The new Nigerian court of appeal: Ikpeazu v Ogah in context

By Aliyu Muhammed Hassan

The judgment of the Nigerian Court of Appeal upturning that of the Federal High Court’s Justice Abang in Ikpeazu V Ogah (the Abia Governorship tussle) seems to signal another phase in the negative development of the Nigerian Court of Appeal.

The Nigerian Court of Appeal, used to be the Apex Court in Nigeria, when the final adjudicatory authority for Nigeria was the Privy Council in England. Even in those days when it might have been surmised that the reason for the reference to England for final adjudication might be the perception that Nigerian judges were not regarded as capable of delivering justice according to the law, the public record shows that it was not the case.

However, in recent times the decisions that have come out of that court have been cause for concern about the quality of the judges that are appointed to the Court of Appeal.

We have seen in recent times the most puerile reasoning coming from judges that ought to be matured and circumspect especially since this court should be the primary pool of talent for appointments to the Supreme Court of Nigeria.

Since his speech in December 2014, at the annual judges’ conference, admonishing the Court of Appeal for giving conflicting judgments especially in Political cases the Chief Justice of Nigeria has had no respite from public perception and pressure for investigation of this trend in the Court of Appeal.

It is in this context that one must see the judgment of the Justice Ogunwumiju led panel of Court of Appeal judges that went out of its way to attack the integrity of a Judge of the Federal High Court for, in their opinion, erring in law.

When did it become such a mortal sin for a judge to err in law? Doesn’t the court of appeal do so every other day? When did the Court of Appeal become so accusatory and judgmental of the character of judges on the basis of their erring in law. Is this not a case of the pot calling the kettle black? Should the Court of Appeal not first remove the plank in its eyes before attempting to remove the speck from the eyes of a high Court Judge whose only sin really is that he defied the political establishment?

It is still quite probable that the Supreme Court may disagree with the Court of Appeal on all the issues it treated in that appeal and one would have expected that in the best tradition of the profession the Court of Appeal would have left room for that possibility rather than take on the air of infallibility so arrogantly displayed in its judgment. It is even quite possible that another division of the court of Appeal may have reached a different conclusion on each of the issues.

What were the real issues of law in this appeal?  “Whether or not Governor Ikpeazu of Abia State gave false information to the INEC in his nomination form”.  No more, no less.

Section 31 of the Electoral Act 2010 (as amended) states that:

“(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the affidavit is false.

(6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election.”

From the above it would be seen that the issue of forgery that the Court of Appeal majored on was therefore unnecessary, as the trial judge himself had emphasized in his judgment that he was not dealing with the commission of a crime but breach of section 31 of the Electoral Act.”

What the trial judge was called upon to decide in the contextof the above quoted provisions was: “whether Governor Ikpeazu had given any false information in his affidavit or other document”.

The facts as presented to the judge is that Ikpeazu had claimed payment of his tax as and when due for the prescribed period. The lower court found that information to be false and therefore declared him disqualified. Now if he was disqualified was the trial court competent to make aconsequential order for the necessary changes that INEC must effect as a result of that finding?

The decision of the Supreme Court delivered on the On Friday, the 18th day of January 2008 in the case of Amaechi V INEC (a pre-election matter in which no less than the Supreme Court had intervened to ensure that its order disqualifying Omehia who had been wrongly presented by the Party was given effect) sheds light on this.

Oguntade JSC (as he then was) in most gracious language pointed out the duplicity of the Court of Appeal in the way it deliberately, not only conflicted with its earlier judgment in the Ararume case, but also over-ruled the decision of the Supreme court in that case in order to find in favour of Omehia.

OguntadeJSC made no accusations and refrained from attacking the justices involved even though everyone could guess what was happening at the time.

All he said in all decorum was:

“The matter however does not end there. The court below which had decided in the Araraume case that the reason ‘error’ did not meet the requirement of section 34 later decided in the present case that the fact that Amaechi had been indicted was good enough a reason for not following the decision of this court and its own in the Araraume case.”

The Justice Ogunwumiju panel,placed in the same position,would have called for the head of the justices after accusing them of standing the law on its head and pointing accusing fingers at them.

Again on the issue of consequential orders, the Supreme Court, per Oguntade JSC, went on to reason as follows:

“I now consider the relief to be granted to Amaechi in this case even if elections to the office of Governor of Rivers State had been held. As I stated earlier there is no doubt that the intention of Amaechi, to be garnered from the .nature of the reliefs he sought from the court of trial, was that he be pronounced the Governorship candidate of the P.D.P for the April, 2007 election in Rivers State. He could not have asked to be declared Governor.   But the elections to the office were held before the case was decided by the court below.   Am I now to say that although Amaechi has won his case, he should go home empty-handed because elections had been conducted into the office.? That is not the way of the court. A court must shy away from submitting itself to the constraining bind of technicalities. I must do justice even if the heavens fall.   The truth of course is that when justice has been done, the heavens stay in place. It is futile to merely declare that It was Amaechi and not Omehia that was the candidate of the P.D.P. What benefit will such a declaration confer on Amaechi?   Now in Packer v. Packer 1954 P. 15 at 22, Denning M. R. in emphasizing that there ought not to be hindrances or constraints in the way of dispensing justice had this to say.”

It takes courage for a judge to take this attitude once having decided what the needs of justice demand.

Amaechi’s case is today celebrated as a study in judicial activism and courage even though, in that case, the court went on to give a relief that was not even claimed by the Plaintiff – all in a bid to do justice.  The Supreme Court rationalized it as follows:
“What is the argument on the other side?   Only this, that no case has been found in which it had been done before.   That argument does not appeal to me in the least.   If we never do anything which has not been done before we shall never get anywhere.   The law will stand still whilst the rest of the world goes on and that will be bad for both.”

It is this activism and courage in the present case that the Justice Ogunwumiju panel has expressed such vitriol about. The panel even had the effrontery to try and distinguish this case from Amaechi’s case by saying that the Supreme Court did not order the issue of certificate of Return to Amaechi in that case. What does that mean. Did it mean that there were two governors at the same time because Omehia still had the certificate of return?

What does it matter anyway?When the effect in both cases was that a person who had already been sworn in as Governor of a State and had started operating as one was asked to relinquish his position in favour of another person who did not contest in the election.

One of the Court of Appeal Justices in this Ikpeazu case even went on to say, erroneously, that it was only the Election Petition Tribunal that could retrieve a certificate of return. Retrieval of the certificate of return issued to an unqualified person elected to a position is merely consequential upon the finding that he ought not to be in that position and does no damage to the law where the finding of “not qualified “ is well founded.

The court of appeal in this case was distracted from the real issue in the case: viz: “Was Ikpeazu qualified or not”?

If he provided false information in his form, the law says he is disqualified. That was what Justice Abang found.

The result of that finding must be that he ought to be removed from the position he attained by that falsehood. The idea that the case was about forgery was a deliberate red herring thrown to make the case appear like one involving commission of crime, when all the burden of proof for determining whether the form contained falsehood was “on the balance of probabilities” and not “proof beyond reasonable doubt” as suggested by the Court of Appeal.

The reaction of the court of appeal to the judgment curiously mirrored the reaction of Governor Ikpeazu: first, an incredulity that the judge had the temerity to ask that the sitting Governor be removed, replaced by the Plaintiff and secondly a public and unrestrained attack on the personality of the judge.

The Chief Justice has warned Court of Appeal justices to avoid “political associations”. This means Justices are not meant to associate with politicians. The language of the Court of Appeal in this case invokes the age long axiom that “bad company corrupts good manners”.

One cannot find any excuse for the Court of Appeal’s language in the Ikpeazu appeal and the entire judgment smacks of the kind of “parapo” attitude that has driven the legal profession in Nigeria into the deep mediocrity it suffers from today. When judges are so swayed by the assumed status of a counsel to accept his prejudice and to indulge in his vitriol against a judge perceived as “so junior” one wonders where the profession is headed for under such leadership.

Even though the Chief Justice has implied that the conflicting judgments of the Court of Appeal might be connected with corruption in the judiciary he made no attack on any of the justices involved personally, leaving that until there was proof that any judge was involved in corruption. The court of appeal in turn now finds it so easy to point the finger at another judge.

The immediate effect of this like most things Nigerian leaders love to do will be to entrench the institutionalized mediocrity.

Spineless and incompetent judges (and there are some in the Nigerian judiciary) now have a ready excuse for doing nothing to remedy injustice: Fear that the Court of appeal will attack them personally and point accusing fingers at them. This is most discouraging and backward.

If this decision is indicative of a new Court of Appeal then Nigeria is in trouble.