Constitutionally, the Judiciary is the third arm of government, in addition to the Executive and the Legislature. It is primarily charged with interpreting and applying the laws, in all cases, for the sustenance of good governance in the country.
It is the traditional duty of the judiciary to adjudicate and dispense justice, without bias, fear or favour, in cases involving the two arms of government and or individuals.
Infact, it is a widely held belief that the judiciary is the last hope of the common man.
The position of the Judiciary is, therefore, sacred and sacrosanct in the configuration of things.
But, lately, the role of the judiciary in determining cases arising from the nation’s political terrain has raised more questions than answers.
Fingers are being pointed at conflicting rulings and judgments emanating from the courts as the fuel required by politicians to cause crisis and chaos, while laying claims to their various positions on serious issues of governance.
Observers, however, say that the judiciary has, somehow, willy-nilly, turned itself into a sitting duck by the manner with which it has handled various matters bordering on politics. Cases that have fallen into this category abound at the lower and higher courts in the country.
A former president of the Nigerian Bar Association, Mr. Rotimi Akeredolu (SAN), recently expressed embarrassment at what he described as the conflicting decisions emanating from the appellate courts.
According to Akeredolu, “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 the 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, “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.”
As the former NBA boss has observed, situations abound where facts of cases were the same “on all fours” but different judgments were given by the Appeal Court.
Citing an instance in Agbaje vs Fashola (2008, 6 Nigerian Weekly Law Reports Part 1082 at Page 127- 128, paragraphs d-f ) and Fayemi vs Oni, Akeredolu said that the facts of the two cases were the same, but different judgments were delivered on them.
He explained that although the Electoral Act 2006 stipulated that photographs of candidates must be embossed on the ballot papers, that of Mr. Jimi Agbaje, who was the candidate of the Democratic Peoples Alliance was not done on the ballot papers used for the election. Yet, the Appeal Tribunal in the case upheld Governor Babatunde Fashola’s election.
The tribunal, he said, had averred that the mistake was neither the fault of the party nor that of the candidate.
Also, the issue of the colour of biro used other than the one prescribed in the Electoral Manual, was also dismissed as inconsequential by the tribunal, Akeredolu said.
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 a red biro instead of the 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 Local Government Area, in spite of the availability before it of the relevant forms EC8A and EC8B, which had all the votes cast at the polling units and collated at wards, and authenticated by all relevant agencies and parties.
In addition to this, the former NBA president said, 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, he said, went further to give the appellants a judgment on an issue not pleaded before it, thereby turning itself to a “Father Christmas”.
Akeredolu noted that the petitioners did not, in their pleadings, claim that election did not take place. Rather, they claimed that the elections that took place were fraught with irregularities, the basis upon which the petition was brought before the court. “The simple principle of law of evidence is to the extent of Sections 135 & 136, and as stated clearly in the case of Adighije v Nwaogu (2010)12 NWLR (part 1209), by the same court,” he said.
Also, 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. But the same Appeal Court in Aregbesola vs Oyinlola ruled that Tunde Yadeka was an expert in that field. Curiously, Justice Garuba, who read the 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 case. These two cases had similar facts but two different judgments were delivered on them, within a period of less than two months!
Also, on the Osun State matter involving Governor Rauf Aregbesola of the Action Congress of Nigeria and Prince Olagunsoye Oyinlola of the Peoples Democratic Party, the Appeal Court, again, according to the prominent lawyer, turned itself to a “Father Christmas”, cancelling all the votes in five wards that were not in contention before the court. These wards included Ward 7 Boluwaduro Local Government, Ward 7 Ifedayo Local Government and the three wards in Modakeke, Ife East Local Government.
In Aregbesola’s petition, it was 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 East Local Government.”
In Paragraph 60, Aregbesola said on Bolorunduro Local Government, “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.”
The most recent case that practically revealed the dangerous trend of conflicting judgments by the Nigerian judiciary are the contradictory rulings on the Abia State governorship election. Two Federal High Courts gave judgments that were poles apart on the same matter.
According to reports, the Federal High Court, Abuja, refused to vacate its June 27 order that Governor Okezie Ikpeazu should be removed from office for presenting fake tax documents, while also affirming that the certificate of return, which the Independent National Electoral Commission issued on June 30 to the plaintiff in the suit, Uche Ogah, was valid.
But in Owerri, another Federal High Court dismissed a suit filed by another Peoples Democratic Party governorship aspirant, Friday Nwosu, against the election of Ikpeazu.
Nwosu had instituted the suit against Governor Ikpeazu on the grounds that the governor’s tax documents were forged, just as Ogah did.
But while ruling on the suit, Justice A.I. Allagoa, said Nwosu could not prove that the tax documents were forged.
Justice Okon Abang of the Federal High Court in Abuja had, on June 27, ordered the removal of Ikpeazu on the grounds that the tax documents were forged. He directed that Ogah, who was later given certificate of return by INEC, be sworn-in in his stead as governor of Abia State.
Following the conflicting rulings, Governor Ikpeazu immediately headed to an Abia State High Court sitting in Osisioma to obtain an order, which restrained the state chief judge from swearing in Ogah as his replacement.
The legal acrobatic display is yet to end as the political situation in the state remains unclear with both Ikpeazu and Ogah holding on to their different positions, relying on the cases decided in their favour by two courts having coordinate powers.
PDP national chairmanship case
Another classic case with the confusing imprint of the judiciary is the controversy over the chairmanship of the Peoples Democratic Party. The party had approached the Judiciary to resolve the matter. But while one of the cases was heard in Port Harcourt, Rivers State, where the court upheld the leadership of the group led by the former governor of Kaduna State, Senator Ahmed Makarfi, in the other matter, which was decided in Lagos, the court ruled against the same Makarfi group. With this situation, both factions could be said to have the right to lay claim to the leadership of the party, depending on the location and disposition of whoever is watching events.
Obasanjo, President Buhari’s fears
Following this untoward situation, politicians have continued to express concern over the matter.
Former president Olusegun Obasanjo lamented the current situation where courts of coordinate jurisdiction struggle to lord it over one another in giving conflicting rulings and judgments on the same matter.
Obasanjo noted that the progress of the country lies in the hands of the judiciary, which he advised to live up to expectations in the discharge of its constitutional duty.
He stressed that the judiciary and the law profession had a very important role to play in rescuing the country from the claws of social vices that had been hampering her development.
Also, President Muhammadu Buhari expressed concern about the need for the judiciary to make more conscious effort to help his government in the administration of justice. President Buhari particularly accused the judiciary of frustrating his administration’s crusade against corruption.
“I am worried that the expectation of the public is yet to be met by the judiciary with regard to the removal of delays and the toleration of delay tactics by lawyers.
“When cases are not concluded, the negative impression is given that crime pays. So far, the corruption cases filed by government are not progressing as speedily as they should in spite of the administration of Criminal Justice Act of 2015, essentially, because the courts allow some lawyers to frustrate the reforms introduced by law.”
Need to clear Augean stable
Other prominent Nigerians are of the view that the judiciary needs to clear its own Augean stable by flushing out some bad eggs that have portrayed that arm of government in bad light.
In this regard, the Chairman of the Presidential Advisory Committee on Anti-Corruption, Prof. Itse Sagay said that though the judiciary had not relented in its efforts to ensure the success of the current administration, it had become imperative for it to flush out those that had been found sabotaging the efforts of the others.
“To my utmost knowledge, I will say the judiciary in the country is not doing badly, but some judges, either out of misunderstanding or deliberate intention, have not helped at all. And to be sincere with you, these calibre of people are being shown the way out of the judiciary, though there are still some of them. But be that as it may, the majority of our judges are conscious of their duty, which is to flush out corruption from our system through their judicial powers,” Sagay said.
Sharing Sagay’s view is a former secretary-general of the pan-Yoruba socio-political group, Afenifere and the National Democratic Coalition, Chief Ayo Opadokun.
Opadokun expressed regret that the image of the Nigerian judiciary had been dragged in the mud due to the frequency of cases in which conflicting rulings and judgments have been delivered.
Pointing at the Abia governorship case, the activist maintained that the conflicting judgments emanating from the judiciary were clear indications that the nation’s judiciary itself had become somewhat confused in discharging its responsibility.
“As a lawyer, I’m not in the business of general statement on the judiciary. But with particular respect to the Abia debacle, I consider it very unfortunate that some elements on the Nigerian bench have made themselves veritable instruments to be used to desecrate the Nigerian judiciary. It is unfortunate that the bench, as represented by the judges of either the Federal or state high courts, have not taken sufficient caution about their conduct, to the extent that they have seemingly decided to jump into the murky water of Nigerian politics,” he said.
But a former governor of the old Kaduna State and National Chairman of the Peoples Redemption Party, Alhaji Balarabe Musa, commended the nation’s judiciary.
Musa maintained that though certain factors have, over time, hindered the performance of the judicial arm of government, it has done more than enough.
“Generally, circumstances that surround our political events do not allow the Nigerian judiciary to perform better than at present. But even at that, I implore them to be conscious of their duties in order to help the country get out of the current mess, especially in politics,” he said.
Similarly, the Chairman of the Abuja branch of the NBA, Mr. Victor Abasiakan-Etim, said that the Nigerian judiciary deserved accolades rather than criticisms.
“Of all the three arms of government, namely the Legislature, the Executive and the Judiciary, I will give it to our judiciary,” he said.
On the allegations that the courts have been giving conflicting decisions on issues, Abasiakan-Etim said, “Most times, it is not the judges that are at fault but the parties involved. For me, if a party takes one case to one court, it ought not to take the same case to another. But you find that the plaintiff in this case is a defendant before another judge on the same case. Depending on how the facts are portrayed before the court, the judge is bound to make his pronouncement, one way or the other. Most times, it is the litigants who bring these courts into conflict. I think there should be sanction, once one is found to be abusing the judicial process, so that we save ourselves from these embarrassment.”