The brouhaha over composition of S’Court panel on Atiku’s case needless—Justice Ilori, SANs

In this piece, Ise-Oluwa Ige surveys the position of legal experts on the issues raised by the opposition parties on the composition of panel of Supreme Court that would take and determine the joint appeal by PDP and Atiku Abubakar against President Muhammadu Buhari’s election and concludes that the polemics engendered by the issue were needless and unwarranted.

Background

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.

The court held that the joint petition lacked merit.

The verdict aggrieved both the PDP and Atiku who claimed the decision was a mere judgment and not justice of the case.

PDP reacted hours after the judgment was delivered while Atiku kept quiet over the judgment until about 11 days when he came out to dismiss the verdict as a travesty of justice, vowing to contest the judgment at the Supreme Court.

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..

They said they believed they would get justice at the apex bench, arguing that seven ‘good heads’ are better than ‘five heads’ that decided the case at the tribunal.

The Supreme Court has yet to set up a panel that would take the joint appeal.

Issues

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.

At a press conference in Abuja addressed by CUPP National Publicity Secretary, Ikenga Imo Ugochinyere, over the issue, the group said “By the provisions of the 4th alteration of the 1999 constitution as amended, the Supreme Court of Nigeria has 60 days from the date of the filing of the Notice of Appeal. These processes have kick-started and everyone is awaiting the composition of the names of the 7-man panel by the Chief Justice of Nigeria.

“We have it on good authority that the All Progressives Congress APC-led Federal govt has been mounting undue pressure on the Chief Justice of the Federation and indeed the entire court to accept a handpicked panel and jettison the age-long tradition of the Court of selecting the most senior justices of the Supreme Court to sit on the panel.

“The disquiet and bad blood caused by the APC in the Supreme Court now is a clear desecration of the highest temple of justice in the land.

“The opposition and most Nigerians will not accept a handpicked panel neither will the pronouncement of such panel command the requite respect and confidence of the people of Nigeria and we in the opposition.

“Gentlemen, the Supreme Court is for the people, the last hope of the judiciary. The actions of the Supreme Court must inspire national confidence and deliver not just judgment but justice and that path to justice is not only about the law but about the ordinary man believing that justice has been done.

“The Supreme Court is Supreme and its words must be for the protection of the society and the people and the law.

“A grave error was done at Appeal Court and the nation is waiting to see how a man who violated the Electoral Act and was supposed to have been disqualified managed to survive at the Appeal Court. That Court failed in both the issues of law and issues of national interest,” CUPP added.

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Polemics

Four days after the allegation was made public, the Supreme Court on October 14, denied any pressure from President Buhari-led government with a strong warning issued to the CUPP to stop peddling false information about the judiciary.

The apex court had wondered why the group would peddle such dangerous rumour about it when the Chief Justice of Nigeria was yet to set up any panel for the case.

Two days after the Supreme Court reacted, the CUPP on October 16, fired back at the Supreme Court for daring to respond to its allegation in the manner it did.

The group said the apex court would have done well by merely denying the allegation and follow it up with an assurance that it would do justice to all parties in the case.

CUPP said the choice of words by the Supreme Court and the issuance of warning to it confirmed its allegation that both the Supreme Court and the APC were into a deal on the Atiku’s appeal.

Twenty-four hours after the CUPP attacked the Supreme Court over its choice of language in its reaction, the Peoples Democratic Party (PDP) caucus in the House of Representatives on October 17 backed the CUPP on its allegation against the Supreme Court and prepared a script for the CJN on the justices of the court that he should appoint into the panel that would hear the Atiku’s case.

Specifically, the PDP told the CJN to consider the following justices to serve on the Supreme Court panel: Justices Ibrahim Tanko, Rhodes-Vivour, Mary Odili, Sylvester Ngwuta, Olukayode Ariwoola, Musa Mohammed and Kumai Akaahs.

The PDP caucus position was contained in a statement signed by Hon. Kingsley Chinda (PDP Caucus Leader), Hon. Chukwuma Onyema (deputy leader), Hon. Umar Barde (Caucus Whip) and Hon. Muraina Ajibola (deputy caucus whip).

The lawmakers elected on the platform of the PDP in the House of Representatives said the Chief Justices of Nigeria since 1979 has set the precedent of appointing the most senior Justices to hear the Presidential election appeal.

 “The practice of selecting Justices to hear the appeal is expected to precede the hearing, going by age-long convention. What isn’t conventional is the present attempt to influence Chief Justice Ibrahim Tanko, going by reports in the media, to subvert the age-long and time-tested practice, precedent, and convention of selecting the most senior Justices of the Supreme Court to hear the presidential election appeal.

“Chief Justices of Nigeria through time have never in the selection of the Supreme Court’s Election Petition Appeal Panel surrendered to the phony dictates of the ruling parties.

“We are proud to state here that never in our great party’s time in power, did it or its personages, dictate the selection of panel members to Chief Justices; NEVER.

“In 2008 when President Buhari, defeated by late President Umaru Yar’Adua, appealed the decision of the Presidential Election Petition Tribunal, the then Chief Justice, Legbo Kutigi, empanelled Justices Katsina-Alu, Aloma Mukhtar, Dahiru Musdapher, Walter Onnoghen, George Oguntade and Niki Tobi to hear the appeal that year.

“He was never dictated to, nor was any attempt made by our great party to influence CJN Justice Legbo Kutigi, who stuck to a conventional practice that consistently secured the seal of approval of past Chief Justices: CJN Fatai Williams, 1979; CJN George Sowewimo, 1983; and CJN Muhammad Uwais, 2003.

“CJN Katsina-Alu also followed CJN Kutigi’s steps in 2011 and kept to the age-long conventional practice. If there is any arm of government that regards precedents and practices as almost sacrosanct, it is the judiciary. Nigerian Judiciary cannot reverse that internationally accepted practice of stare decisis just to please APC government and serve the interest of a select individual or group,” the caucus added.

Twenty for hours after the PDP mouthed the same allegation by CUPP, the APC joined the fray. That was last Friday, October 18.

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The National Publicity Secretary of the APC,  Mallam Lanre Isa-Onilu said the claim by the PDP House of Representatives caucus was unfounded, saying the alarm raised by the main opposition party had since vindicated its stance that the PDP was irresponsible.

He said: “We do not want to be drawn into engaging PDP in their usual shenanigans.

“We have just raised an alarm that our democracy lacks responsible opposition. We thought by now the main concern of every lawmaker would be to focus on the national budget. We want to be engaged on the issues of governance. That is what touches on the interests of ordinary Nigerians. That’s the focus of APC administration.”

Judge, lawyers speak on issues in contention

The controversy surrounding the composition of panel of Supreme Court that would hear the pending appeal by Atiku and his political party, no doubt, is a rare occurrence but it is also dangerous.

Stakeholders in justice administration, particularly judges and lawyers who have been keeping quiet since the controversy began on October 10 have crawled out of their cocoon to douse the tension and guide the opposing parties on the position of law on the issue.

Some of the stakeholders who spoke with Bar and Bench Watch on the issue are a one-tome Chief Judge of Lagos State, Justice Omotunde Ilorin, a former President of the Nigerian Bar Association, 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).

Although they spoke with this reporter separately, they were agreed that the controversy provoked by the opposition on the composition of the Supreme Court panel on Atiku’s appeal is needless and unwarranted.

Ex-Lagos Chief Judge, Justice Samuel Omotunde Ilori

According to a one-time Chief Judge of Lagos State, Justice Samuel Omotunde Ilori, 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.

“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.

Ex-NBA President, Chief OCJ Okocha (SAN)

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.

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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.

“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.

Ex-Attorney-General of Delta State, Mr Charles Ajuyah (SAN)

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.

Legal luminary and ex-Chief Whip of IoM State House of Assembly, Chief Mike Ahamba (SAN)

Another senior lawyer, former member of IoM 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.

Ahamba (SAN) said he had appeared before the Supreme Court panel as lead counsel to prosecute appeals arising from decisions of the Presidential Election Petition Tribunals but was not aware of the court following tradition in selecting the panel of justices to hear appeals.

Hear him: “I’m not aware of any such convention in the composition of the Supreme Court panel. I have appeared before the panel of Supreme Court that heard similar cases in the past. I am not aware that the composition was based on any convention. All I know is that the Chief Justice will select those that will hear the case,” he added.

From the totality of the reactions from those who should know what the position of law is on this kind of issue, it is expected that parties involved in this controversy would take cues and be guided appropriately in their subsequent steps on the matter and in future.