly relating to election petitions which had been proved were obtained in questionable circumstances.

The society recalled that the NBA President Mr. Joseph Daudu recently decried decisions of the Abuja, Makurdi, Calabar and Kaduna divisions of the Court of Appeal on the manner of initiating pre-hearing sessions as conflicting. The NBA president went further to say that; “court judgments are now given on cash and carry basis''.Two days later, the Chief Justice of Nigeria, Justice Dahiru Musdapher was confronted with questions bordering on conflicting judgments from the appellate court during his screening at the Senate.

From all these conflicting judgments, Nigerians have been the ones at the receiving end, having to pay dearly for glaring errors of our Appeal court justices, especially on election disputes on which theAppeal Court has overriding powers. Until the recent Constitutional amendment, the Court of Appeal was the final court for election disputes,with only that of the President getting to the Supreme Court.

Up till now, it has not been deemed necessary to consider the pains of victims of the judicial contradictions from the Appeal Court. At best, they have suffered in silence, with no remedy in sight.

SRLN gave instances in Lagos ,Ogun, Osun, and Ekiti election cases where panels consisting of sometimes the same judges and with similar facts arrived at different judicial decisions to the embarrassment of the judiciary.

The group stated in the memo interalia: ''It would be recalled that during the conferment of Senior Advocate of Nigeria (SAN) honours on 17 lawyers in April, 2010, former NBA President, Oluwarotimi Akeredolu (SAN) had said: "The bar has noticed with increasing

discomfiture the conflicting decisions emanating from our appellate

courts. The Court of Appeal has found itself in an embarrassing quagmire arising from the disparate pronouncements on matters which are, as lawyers will say, "on all fours" with all decisions reached by the same court.”

Even as far back as July, 2008, Justice Niki Tobi of the Supreme Court had noted while delivering a judgment that; “even though the Abuja Division of the Court of Appeal had delivered a judgment in a similar case, the Enugu Division of the court refused to follow that decision even when the facts of the case were the same, thereby creating confusion.”

Situations abound where facts of cases were the same in all fours but different judgments were given by the Appeal Court. For instance, in Agbaje vs Fashola (2008 6 NWLR Pt 1082 at Page 127-128 paras d-f ) and Fayemi vs Oni, facts of the cases were the same but different judgments were delivered.Whereas, the Electoral Act 2006 stipulated that photographs of candidates must be embossed in the ballot papers and that of Mr. Jimi Agbaje, who was the candidate of the Democratic People Alliance (DPA) was not embossed in the ballot papers used for the election, the Appeal Tribunal in Agbaje vs Fashola per Adamu JCA upheld Governor Babatunde Fashola's election,saying it was not the fault of the party or the candidate.Also, the use of colour of biro other than the one prescribed in the Electoral Manual was also dismissed as inconsequential in Agbaje vsFashola supra.

However, in Fayemi vs Oni, the Appeal Court, in its judgment of February 18, 2010 nullified elections in 63 out of the 177 wards in Ekiti State just because accreditation was done with RED BIRO instead of BLUE BIRO stipulated by the Electoral Manual.

Also in its judgment of October 15, 2010, in the Fayemi vs Oni case, the Appeal Court concluded that there was no accreditation of voters in Ido/Osi LG, in spite of the availability before it of the relevant FORMS EC8A, EC8B, which had all the votes cast at the polling units and collated at wards and authenticated by all relevant agencies and parties. Added to this, the Appeal Court in its infinite wisdom shifted the burden of proof from the Petitioners to the Respondents in violation of the legal maxim; “He who asserts must prove.”

Again, in that particular case, the Appeal Court went further to give the appellants a judgment on an issue not pleaded before it, thereby turning itself to “Father Christmas”. The Petitioners did not in their pleadings claim that election did not take place but rather that the elections that took place were fraught with irregularities, basis upon which the petition was brought before the Court. The simple principle of law of evidence is to the extent of Ss 135 & 136 and as stated

clearly in the case of Adighije v Nwaogu (2010)12 NWLR (pt 1209) by

the same court.
In Amosun vs. Daniel, the Appeal Court presided over by Justice M.L. Garuba held that one Tunde Yadeka was not an expert in the examination and analysis of election materials. However, the same Appeal Court in Aregbesola vs. Oyinlola ruled that Tunde Yadeka was an expert. Curiously enough, Justice Garuba who read judgment on Amosun vs. Daniel; and

Justice Adamu Jauro, who was a member of the panel, were also members of the panel on the Aregbesola vs. Oyinlola. These two cases with similar facts but on which two different judgments weredelivered were decided within a period of less than two months! Also on the Osun State matter, involving Governor Rauf Aregbesola of the Action Congress of Nigeria (ACN) and Prince Olagunsoye Oyinlola of the Peoples Democratic Party (PDP), the Appeal Court turned itself to a FATHER CHRISTMAS, cancelling all votes in FIVE Wards that were not in contention before their Lordships. These wards include Ward 7 Boluwaduro Local Government, Ward 7 Ifedayo Local Government and the three wards in Modakeke, Ife East Local Government. In Aregbesola's petition, he stated thus: “Your petitioners aver and will contend at the trial that except for three wards viz: Modakeke Ward 1, Modakeke Ward 2 and Modakeke Ward 3, there was no valid election conducted in compliance with the Electoral Act in Ife EastLocal Government” In Paragraph 60, Aregbesola said on Bolorunduro Local Govt thus; “It was only in ward 7 where the people of the town barricaded the entrances to the town while voting lasted that voting was concluded and results announced”But the Appeal Court cancelled all votes in all the above wards that were not in contention!''

In concluding the SRLN stated:'' these conflicting judgments will continue to be cited as authorities, and further conflicting judgments will continue to be given based on them. This is dangerous to our judicial system. If the stance of the CJN, Justice Dahiru Musdapher on clearing the rots in the judiciary and restoring its lost glory is to be taken seriously, review of all contradictory judgments of the appellate

court is an issue that must be addressed without further delay. Until this is done, victims of these contradictory judgments will continue to suffer while the judiciary in Nigeria will continue to be

seen as an avenue for “Cash n Carry” judgments, where laws and legal authorities do not determine cases. Remedy for miscarriage of justice is never statute bar and the time to begin

that process of remedy is now!''