Tribute to His Excellency, Ambassador (Justice) George Adesola Oguntade, CFR: CON AT 80 - Paul Ukpabio's Blog

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Monday, 2 March 2020

Tribute to His Excellency, Ambassador (Justice) George Adesola Oguntade, CFR: CON AT 80


By Bashorun J.K. Randle

There really is not much to add to the cascading accolades already showered on
the celebrant as well as the avalanche of encomiums. Indeed, it is tempting to
draw the curtain with the sound of the gavel from the Court Clerk: “Case
Adjourned”.

Justice has been served by what has been entered in the records of the Court
(both the Supreme Court of Nigeria and the Court of St. James’s, United
Kingdom).

“Justice Oguntade is undoubtedly one of the sharpest legal minds that ever
sat on the Higher Bench in Nigeria. In his service on the Bench, he made his
mark in the advancement of the nation’s legal system, even at great risk to
his person.”

However, in order to forestall those who may raise the issue of “insufficient
evidence,” permit me to add:

“He was born in Ijebu-Ode in the old Western Nigeria on March 10, 1940.
He attended Ijebu-Ode Grammar School between 1953 and 1958. Thereafter
he proceeded to Holborn College of Law [University of London], UK (1961-
1964); and the Nigerian Law School, Lagos in 1965. He was called to the
Nigerian Bar on January 15, 1966.
Bashorun J K Randle

He was in private legal practice for 14 years and was appointed a Judge of
the Lagos State High Court in 1980, and then the Court of Appeal in 1988,
and in May 19, 2004, he was elevated to the highest court of the land,
Supreme Court of Nigeria where he served meritoriously till March 10, 2010
having attained the mandatory retirement age of 70 years.

His many strategic postings included Chairman, Lagos State Armed
Robbery & Firearms Tribunal, Justice of the Court of Appeal, Enugu, Ibadan,
and Presiding Justice, Court of Appeal in Jos, Lagos, and Federal Capital
Territory, Abuja. He was finally elevated to be Justice of the Supreme Court
of Nigeria in 2004.”

I am tempted to invite the Court to take judicial notice of the fact that on the
very same day (January 15, 1966) when George Adesola Oguntade Esq. (as he was
then known) was called to the Nigerian Bar, the military protested vigorously by
staging Nigeria’s first coup d’état!!

It was the first time we heard the chilling opening address: “Fellow countrymen
……………………………..” accompanied by martial music.
It is the dexterity and maturity with which Ambassador Oguntade has
comported himself that qualifies him as a fast learner.

Since he assumed duty as the High Commissioner of the Federal Republic of
Nigeria to The United Kingdom (and the Court of St. James’s), he has taken to
heart the best attributes of a diplomat as espoused by late President of the
United States of America, Benjamin Franklin (1706 to 1790).

“……….sleepless tact, unmovable calmness and a patience that no folly, no
provocation, no blunders may shake.”

He has been rewarded with tremendous respect, trust and mutual confidence by
President Muhammadu Buhari and the Diplomatic Community in Britain. His
opinion, advice and guidance are very much in demand – especially by the heads
of the fifty-three other African High Commissions/Embassies.

I stand to be corrected, but by my reckoning Ambassador Oguntade has had the
good fortune of hosting President Muhammadu Buhari GCFR, Commander-In-
Chief Armed Forces of Nigeria in his “jurisdiction” on numerous occasions (240
non-consecutive days and nights in the last five years mostly on health grounds,
private matters and investment summits) far beyond any of his predecessors or
any other Nigerian High Commission/Embassy in the world. For those who are
intrigued by the miraculous survival/recovery of President Buhari from his lifethreatening health challenges, Ambassador Oguntade is an obvious suspect!!
On CNN, President Buhari publicly declared: “I have never been so sick in my
life.”

One of the Ambassador’s most closely guarded secrets (also covered by
Diplomatic Immunity !!) is that there is a deep spiritual dimension to his
character, soul and spirit.
Here is the evidence according to Court records:

“Between 1992 and 1999, he was the Chancellor of the Church of Nigeria
(Anglican Communion). He remained Chancellor, Anglican Diocese of
Lagos till May 2017.”

It is no secret that Justice Oguntade has established very deep friendship with
the head of the Anglican Church, The Most Revd. Justin Welby, the Archbishop
of Canterbury President Buhari, The Most Revd. Welby and High Commissioner Oguntade have metamorphosed into a powerful triumvirate. Permit me to digress.
Archbishop Welby was previously an active player in the oil and gas sector when
he worked as a very senior executive at Elf Aquitaine which had substantial
interests in Nigeria.

I believe that the Managing Director of ELF at the time was late Jacques Halfon
who remains one of the most amazing human beings I have ever come across.
KPMG (of which I was Chief Executive and Chairman) were the auditors.
However, my admiration for Jacques Halfon went beyond professional matters
or the acknowledgement of his intimidating intellect. He was very humble and
truly loved Nigeria and Nigerians. Even when his wife was dying of cancer he
refused to quit his job. Instead, he would commute on a weekly basis to Paris
where his wife was being treated every Friday evening and be back at his desk in
Lagos on Monday morning. Sadly, he drowned at the beach in Egypt while
trying to save his adopted son (a Nigerian toddler) from drowning.

Justin Welby’s path as an oil executive may have crossed that of Major-General
Muhammadu Buhari who served as Nigeria’s Federal Commissioner for
Petroleum and Natural Resources from 1976 to 1978.
Justin Welby quit the darkness of the oil and gas sector to pursue a more
spiritually fulfilling life in the clergy. His Epiphany (the manifestation and
revelation of Christ to him) obliged him to forsake the pursuit of all material
gains, be they fossil or non-fossil.

Ambassador Oguntade’s golfing friends refer to him as a Holy (“holey”) man!!
Golfers have an irresistible urge to spend hours chasing a white ball into a tiny
little hole. It is a temptation they are unable to resist.
They are unlike the late Prime Minister of Britain Winston Churchill (1874 to
1965) who when asked if he ever felt the urge to exercise, replied:
 “What I do is lie in the bath with a large cigar in my mouth and much larger
glass of brandy in my hand. Then, I wait for the urge to go away.”
I do not wish to dwell too much on Justice Oguntade’s spiritual antecedents. He
has never claimed to be a faith healer, prosperity evangelist or miracle worker.
But how else can you explain that in a twinkle of an eye (actually eighty years if
you rely on a Chartered Accountant to do the counting), he has been an
outstanding lawyer and jurist as well as being a formidable pillar of the Anglican
Church.

Added to the galaxy of monumental achievements is that he is currently the Lisa
of Lagos (a Title previously held by my father, late Chief J.K. Randle); and
Chancellor of Lagos State University, (a position which I previously held). What
an amazing coincidence!! I have been warned not to make any reference to his
life-long membership of the “The Penthouse” and what goes on behind closed
doors, otherwise I may be charged for contempt of Court.
Therefore, I shall confine myself to his gregarious disposition which has earned
him friendship and trust from all over Nigeria (and beyond) – cutting across
ethnicity, religion, gender and age – in a joint enterprise with his darling wife,
Her Excellency Modupeola Oguntade.

The fear of being charged with “failing to tell the truth and nothing but the
truth) compels me to divulge that in 2007 when candidate, Major-General
Muhammadu Buhari challenged the declaration of Alhaji Umaru Musa Yar’Adua
as the winner of the presidential election at the Supreme Court, the Court which
was presided over by Justice I. L. Kutigi ruled in favour of Alhaji Yar’Adua.
However, three judges dissented. They were Justice Aloma Mukhtar; Justice
Walter Samuel Onnoghen; and Justice George Adesola Oguntade who took the
following position:

“Oguntade, JSC:– On 21 April 2007, the Presidential Election was conducted
in Nigeria to elect a successor to Chief Olusegun Obasanjo, whose term of
office as President of the Federal Republic of Nigeria was to expire on 29
May 2007. The appellant, General Muhammadu Buhari was the candidate of
the All Nigeria People’s Party (hereinafter referred to as “the ANPP”) in the
said election. The fifth and sixth respondents in this appeal Alhaji Umar
Musa Yar’Adua and Dr Jonathan Goodluck were the Presidential and Vice-
Presidential candidates respectively of the People’s Democratic Party
(hereinafter referred to as “the PDP”) in the said election. There was a host
of other candidates numbering 22. It is not necessary for the purpose of this
judgment to set out the names of the other candidates. The elections were
conducted as required under the Constitution of Nigeria, 1999 by the first
respondent Independent National Electoral Commission (hereinafter
referred to as “INEC”) under the Chairmanship of the second respondent,
Professor Maurice Iwu. At the conclusion of the election, the fifth
respondent Alhaji Umaru Musa Yar’Adua was declared the winner with
24,784,227 votes. The appellant was the runner-up with 6,607,407 votes.
The appellant was dissatisfied with the declaration of the fifth respondent as
the winner of the election. On 22 May 2007, he filed a Petition against the
declaration made by INEC. He challenged the declaration on a number of
grounds.

The position of this Court, as decided in Unilag v Aigoro (supra) is that the
power to make Practice Directions is one to be inferred from the grant of the
power to make Rules. If paragraph 50 of the First Schedule of the Electoral
Act makes the Rules of the Federal High Court applicable in election
matters, it is to be inferred that the President of the Court of Appeal who
sets up elections tribunals and heads the Court of Appeal has the power to
ensure that the Rules of Court made applicable to election tribunals are well
regulated and adapted to meet the peculiar problems arising from election
petitions. There is in particular the special necessity to ensure that the
election petitions are expeditiously disposed of with minimal problems.
The petitioner/appellant has not raised any issue as to how the exercise by
the President of the Court of Appeal to make Practice Directions has
adversely affected him or hindered his constitutional right to a fair hearing
of his petition. I therefore do not see the need to explore the matter further.
It is sufficient to say that the President of the Court of Appeal, in the
exercise of his power to make Practice Directions may not give any
directions which derogates from the validity and effect of any other Law or
the Constitution of Nigeria.

In the final conclusion, this appeal succeeds. I hold the view that the failure
of the first and second respondents to comply with section 45(2) of the
Electoral Act which is that ballot papers be serialised and bound in booklets
for the purpose of the Presidential elections held on 21 April 2007, is so grave
that the said elections ought to be nullified. In coming to this conclusion, I
have advised myself fully that all courts in Nigeria have the duty to enforce
our laws dealing with elections in order to ensure transparency, credibility
and fairness in all elections in Nigeria.

I annul the Presidential elections in Nigeria held on 21 April 2007 and order
that fresh elections be conducted within 90 days from today.
I make no order as to costs.”

HELD
Leading judgment by Niki Tobi, JSC; with I.L. Kutigi Chief Justice, A.I. Katsina-
Alu, D. Musdapher, JJSC concurring; W.S.N. Onnoghen, A.M. Mukhtar, G.A.
Oguntade, JJSC dissenting
1. Burden of proof
The burden of proof is not static. It fluctuates between the parties. The
burden of first proving the existence of a fact lies on the party against
whom the judgment of the court could be given if no evidence were
produced on either side. In other words, the onus probandi is on the party
who would fail if no evidence is given in the case. Thereafter, the second
burden goes to the adverse party. In the instant case, the burden of proving
non-compliance with the Electoral Act lay with the appellant. Per Tobi, JSC
at 171.
2. Effect of conducting an election with invalid ballot papers
Section 45(2) of the Electoral Act 2006 had not been complied with. A valid
election cannot be conducted without valid ballot papers. Section 67 of the
Electoral Act provided that ballot papers that did not comply with the
requirements of the Act cannot be used in any election. Per Kutigi, CJN at
261.
3. Further burden to prove substantiality of non-compliance with
Electoral Act
The appellants then had to prove that such non-compliance with the
Electoral Act substantially affected the result of the election. The
respondents could then satisfy the court that non-compliance did not affect
the outcome. Per Kutigi, CJN at 261.
If a petitioner proves non-compliance with the provisions of the Electoral
Act, he is only entitled to succeed if the court is satisfied that such noncompliance
substantially affected the result of the election. Per Kutigi, CJN
at 261; Tobi, JSC at 171; Katsina-Alu, JSC at 265; Musdapher, JSC at 268.
4. Non-compliance with the Act, insufficient to invalidate election
The appellant had failed to prove that non-compliance with the provisions
of the Electoral Act had substantially affected the result of the
election. Buhari v Obasanjo (2005) 13 NWLR (Part 900) 487 approved and
followed. Non-compliance with the Electoral Act, without more, was not
sufficient to invalidate the election. Per Kutigi, CJN at 261; Per Tobi JSC at
171.
5. Jurisdiction of the court on the propriety of serialisation of ballot
papers
There was no basis for the lower court to have found that the propriety and
correctness of the serialisation of the ballot papers had affected the
outcome of the election. The Court lacked the competence or jurisdiction
to make such a finding. Per Kutigi CJN at 261.
6. Right of the president of Court of Appeal to make Practice
Directions
The President of the Court of Appeal has the power to make Practice
Directions under the Federal High Court (Civil Procedure) Rules for the
purpose of regulating the practice and procedure of the Election Tribunals.
Per Tobi, JSC at 171.
7. Limits of Practice Directions
Although the president of the Court of Appeal had the power to make
Practice Directions, such Practice Directions had to be within the confines
of the law. The witness depositions in compliance with the Practice
Directions were incompetent as they offended the provisions of section
90(b) and (c) of the Evidence Act. Per Tobi, JSC at 171.
8. Constitutional provisions prevail over Practice Directions
If there is a conflict between the Constitution and Practice Directions, the
former shall prevail. So too, if there is a conflict between an enabling
statute and Practice Directions. Per Tobi, JSC at 171.
9. Inadmissible evidence cannot be cured by consent
It did not matter that inadmissible evidence was admitted by consent of the
parties. The affidavits did not meet the requirements of the law and were,
therefore, inadmissible. Per Tobi, JSC 171; Musdapher, JSC at 268.
10. Probative value of documents tendered under Practice Direction
The basic aim of tendering documents in bulk was to ensure the speedy
hearing of election petitions . . . But that did not ipso facto permit the court
to attach probative value to documents that lacked such value . . . As the
documents failed the test, the Court of Appeal was right in expunging
them. It cannot be said that the Court of Appeal did not evaluate the
evidence. Per Tobi, JSC at 171.
11. Effect of court disregarding evidence
If the court does not make use of evidence of a witness, the evidence will be
regarded as dead and moribund in the determination of the live issues. As
the Court of Appeal did not place any probative value on the evidence, the
evidence is irrelevant. Per Tobi, JSC at 171.
12. Power of court to test findings of Commission of Inquiry
The Court had the jurisdiction under section 239(1) of the Constitution to
inquire into the validity of the report of the Commission of Inquiry (Exhibit
EP2/34) purporting to disqualify the fourth and fifth respondents on
grounds of fraud and embezzlement. Such exhibit was invalid and
irrelevant. The purported finding, therefore, did not disqualify the fourth
respondent from contesting the election. Per Kutigi, CJN at 261; Per Tobi
JSC at 171.
13. Meaning of criminal conviction
An indictment involves an allegation or commission of a crime which
necessitates the drafting of a charge. That is the essence of section 137(1)(i)
of the Constitution. There is nothing in the findings of the Commission of
Inquiry set up by the Governor of Abia State, to suggest that the fourth and
fifth respondents were specifically found guilty of embezzlement or fraud,
and so Exhibit EP2/34 did not articulate or vindicate section 137(1)(i) of the
Constitution as it is clearly on its own. Per Tobi, JSC at 171.”
It is not mere hearsay that out of the three “dissident” judges – both Justice
Aloma Mukhtar (2012–2014) and Justice W.S.N. Onogen (2017 - 2019) became
Chief Justice of Nigeria. We are entitled to ask: why was Justice G.A. Oguntade
made the scapegoat? He is entitled to punitive damages and reparation.
When Justice Oguntade hosted his Retirement/Birthday party in 2010 at City
Hall, Lagos, Major-General Muhammadu Buhari travelled all the way from
Abuja to felicitate with the celebrant.
It is to the credit of our High Commissioner that not only did he reach the
pinnacle of his chosen profession, Law, one of his children Fola Oguntade is a
S.A.N. (Senior Advocate of Nigeria).
It appears that while the Court is still in session, we have time to record that
what attracted then George Adesola to study Law was that after leaving
secondary school in 1958, he got a job as a Court Clerk in Ibadan. It exposed
him to the elegance and majesty of the legal profession which was then
dominated by superstars, role models and mentors such as Justice Adetokunbo
Ademola; Justice Olumuyiwa Jibowu; Justice J.I.C. Taylor; Justice Atanda Fatayi-
Williams; Justice Kayode Eso; Justice Adewale Thompson; Justice Nekan
Ademola as well as eminent lawyers – Chief F.R.A. Williams; Chief Remi Fani-
Kayode; Chief Mojeed Agbaje; Olu Ayoola, Chief Abiodun Akerele and other
legal luminaries. Adesola needed little persuasion to choose law as his
profession.
Shortly, after being appointed as High Commissioner in London, Justice
Oguntade delivered a very robust and very intellectually stimulating
“Judgement” on the State of Law and the Judiciary in Nigeria and the urgent
need for sweeping reforms. I hope the matter is not “statute barred” or “sub
judice”. Rather than add fresh coal to the fire/furnace, the High Commissioner
is entitled to our good wishes on his landmark birthday plus the abundant
blessings of the Almighty.
As if determined to ruin the party, British newspapers (as well as “The Punch”)
have today published in bold headlines on their front page the demand by the
United Kingdom for £7.1 million (N3.3 billion) for unpaid congestion charges
and parking tickets by the Nigeria High Commission, in London.
According to Julian Assange of WikiLeaks.
“The U.K. Foreign Office claims Nigeria is owing £7,063,965 in congestion fees
and £47,165 in parking tickets. The figure amounts to more than three times
the entire 2020 budget of the High Commission, which stands at ₦1.6 billion.”
We can rely on Justice George Adesola Oguntade to don his wig and gown to
make a “No Case” submission.
However, if the matter ends up in the Supreme Court of Nigeria, the second
most high-ranking Judge (Justice Bode Rhodes-Vivour ex-St. Gregory’s College,
Obalende) has put all old boys of King’s College on notice:
“We are not final because we are infallible, but we are infallible only because
we are final.”

I am particularly delighted to see Bode in our midst. He is obviously here to
remind us that being a judge of the Supreme Court does not in any way
foreclose being a man with a great sense of humour. He must have learnt a thing
or two from the celebrant when they both served in Lagos as judges followed by
being on the highest court in the land – the Supreme Court.

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