Mistake of Counsel and Judiciary as a Whipping Boy

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By Lillian Okenwa

When the news broke on Friday, July 5, 2019 that Nigeria’s Supreme Court has affirmed the election of Gboyega Oyetola of the All Progressives Congress (APC) as governor of Osun State, many concluded that the Supreme Court has mired itself in politics and corruption.

What many do not know is that the Senator Ademola Adeleke v. Adegboyega Isiaka Oyetola, Osun State election petition determined by the Supreme Court had nothing to do with who won the election.

Also many do not know that the question of electoral violence, rigging, over voting and all never arose at the apex court and that Hon. Justice Olabode Rhodes-Vivour did not affirm the election of Oyetola as winner of Osun State governorship election.

It was the opinion of many Nigerians that the Independent National Electoral Commission (INEC) merely paved the way to edge Adeleke out by cancelling 3,498 votes and ordering a rerun in seven polling units when he was already leading in the election.

All that is history now and Governor Oyetola has since been enthroned while the amiable dancing Senator Adeleke of the Peoples Democratic Party (PDP) is quietly licking his wounds somewhere.

What has not settled is the role of the Supreme Court in all this as Justice Rhodes Vivour who wrote the leading judgment has been described as a corrupt and unfair judge who turns justice on its head.

Essentially, the Supreme Court held that the judgement of the trial tribunal is a nullity because one of the judges that make up the three man panel did not sit on the day the testimonies of respondents’ Witnesses 12 and 13 were taken.

The nagging question is – Did Hon. Justice Obiorah sit on February 2019? Now the Record of Appeal is the only document that gives an indication of what took place in court. The court has a task of taking notice of its contents and resolving issues as in this case as to whether the said judge sat or not.

It turned out that when Oyetola’s counsel, Chief Wole Olanikpekun (SAN) pointed out that Obiorah did not sit on 6th February, 2019, Adeleke’s counsel, Dr. Onyechi Ikpeazu (SAN) agreed that it was so.

Dismissing the non-participation of Justice Obiorah in the February 6, 2019 proceedings at the Court of Appeal, Ikpeazu said, “Non-participation of Obiorah J in the proceedings of 6 February, 2019 thereby rendering the proceedings a nullity is a mistaken postulation because the fact that all members of the tribunal or that the Chairman of a tribunal did not sit in on all the proceedings of the Tribunal is neither an issue of lack of jurisdiction nor a matter of nullity of the proceedings.”

He did not dispute the accuracy of the proceedings to the effect that Justice Obiorah did not sit on February 6, 2019. It must be noted that in every proceeding before the tribunal, Obiora signed at the end of the proceedings for the day except on February 6, 2019.

In his processes at the Court of Appeal, Ikpeazu maintained that Justice Obiorah did not sit on February 6, 2019 but did a summersault at the Supreme Court saying that there are conflicts in the Record of Appeal.

In his judgment, Rhodes Vivour cited Oputa JSC thus: “‘A party should be consistent in stating his case and consistent in proving it. He will not be allowed to take one stance in the pleading then turn summersault during trial. Justice is much more than a game of hide and seek. It is an attempt on our human imperfections notwithstanding to discover the truth.”

Continuing, he revealed that, “An appeal is a rehearing of the case. Parties must maintain the same stance on the facts rights up to the Supreme Court. Though counsel, at times present the semblance of truth, the judge is expected to pursue the truth.

“The appellant cannot say in the Court of Appeal that the non-participation of Obiorah J in the proceedings of February 6, 2019 is neither an issue of lack of jurisdiction nor a matter of nullity of the proceeding then in the Supreme Court say that the Record of Appeal is in conflict, but fail to say what the conflict is.

“A party must be consistent with the case he sets up and not shit ground in another court as it suits his fancy. That is precisely what the appellants are doing and that is legally wrong.

“Finally, I must observe that the heading of the day’s proceedings are written by the Registrar of court signifying the judge/s that would sit on the day. This may not necessarily be so.

“The signature/s at the end of the proceedings for the day indicates which judge sat to hear the proceedings on 6 February, 2019 Obiorah’s name appears on the top of the page for the proceedings of the day, but at the end of the day’s proceedings Obiorah J did not sign and that was the only proceeding that he did not sign at the end of the day.

“Right from the Court of Appeal, Dr. O. Ikpeazu and Chief Wole Olanikpekun agreed that Obiorah J did not sign. The Record of Appeal supports their stance. I am in the circumstances satisfied with the decision of the Court of Appeal that, on 6 February, 2019, Obiorah J did not sit and so did not sign the proceedings for the day…”

After citing a plethora of previously decided cases by the Supreme Court and the West African Court of Appeal, WACA, Rhodes-Vivour further stated thus: “His absence during the hearing on February 6, 2019 affects the soundness of the judgment since he never saw or heard the testimony of RW 12 and RW13…

“It is elementary that in such a situation Obiorah J cannot come back to sit as if he never absented himself. The proper order in such a situation is for the case to start de novo (all over) and for counsel to try and suggest before this court that there might be conflicts in the Record of Appeal.

“The correct order is to declare the judgment of the trial tribunal a nullity as a result of one of the panellists not sitting on a day proceedings were held.
“Learned counsel for the appellants ought to have advised his clients that failure of Obiorah J to sit on 6 February, 2019 and then return to court and prepare and deliver majority judgment is a fundamental error.

“The tribunal was not properly constituted as regards numbers of the panellists on 6 February, 2019. The absence of Obiorah J, from the proceedings …affected the competence of the tribunal to deliver a judgment in any form…”

Ordinarily, the matter should have been referred back to the trial tribunal for retrial so that the testimonies of RW 12 and 13 could be taken before the proper number of judges. Unfortunately, the 180 days designated for hearing of election matters had elapsed at this time. Sending the matter back would have been futile.

A trial tribunal is properly constituted when three judges sit. That is the quorum. Anything to the contrary becomes a nullity.

More so, when a judge who was absent on a day’s proceedings came back to write the lead judgment, the action would negate the entire process. This is because he did not fully participate and so does not have knowledge of the whole hearing.