Atiku’s Appeal: Parties can’t dictate to CJN over panel composition—Ex-Chief Judge, SANs

  • Say position of opposition parties laughable

By Ise-Oluwa Ige

Six prominent lawyers and jurist including a one-time Chief Judge of Lagos State, Justice Samuel Omotunde Ilori at the weekend dismissed as laughable the alarm raised by opposition political parties that the government of President Muhammadu Buhari was plotting to manipulate the Supreme Court to handpick justices that would hear the presidential election petition appeal by Atiku Abubakar in breach of the court’s convention.

The stakeholders who spoke with Bar and Bench Watch at separate times and venues apart from Justice Ilori are a former President of the Nigerian Bar Association (NBA), Chief OCJ Okocha (SAN), a former Minority Chief Whip of the Imo State House of Assembly and legal luminary, Chief Mike Ahamba (SAN) and a former Attorney-General and Commissioner of Justice of Delta State, Mr Charles Ajuyah (SAN).

The two others who are respected Senior Advocates of Nigeria (SAN) pleaded anonymity simply because they are on the legal team of President Muhammad Buhari and former Vice President Atoka Abubakar.

According to all the bigwigs in the legal profession that spoke with Bar and Bench Watch, they posited that the opposition parties by their allegation were merely putting their cart before their horse, saying at this point, nobody has the right or powers to interfere with the discretion of the Chief Justice of Nigeria, Justice Tanko Muhammad on who should be nominated into the seven-member panel that would hear the Atiku’s case.

They also contended that they could only be heard after the list of the justices empanelled to hear the case has been made public.

One of them who is a die-hard critic of President Muhammadu Buhari’s government, Chief Mike Ahamba (SAN) said that he had appeared before the Supreme Court panel constituted to take and determine a presidential election petition appeal similar to Atiku’s and that the issue of convention was never a challenge.

It would be recalled that by a unanimous verdict, a five-member panel of the Presidential Election Petition Tribunal on September 11, 2019 dismissed a joint petition by the Peoples Democratic Party (PDP) and its presidential candidate, Alhaji Atiku Abubakar seeking to oust President Muhammadu Buhari from office.

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The court held that the joint petition lacked merit.

Both the PDP and Atiku, after a thorough study of the judgment filed a joint  appeal on September 24, this year at the registry of the Supreme Court within the time allowed by law to challenge the decision of the tribunal which endorsed President Buhari’s election..

However, 16 days after the appeal was filed, less than two weeks ago, the Coalition of United Political Parties (CUPP) raised the alarm that it had uncovered a plot by the government of President Muhammadu Buhari to alter and jettison the age-long tradition of selecting the seven most senior Justices as members of the court’s panel that would hear the presidential election petition appeal by Atiku.

The CUPP said the practice at the Supreme Court since 1979 has been to empanel seven most senior justices of the apex bench to take any appeal emanating from the decision of the Presidential Election Petition Tribunal.

The CUPP vowed to reject any move to handpick justices of the Supreme Court in violation of the tradition at the apex bench, adding that they would not have confidence in a handpicked panel of Justices to hear Atiku’s appeal.

The PDP caucus at the House of Representatives had at a different venue repeated the allegation while APC dismissed them as irresponsible.

Reacting to the allegation, a one-time Chief Judge of Lagos State, Justice Samuel Omotunde Ilorin said the composition of the panel of the Supreme Court on any appeal pending before it has never been and will never be the business of any party before the court.

“It is absolutely the right of the CJN to nominate or constitute panel members as he wishes. Nobody can interfere with that right.

“Once he has empanelled a panel, nobody can set it aside except if the panel is made known and you have an issue with a panel member, you can say, look, that panel member, I don’t want him. He has been an enemy of my party for a long time.

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“But it is not enough to make such allegation. The person or the party alleging must bring proofs to substantiate it.

“Of course, the CJN can now look at the allegation and the proof. If there is merit in it, he can withdraw that panel member and substitute with another.

Justice Ilori also dismissed as balderdash the position that since 1979, the Supreme Court has always nominated the most senior seven justices of the court to hear an appeal like the Atiku’s

Hear him: “No, no, no, no. I don’t know what they mean by the most senior justices. Once you have become a justice of the Supreme Court, you are a justice of the Supreme Court.

“There is no seniority in the Supreme Court. But there is what we call precedence of members. By that, it means if the justices are going somewhere, which one goes first. And when you are distributing things to members of the Supreme Court, you will follow that precedence.

“Beside that precedence, which is the habit, the custom of the Supreme Court for a long time, nobody interferes with the decision of the CJN on whoever he wants to select,” he added.

As if corroborating the position of the ex-Chief Judge of Lagos State, a respected member of the inner bar and former President of the Nigerian Bar Association (NBA), Chief OCJ Okocha (SAN) said composition of Supreme Court panel is the sole business of the CJN.

According to him, “The truth and the principle of law on this issue is that a party cannot choose which judge must hear his case. But a party can object to a particular judge on the panel that will hear his case if he is of the opinion that such judge will not guarantee him fair hearing.

“A party can raise issue. Once that is raised, it has to be examined and dealt with dispassionately. However, a man cannot be a judge in his own case.

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“Clearly, in this case, the PDP, has raised an issue about the constitution of that panel. But I don’t know where the PDP got its information. But what I will say is that if the panel of justices that will hear the case has not been constituted, we expect that it is constituted.

“The sooner, the better so that any party that has an issue with the panel can raise it and same addressed so that the appeal can be heard timeously.

Also reacting, another Senior Advocate of Nigeria based in Warri, South-South region of the country and former Attorney-General of Delta State, Mr Charles Ajuyah (SAN) also toed the path of earlier contributors.

According to him, “I don’t think any political party has the right to dictate to Mr CJN on who should be nominated into the Supreme Court panel.

“The court is deemed to be independent. The justices of the Supreme Court are all equal. It is just that one of them is primus inter pares. They all have the capacity to hear the case.

“But the CJN has worked with all of them. He knows them and their areas of strength. He can pick those he thinks are versatile in the area of law which the case is all about in the composition of the panel.

“I don’t think there is anything different in this case. I see no reason why any meaning should be read into the composition of the panel that will hear the case.

“In any case, it is a factual matter which requires application of law to the facts. The principles are well settled by the Supreme Court. It is application of law to facts. I do not see any reason anybody should make politics out of it.

Another senior lawyer, former member of Imo State House of Assembly and die-hard critic of President Muhammadu Buhari’s government, Chief Mike Ahamba (SAN) also disagreed with the opposition on the issue of composition of the Supreme Court panel on the Atiku’s case.

According to him, “Purely, composition of panel is an internal affairs of the Supreme Court. It is the Chief Justice of Nigeria who will decide who to constitute into the panel and consequently I don’t see any reason for any controversy.

“Maybe after composition of the panel, if anybody sees anything wrong about it, the person can come out to say it. It is then we will know what the person is talking about.