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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