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JUDICIARY IN 2011: YEAR OF RIDICULE AND HOPE

By NBF News
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Perhaps, for the first time since the nation's independence in 1960, 2011 will go down as the year of unprecedented exposure to ridicule and disgrace of the judiciary, from the people. This sudden loss of respect by the third arm of government was a direct fallout of the faceoff between its two principal leaders, immediate past Chief Justice of Nigeria (CJN), Justice Aloysius Katsina-Alu and suspended President of Court of Appeal (PCA), Justice Ayo Salami.

It had its roots in the 2007 Sokoto State governorship election tussle between Governor Aliyu Wamakko of the Peoples Democratic Party (PDP) and Alhaji Muhammadu Dingyadi of the Democratic Peoples Party (DPP). The year also witnessed a head on collision between the bar and the bench as the Nigeria Bar Association (NBA) led by Joseph Daudu (SAN) took on Kastina-Alu over his perceived undue interference and lack of respect for the bar.

According to startling revelations from the Sokoto saga, there was attempt to influence the election petition panel at the Court of Appeal to tilt the verdict in favour of PDP candidate by the ex CJN. But it was not all crises as the judiciary was still able to perform its role in several notable cases that highlight its importance in the socio-political equation of the country.

Kastina-Alu/ Salami face-off
Justice Katsina-Alu, according to the suspended PCA, had put pressure on him to compromise the Court of Appeal's verdict on the prolonged Sokoto State governorship legal tussle by either disbanding the original panel, which he (Katsina-Alu) believed was about to give a verdict adverse to the governor's interest or direct the panel to give judgment in the governor's favour on the grounds that the petition he received contained an allegation that the judgment of the appeal panel which was yet to be delivered had leaked.

Such accusations from a high ranking judicial officer against the CJN could not be discountenanced, as it confirmed public suspicions about the independence, fairness and impartiality of the court in some of the controversial verdicts delivered by our judges.

Eventually, Justice Katsina-Alu stopped the panel from delivering its verdict in what was described in the legal circle as judicial kidnapping of justice especially when the issue in question was outside the statutory power of the apex court. The NBA probed the crisis. Its verdict clearly indicted the former CJN for his perceived unfair interference in the issue that was statutorily outside his purview.

However, the NBA had set up a 12-member panel on February 21, 2011, to investigate the CJN/PCA face-off, to deliberate on the corruption eating into and corroding the entire judicial system. Members of the committee included Chief Thompson Okpoko (SAN), Chief Idowu Sofola (SAN), Chief Bamidele Aiku (SAN), Dr. S. S. Ameh (SAN), Prof. G. A. Olawoyin (SAN), Emmanuel Toro (SAN), Chief Asam Asam (SAN), Marcus Saleh and Oba Ulasi. Other members were Mrs. Stella Ugboma, Alhaji M.U. Ibrahim and Mr. Ebenzer Obeya.

In its report, the Okpoko-led 12-man panel indicted the Chief Justice and two lawyers, Alfred Agu and Mahmood Yahaya. The high points of the reports of the NBA committee and its counterforce provided by the NJC summarized below are quite revealing.

According to the NBA committee, 'when Justice Salami refused to interfere with the proceedings of the Sokoto Election Appeal Panel, Messrs Agu and Mahmood took the matter to the CJN who readily acceded to their request and, without considering what the petitioners were alleging as misconduct, promptly directed that further proceedings on the appeal be put on hold.

'Both counsel played material part in the action taken by the CJN which brought about the crisis in the judiciary which resulted in the CJN/Salami standoff'.

The committee also pointed out that the petitions of Agu and Mahmood were all tailored to achieve one purpose, which was, to delay the hearing and determination of the election appeal filed by Dingyadi and DPP.

The Okpoko committee reported that 'the visits by Mahmood to Salami with a view to influence him to disband the Sokoto Governorship Election Panel set up by him on basis of personal relationship when other counsel in the appeal were not present constitutes a breach of Rule 31(4) of the Rules of Professional Conduct of Legal Practitioners.'

The committee also stated that the petition addressed by Mahmood to the CJN with intent that Katsina-Alu might influence Salami in the performance of his judicial duties constituted a breach of Rule 30 of the Rules of Professional Conduct for Legal Practitioners.

The report also stated that contrary to allegations that the judgment of the Sokoto election appeal panel was leaked, it did not find any proceedings showing a judgment of the Sokoto Court of Appeal in which such judgment or order was made.

In what appears like countering the NBA panel report, the National Judicial Council (NJC) where the CJN solely appoints 14 out of 21 members set up a five-man panel, headed by a former president of the Court of Appeal, Justice Umaru Abdullahi, to also investigate the face-off. The panel had retired Justices A. V. Wali, A. Iguh, Olayinka Ayoola and Mustapha Akanbi as members.

The panel exonerated Justice Salami since no serious complaints of misconduct were made against him in any of the petitions by Agu and Mahmood. It was stated in the panel's report that the NJC or the CJN has no power to interfere in any judicial proceedings as Katsina-Alu did on the Sokoto governorship dispute.

It also stated that '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.

However, it found 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.

The 153-page report concluded: '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 ex-CJN acted in good faith to have taken the steps he took.' It therefore did not find the former CJN guilty but dismissed Salami's allegations against him as frivolous.

The crisis reached its climax when President Goodluck Jonathan appointed Justice Dalhatu Adamu as acting President of the Court, pending the resolution of all issues relating to the crisis and suspended Salami ostentatiously on recommendation of the NJC. Peeved by the development, the NBA kicked and ordered its members to withdraw from the council.

It also absolved the Justices of the Court of Appeal who served on the Sokoto State Governorship Appeal Panel namely Musa Dattijo Mohammad, Paul A. Galinje, John Inyang Okoro, Mas'oud Oredola and Regina O. Nwodo of any complicity in the matter and therefore had no issue to answer. But Salami filed a suit before the Federal High Court, Abuja, seeking a perpetual injunction to restrain the NJC from acting on the report of the Auta Panel, which reviewed the report of a Fact-Finding Committee headed by Justice Abdullahi.

The Auta panel played what was generally perceived as undertaker role on the fate of Salami in what was akin to presenting a parting gift to the ex-CJN at the twilight of his tempestuous reign as the helmsman of the nation's judiciary. The controversy which characterized Kastina- Alu era has led to strident call for the review of the NJC's composition in order to guarantee its independence, fairness and impartiality.

The reasoning and logic of those calling for the review of the body cannot be faulted in view of the revelations from the crisis-riddled tenure of the immediate past CJN. The present situation, where the CJN who is the chairman of the council has power to appoint 14 out of its 21 members can hardly insulate it from the kind of over bearing influence on its decisions whenever the interest of the chairman forms part of issue before the NJC as witnessed under the immediate past CJN.

Kastina-Alu vs NBA
Kastina-Alu era also witnessed face-off between the bench and the bar. The NBA-led by Daudu could not stomach alleged overbearing attitude of the former CJN and disregard for the members of the bar. This was obvious when Daudu instructed that no lawyers should attend the swearing-in ceremony for the conferment of the rank of Senior Advocate of Nigeria (SAN) on the ground that fixing the date to coincide with the Bar conference was an affront and disrespect to the entire Bar:

'His lordship (CJN) traditionally chairs the opening ceremony and his official invitation had long been forwarded. I informed his lordship about this sterling event sometime in February this year when I paid him a courtesy visit. I consider the fixing of the swearing-in of the senior advocates to a date, i.e. the 26th of August, 2011, which is the date fixed for conference communiqué, press conference and closing ceremonies, as an affront and disrespect to the entire Bar.

'I know as a matter of fact and record that the 19th of September 2011 had earlier been selected as the date for the swearing-in ceremony. It is an appropriate date as it is traditional to swear in new senior advocates at the opening of a new legal year and we understand that the said date marks the opening of the 2012 legal year.

'There are other factors such as the ongoing Ramadan fast, the vacation for the legal profession which ends on the 18th of September 2011, which are compelling reasons the ceremony ought to be shifted.

'The Bar shall boycott the ceremony and all her members are advised to stay away including those to be conferred the rank. Any legal practitioner that attends the ceremony will not be referred to by members of the NBA with any rank he possesses and if in any NBA body such as the Body of Benchers will lose all privileges and be stripped of membership of any committee or body that the NBA participates in. We advise that the ceremony be shifted to the 19th of September 2011.'

Beyond what was said in the open was the sore issue of lopsidedness in the nominees and awardees of the prestigious title of SAN by the Legal Practitioners Privileges Committee (LPPC) chaired by the CJN. Keen followers of the judiciary and legal profession observed that Katsina-Alu might have disregarded input from the NBA as he allegedlly ran a one-man show in the conferment of the award to the consternation of the NBA leadership led by Daudu.

The coming of Musdapher
The year also witnessed a most welcome transition in the leadership of the judiciary as curtain was drawn on the Katsina-Alu era. On September 26, 2011, Justice Dahiru Musdapher was sworn in as the new CJN.

It is instructive to note that Justice Musdapher appreciated the battered image of the judiciary and its implication on the sanctity of administration of justice in the country. The new CJN promised far reaching reforms that would restore the public confidence in the judiciary and arrested the rising tide of corruption in the system while promising to collaborate with the NBA to achieve these objectives.

At the opening of the special session of the Supreme Court to commemorate the start of the 2011/2012 Legal Year, Daudu decried the level of corruption in the nation's judiciary and moral depravity among members of the bench. He hit the nail on the head when he opened the pandora box of rottenness and unimaginable bastardisation of course of justice in the country. Daudu without mincing words had stated that court judgments were purchasable in the nation's courts:

'What has brought this issue of corruption among judges to the fore is the electoral justice jurisdiction conferred on courts. These courts have the capacity and power to alter results of election brought before them by a stroke of the pen.'

As soon as Musdapher became CJN he started reforming the judiciary by placing a gag order on members of the bar and bench from commenting on cases before the judiciary. He also stated his intention to review the process of judges' appointment, and to restructure the NJC and the Federal Judicial Service Commission, promising to restore the judiciary's integrity in the face of growing detestation of its doings. He recommended that 'those who abuse the privilege of judicial authority are exposed, expunged, banished and punished.

'I feel it is necessary at this point to strongly advise that those who cannot sustain true allegiance to their judicial oaths and abide by all the demands of the code of conduct for judicial officers to bow out immediately. I urge you to realise that there is no middle ground and no space on the bench for those adjudged to be unworthy arbiters of truth. The choice is simple and our resolve is absolute, henceforth there shall be zero tolerance to judicial corruption or misconduct.'

He appointed a former CJN, Justice Muhammed Uwais (rtd) to head the reform committee which he constituted to look into the problems facing the judiciary with a view to providing recommendations that would steer the third arm of government from the abyss. The committee has since submitted its report.

Landmark judgments
The year witnessed a number of landmark judgments in the judiciary. One of such was the case involving former Lagos State governor Bola Tinubu of Action Congress of Nigeria (ACN), when the Code of Conduct Tribunal sitting in Abuja dismissed the charges brought against him. He had been on trial for allegedly operating 16 foreign bank accounts between 1999 and 2007 and for false declaration of assets by not disclosing said accounts to the Code of Conduct Bureau while he served as governor.

Ruling on Tinubu's application challenging the competence of the charges, Chairman of the three-man Tribunal, Danladi Umar dismissed the charges brought against Tinubu on the ground that they were defective and incompetent.

David Mark
Another landmark judgment was that of the Court of Appeal sitting in Makurdi, Benue State when it dismissed the appeal filed by Major General Lawrence Onoja of the Action Congress of Nigeria (ACN) against Senate President David Mark of the Peoples Democratic Party (PDP).

Onoja had appealed against the decision of the national and state assemblies tribunal that earlier nullified the petition filed by him, challenging the victory of Mark in the last April 2011 general elections.

In its judgement,the presiding judge Justice Ladan Tsamiya held that by virtue of section 285(7) of the 1999 constitution, which allows 60 days from the date of judgment of an election petition for appeal has lapsed. Accordingly, the court of Appeal granted the application of the respondent and therefore dismissed the appeal.

Sacking of Senators Uba and Ekwunife
Another notable court decision was the sack of two of Anambra State's senators Andy Uba and Uche Ekwunife by the Appeal Court sitting in Enugu. The five-man panel of appellate court led by Justice Helen Ogunwumiju ordered the Independent National Electoral Commission (INEC) to conduct fresh elections in the designated constituencies.

The petitioner and candidate of the All Progressive Grand Alliance (APGA), Chuma Nzeribe had claimed that the last senatorial elections was characterised by gross irregularities and massive rigging in Aguata constituency of Anambra state and should be rendered null and void. The appellate court agreed with the petitioner and ordered fresh elections in the affected area. It also ordered Uba to vacate his seat, pending when INEC conducts a remedial election.

Baba Suwe versus NDLEA
The court in a landmark verdict by a Lagos State High Court in the case of ace comedian, Babatunde Omidina, aka Baba Suwe, against the National Drug Law Enforcement Agency (NDLEA) awarded him N25million compensation over violation of his fundamental human rights particularly his right to liberty and dignity of human person.

Baba Suwe had filed a N100million suit against the anti-narcotics agency over his arrest and detention by the agency as guaranteed by Sections 34 and 35 of the constitution of the Federal Republic of Nigeria.

Delivering the judgment in the suit, the court presided over by Justice Yetunde Idowu awarded the N25m damages and ordered NDLEA to cough out the money to Baba Suwe as damages for the gross violation and abuse of his fundamental human rights guaranteed by the constitution.

Sanusi versus bank shareholders
The controversy surrounding the statutory power of Governor of the Central Bank of Nigeria (CBN) under the enabling law was laid to rest as the court of appeal in a landmark judgment delivered by its Lagos division affirmed that the CBN governor has the power to hire and fire bank directors.

The plaintiffs in the matter who are shareholders of banks had gone to court to contest the removal of some bank directors and executives by the CBN governor, Lamido Sanusi.

Delivering its judgment, the court upheld the judgment of the lower court which was delivered by Justice Mohammed Idris of the Federal High Court in Lagos.

Lafiaji versus Federal Republic of Nigeria
In another major decision involving the former Czar of National Drug Law Enforcement Agency (NDLEA), Bello Lafiaji who had spent 18 months in prison having been convicted by a Lagos High Court for official corruption was discharged and acquitted by the Court of Appeal along with his ex-special assistant, Usman Amali who had also been convicted.

Lafiaji had in 2010 bagged a16-year imprisonment on a six-count charge of conspiracy and official corruption while Amali, got seven years which would run concurrently as four and seven years respectively. Lafiaji and Amali were arraigned in 2008 by the Independent Corrupt Practices and Other Related Offences Commission (ICPC) for conspiracy and conversion of 164,300Euro (about N37million) seized from a drug suspect, Ikenna Onochie, in November 2005.

ECOWAS Community Court on Nigerian education
Following a case Socio-Economic Rights and Accountability Project (SERAP) instituted against the Nigerian government and the UBEC, the ECOWAS Community Court of Justice in November 2010 delivered a ground-breaking judgment requiring the government to provide as of right, free quality, and compulsory basic education to every Nigerian child.

SERAP's suit had alleged violation of the right to quality education, the right to dignity, the right of peoples to their wealth and natural resources and to economic and social development guaranteed by Articles 1, 2, 17, 21 and 22 of the African Charter on Human and Peoples' Rights.

The court in its judgment had ordered the government to make adequate provisions for the compulsory and free education of every child forthwith. It also asked the government to ensure that the right to education is not undermined by corruption. The ECOWAS Court had held that the Universal Basic Education Commission (UBEC) has the responsibility to ensure that funds disbursed for basic education are properly used for this purpose.

The year 2011 would go down in history as perhaps the worst as the sacred face of the judiciary was bespattered with the mud of corruption at the highest level. The ghost of 2007 Sokoto gubernatorial elections would continue to haunt the judiciary for some time.

However, there is a glimmer of hope from the stable of the incumbent CJN who has not only promised far reaching reforms and to live by example but has also marked words with action. The nation may not wait for long before confidence is restored in the administration of justice system.