At no time in the recent past has the Nigerian judiciary faced such a greater challenge than the one it is currently enmeshed in.
Firstly, the judiciary and its top officers are contending with allegations of corruption which readily stick, no matter how frivolous they are or how flippantly they are made.
This worsened when the operatives of the Department of State Services carried out a simultaneous raid on the houses of some judges between October 7 and 8, and claimed that it had recovered large sums of money in foreign and local currencies from the houses of three of the judges.
Without the DSS having to say more, the impression which the public immediately took away from it was that the various sums of money recovered from the judges were beyond the judges’ legitimate earnings and so the money could only have been proceeds of bribery.
In their various letters sent to the outgoing Chief Justice of Nigeria, Justice Mahmud Mohammed, after their arrest and subsequent release, two affected Justices of the Supreme Court, Justices Sylvester Ngwuta and Inyang Okoro, tried to explain how the money recovered from their homes came about, with Ngwuta even claiming that part of the money was planted in his house.
But if the claims of the apex court justices impacted on the opinion of the public, it only served to strengthen the general belief that the monies were proceeds of bribery.
The impact of the DSS raid on the judiciary reflected on Tuesday, when members of a special three-man panel raised by the President of the Court of Appeal, Justice Zainab Bulkachuwa, withdrew from the appeals relating to the orders of the Federal High Court recognising Mr. Jimoh Ibrahim as the governorship candidate of the Peoples Democratic Party in Ondo State ahead of the election scheduled for November 26.
Members of the panel withdrew based on allegations of bribery levelled against them.
In an emotion-invoking response, head of the panel, Justice Jumai Sankey, denied all the allegations contained in the petition sent to Justice Bulkachuwa by a respondent in four out of the five pending appeals, Biyi Poroye.
Poroye, who belongs to the Ali Modu Sheriff faction of the PDP, was among the plaintiffs that filed a suit and obtained the order which made the Independent National Electoral Commission to substitute the name of Eyitayo Jegede with that of Ibrahim as the PDP governorship candidate in Ondo State.
Bearing in mind that this is a time when virtually all corruption allegations levelled against judicial officers are taken as hard evidence, Justice Sankey, while engaging lawyers in the open court on Tuesday, said, “Justice is rooted in confidence,” and made it clear that the duty the panel was called to perform had become impossible.
Justice Sankey said in the ruling that although there was no evidence backing the allegations levelled by the petitioner against her and the other members of the panel as well as the President of the Court of Appeal, she and her colleagues considered it more desirable to withdraw from the case.
She ruled, “Even though this petition has fallen short of showing any likelihood of bias, nonetheless, we consider it more desirable to recuse ourselves at this stage in respect of all appeals and applications connected to the Ondo State governorship election.
“All the files in this regard are now sent back to the Honourable President of the Court of Appeal for re-assignment.”
If there is any ongoing effort by the judiciary to extricate itself from the web of allegations of corruption, the vigour to successfully do so is deflated by the bruises it recently inflicted on itself by issuing conflicting orders which complicated societal problems rather than solve them.
For instance, since politicians belonging to the rival factions of the Ahmed Makarfi and Ali Modu Sheriff of the PDP turned the court to their battlefield, various courts of coordinate jurisdictions have issued a number of orders with majority of them conflicting, further plunging the society into more murky waters of confusion.
The leadership of INEC captured this mood in its response to two conflicting orders made on August 16 by the Abuja and Port Harcourt divisions of the Federal High Court with respect to the planned national convention of the PDP scheduled to hold the following day.
The INEC leadership told Punch on the day the orders were made that it was confused about whether to monitor or stay away from the national convention scheduled to hold the following day.
At one end, Justice Okon Abang of the Federal High Court in Abuja insisted that the PDP must stop the planned national convention.
The judge gave a stern warning to the Chairman of INEC, Prof. Mahood Yakubu, not to monitor the convention.
The judge also ordered the Inspector-General of Police, Ibrahim Idris, to enforce the court’s order by preventing the convention from holding.
Justice Abang’s order was in direct conflict with the order of Justice Ibrahim Watila of the Port Harcourt Division of the Federal High Court, directing the IGP to go ahead to monitor the convention.
Warning that the disobedience of court orders could cause anarchy, Justice Watila, on his part, pointed out that the National Caretaker Committee of the PDP remained the executive authority in all matters concerning the party and should go ahead to hold its planned convention.
But reacting to the development, the Director, Publicity and Voters Education, INEC, Mr. Oluwole Osaze, told The PUNCH that the commission was in a dilemma.
He said, “We are in a dilemma over which order to obey for now. One order asks us to go ahead, another says we should not. We are waiting to be served with the order of Justice Abang before knowing what to do.”
In what appeared to be a show of its preference for Justice Abang’s order, the police, on August 17, the day the convention was to be held by the Makarfi faction, sealed off the Sharks Stadium in Port Harcourt, preventing entry into the venue of the event.
The rival groups of Sheriff and Makarfi have both benefited from the confusion created by the conflicting court orders, but the judiciary ends up turning itself into a laughing stock, by making ineffective orders.
For example, Justice Ibrahim Buba of a Federal High Court in Lagos on May 24, 2016 ordered the disbandment of the Makarfi-led caretaker committee of the PDP constituted on May 21 to take over the affairs of the party from its then acting chairman, Sheriff.
The judge, in a ruling, declared that the caretaker committee was constituted in violation of an order he made on May 12, 2016 in a suit filed before him, praying for an order preventing the conduct of election to fill the positions of the National Chairman, National Secretary and National Auditor of the PDP.
Justice Buba said a judge had the duty to enforce Section 287 (3) of the 1999 Constitution, which, he said, stipulated that an order of any court created by the Constitution “shall be enforced in any part of the federation by all authorities and persons.”
“No court can make an order in vain,” Justice Buba declared, stressing that he would not sit back and allow his order to be violated without consequences.
But a member of the Makarfi group, Chief Joseph Jero, also got a protective court order in a judgment delivered by Justice Valentine Ashi of the High Court of the Federal Capital Territory in Apo, Abuja on June 29, 2016.
In the suit filed by Jero against the PDP, Justice Ashi technically ordered the removal of Sheriff as the National Chairman of the party by ruling that the “purported amendment of Article 47(6) of the PDP Constitution of 2012 at a Special National Convention of the party held on 10th and 11th December, 2014 2014 is unconstitutional, null, void and of no effect, for non-compliance with the mandatory due process as provided in Article 66(2) and (3) of the said Constitution.”
Another order made later on August 17, 2016 by Justice K.N. Ogbonnaya of the Kubwa Division of the High Court of the Federal Capital Territory, Abuja, specifically stopped Sheriff from further acting as the chairman of the party.
The order was made in suit, FCT/HC/CV/39/16/ filed by another member of the Makarfi faction against Sheriff, seeking to enforce the earlier judgment delivered by Justice Ashi on June 29, 2016.
Justice Ogbonnaya declared that “the judgment of the Honourable Justice Valentine Ashi delivered on June 29, 2016, in Suit No. FCT/HC/CV/1867/2016 is binding, valid and subsisting.
“That an order of court is hereby made setting aside and nullifying the acts or conduct of the defendant (Sheriff) as the National Chairman of the Peoples Democratic Party or anything done by him in the name or on behalf of the party for being unlawful, illegal, null, void and of no effect, whatsoever.”
Justice Ogbonnaya, in granting other prayers sought by the plaintiff, also restrained Sheriff “from parading himself as the National Chairman of the PDP, instructing any counsel for or on behalf of the PDP, convening any meeting of the party, conducting any congress/primaries for the purposes of nominating the party candidate for any election or doing any other thing in the name of the PDP until the valid, binding and subsisting judgment of Honourable Justice Valentine Ashi delivered on June 29, 2016 in Suit No. FCT/HC/CV/1867/2016 is set aside.”
The Makarfi group also got another favourable judgment delivered by Justice A.M. Liman of the Port Hacourt Division of the Federal High Court on July 4, 2016 in the suit FHC/PH/CS/524/2016 filed by the PDP against Sheriff, Oladipo, INEC, the Inspector-General of Police and the DSS.
Among the orders granted by Justice Liman, in the said judgment, was one “restraining the 3rd defendant (INEC) from according or continuing to accord any recognition to the 1st and 2nd defendants (Sheriff and Oladipo) or any and/or all of the national officers, members of both the National Executive Committee and members of the National Working Committee of the plaintiff who were removed from office by the national convention of the plaintiff (PDP) held on May 21, 2016 in Port Harcourt, Rivers State as officers or organs of the plaintiff.”
Earlier on May 30, 2016, Justice Baba Yusuf of the FCT High Court in Maitama, also dismissed a suit, FCT/HC/M/7098/16, filed by Sheriff and in which he joined 18 others members of his faction in representative capacity, seeking to disband the Makarfi-led caretaker committee.
In dismissing the suit, Justice Yusuf held, “Now that it has become clear that the 1st plaintiff (Sheriff) did not have the authority of the applicants to file the suit, I agree with Mr. Njamanze (SAN) as supported by the senior counsel for the defendants that this matter, as presently constituted, has become incompetent and liable to be struck out.”
Despite all the orders that the Makarfi group had obtained, Sheriff continues to act as the National Chairman of the party parading a number of court orders affirming him to act in that capacity.
When the crisis started in May, Justice Muhammed Idris of the Federal High Court in Lagos had ordered members of the PDP not to take any action that could foist a fait accompli situation, with respect to the convention of the PDP, on the court.
Justice Idris’ order came just as Justice Ibrahim Buba of the same Lagos Division of the Federal High Court, on the same day refused to vacate the order prohibiting the conduct of election into offices of the National Chairman, National Secretary and National Auditor at the PDP national convention.
The order by Justice Idris was sequel to the confusion that arose as to who was the right lawyer to represent the party in the proceedings.
The judge, in a ruling, held that parties must not do anything or take any step or action capable of voiding the proceedings of the court, pending when the issue of appearance would be resolved.
Justice Abang on July 28, 2016 declared as illegal the Markarfi-led faction of the national leadership of the party.
The judge made the declaration in his ruling which he delivered after entertaining arguments from two lawyers separately briefed to represent the PDP by the Makarfi and the Sheriff-led factions.
Relying on the order made by Justice Buba of the Lagos Division on May 12, Justice Abang recognised Mr. Olagoke Fakunle (SAN), who was briefed by the Sheriff faction, and declared that Chief Ferdinand Orbih (SAN) could not have been validly briefed by the Makarfi faction whose emergence as the chairman of the party’s caretaker committee, according to the judge, violated an earlier order made by Justice Buba.
Justice Abang faulted the decision of the Port Harcourt Division of the Federal High Court to assume jurisdiction on the case relating to the PDP convention because the case on the same subject matter was assigned to him earlier before the case before Justice Watila was filed by Senator Ben Obi.
With the battle between the Makarfi and Sheriff camps taken to the state levels, the judiciary again embraced the dispute over the PDP’s ticket for the governorship race in Ondo State with a hug of conflicting orders.
On October 14, 2016, in the suit, FHC/ABJ/CS/395, 2016, filed against INEC and the PDP by Poroye, Justice Abang ordered that, “INEC, the 1st respondent/alleged contemnor, shall accept and process for the purpose of its functions an activities in organisation and conduct of the Ondo State governorship election only nomination of Barrister Jimoh Ibrahim, who emerged from the primary election conducted by the 1st and 2nd judgment creditors/applicants (Poroye and Ademola Genty for themselves and on behalf of the Ondo State Executive Committee of the PDP) on August 29, 2016 as the candidate of the PDP in the said Ondo State governorship election slated for November 2016.”
In contrast, on October 26, 2016, Justice W.R. of the Akure Division of the Ondo State High Court, ruling in an ex parte motion in suit, AK/176/2016, made an order of interim injunction restraining INEC from “changing, replacing, removing, substituting or in any manner tampering with the name of Eyitayo Olayinka Jegede (SAN), as the governorship candidate of the Peoples Democratic Party in the Ondo State governorship election slated for November 26, pending the determination of the motion on notice.”
Commenting on the logjam in the PDP, a Lagos-based lawyer, Mr. Wahab Shittu, opined that the PDP would never find a solution to its internal crisis from the judiciary. He advised the party to intensify its reconciliation efforts, suggesting use of Alternative Dispute Resolution mechanism.
Shittu said, “The intervention of the court in the electoral process is the exception rather than the rule. Political parties ought to be able to address their internal problems without involving the court in the quest for internal democracy. What is going on now is largely due to the collapse of internal democracy within the PDP. The blame cannot be placed at the doorstep of the judiciary because the judiciary has no way of determining who is popular among the candidates except to act on the basis of the facts presented before the court.
“The way out is for the PDP to go and resolve their internal problems so that they can present a united front in order to be able to confront other parties.
“There is no way the judiciary can resolve this matter without further polarising the party because the judiciary will decide in favour of one of the candidates and the other faction, which loses out, will not be happy. So, the PDP should go and intensify its reconciliation efforts and ensure that it presents a united front. I am suggesting Alternative Dispute Resolution form of reconciliation because any crisis within the PDP constitutes a danger to democracy.”
Another Lagos-based lawyer, Mr. Ebun-Olu Adegboruwa, blamed the problem in the PDP on the alleged presence of agents of the ruling All Progressives Congress planted in the PDP fold to destabilise the party.
Adegboruwa said, “In order not to be seen to be directly involved in the PDP crisis, the ruling APC has continued to use Senator Ali Modu Sheriff as a front to deploy the judiciary to destabilise the PDP, in order to always create an easy ride for the APC candidates during elections.
“The current crisis between Senator Ahmed Markarfi and Senator Ali Modu Sheriff is the result of the grand conspiracy of the APC. And this is part of what led to the sting operation on the judiciary, as a way of creating mortal fear in the mind of judges, to harass them into always doing the bidding of the APC.
“So, it is gradually gaining ground for judges involved in cases where the government or indeed the APC is a party, to assume self intimidation in favour of the APC.
“Notwithstanding the grand designs of the APC, I believe that the judiciary should adopt some internal mechanism for self cleansing, by which ‘overnight’ injunctions and conflicting orders and judgments, in political cases, will be a taboo.
“The judiciary has been the arm sustaining democracy and the rule of law, even under the military rule, and it cannot afford now to be the source of destabilisation of our dear nation.
“The CJN and the chief judges of the high courts should roll out plans that will make it impossible for judges to impose candidates on political parties and the people.
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