Oni’s appeal at Supreme Court

By Kayode Ojo

Two self-motivated schools of thought have argued for and against the decision by former Governor of Ekiti State, Engineer Segun Oni, to head to the Supreme Court to challenge the verdict of the Court of Appeal in Ado Ekiti, which dismissed his petition against the October 15, 2010 judgment of the Court of Appeal in Ilorin, which sacked him from office.

A school of thought, to which the greatest beneficiary of the appellate court decision, incumbent Governor Kayode Fayemi belongs, together with his supporters, does not fancy the idea of Oni pushing for a review of the verdict.

On the other hand, another school of thought led by Oni believes there are good reasons to subject the verdict to judicial review. Oni had first gone to the Court of Appeal, Ado-Ekiti, a court of coordinate jurisdiction, with an application seeking a review of the verdict of the Court of Appeal, Ilorin.

The five-member panel of judges, which sat in Ado-Ekiti and presided over by Justice Tijani Abdullahi, on February 27, 2012, dismissed Oni’s application. The crux of Oni’s application is the allegation of bias in the matter against the Chairman of the Court of Appeal panel and suspended President of the Court, Justice Isa Ayo Salami, which sat in Ilorin.

Oni’s position is that with the established strong relationship that existed between the leadership of the Action Congress of Nigeria (ACN), especially Bola Tinubu, and particularly as typified by the telephone conversations between them when the case was on, it was indubitable that Salami compromised the course of justice in favour of his associates in the ACN.

But the Appeal Court would seem to appear clear in couching its judgment: “It follows therefore that where there is an allegation of bias in a matter that has been determined to finality, this court cannot exercise its jurisdiction in favour of the applicant. This case of likelihood of bias would have been relevant if it had been raised at the hearing of the appeal before judgment was delivered. Having not been raised at the appropriate stage, this application lacks merit and is hereby dismissed.”

The clearness or otherwise of this judgment is what Oni wants the Supreme Court to look into with a view to determining whether the court below was correct in dismissing the application on the grounds that it was not raised at the appropriate stage.

As a layman, I ask: what is wrong in raising allegation of bias if it can be proved after judgment had been given?

What is the essence of justice if it is not seen to be done, no matter the stage(s) of a case and especially where there is a higher court to ventilate dissatisfaction? Is it not possible that there are cases of bias outside Nigeria that had been decided in higher courts after judgment had been given in the courts below?

I expect the legal team of Oni led by Professor Ben Nwabueze (SAN) to find out if there are such foreign precedents and seek to relate them with this instant case before the Supreme Court. It is just possible that the exercise may end up enriching our jurisprudence in Nigeria.

It may just be the locus classicus in cases of bias discovered after judgments have been delivered. I believe it will, in the long run, impose a heavy duty on judges to be careful and raise armour against likelihood of bias, knowing full well that the cry and search for justice can continue even after judgments.

Ekiti case has become a thorn in the flesh of the nation’s judiciary, especially given the mess, involving high-level judicial officiers, that it has exposed. Oni has been tenacious in his fight for propriety and justice. The matter would not just fizzle out. Governor Fayemi and his ACN sponsors have been unable to wish it away.

It is clear that the matter has not conclusively qualified as stare decisis non quieta movere (a matter that has been settled should not be disturbed); and knowing that the law is an ass, they do not have any solid constitutional guarantee that they are in a comfortable and safe position. The Supreme Court in recent times has been churning out radical judgments and I believe this case has all it takes to throw up surprises. The ball is in the courts of the appellant, respondent and the honourable justices of the apex court.

But as the nation awaits the judgment that is scheduled for November 29, this year, I feel compelled to take a second look at some grounds on which the Court of Appeal had on two occasions nullified Oni’s governorship election victories. For instance, the Court of Appeal panel had curiously cancelled the governorship election result in the whole of Ido-Osi Local Government Area which is Oni’s home local government on the grounds of arson and violence, thus denying him of the massive votes that had decided the election in his favour. Was there fairness in the panel reaching that decision?

The report was that the headquarters of the Independent National Electoral Commission (INEC) at Ido-Osi, was burnt. The identity of the perpetrator of the arson and violence did not matter to the panel because if it did, the man who confessed to having committed the arson should have been charged to court so that appropriate sanction could be meted out to him. But was he charged to court at all? I do not think so.

What mattered to the court was that enough evidence had been put forward to justify the claim by the ACN that there was violence in Oni’s area to justify a possible preconceived plot to cancel results from the area. And I ask: why would Oni, who was then a sitting governor, encourage violence in Ido-Osi, knowing full well that it was his stronghold and that violence would lead to cancellation either by the electoral body or the court?

Would he have been careless to expose his victory to potential collateral damage from the opponents? Was it not possible that a fifth columnist, in the opponent’s camp, could have masterminded the violence and arson? After the re-run election in 2009, votes that had been counted and collated from the various wards, with the recorded scores, were to be moved to INEC office at Ido-Ekiti, the headquarters of Ido-Osi Local Government Area; but before the election results got there, the office had been set on fire which was one of the reasons the election of Ido-Osi was cancelled.

It was not indicated that the ballot papers were burnt as it is on record that the ballot papers and the votes cast were later collated at a police station. Why police station? Somebody had asked, and, incidentally, that was the contention of the ACN and my counter was: would someone have expected that the votes be collated in a burning or burnt INEC office?

Again, there is something significant about Ido-Osi Local Government in the politics of Ekiti State: it is on record that since the advent of the Fourth Republic in 1999, PDP has never lost in Ido-Osi Local Government Area, even when the Alliance for Democracy (AD) was in control and till now. I am still wondering the wisdom that created the red biro theory in the first Court of Appeal, Ilorin, verdict that ordered a rerun of the Ekiti governorship election. The panel had vitiated the result in some places where red ink was used.

And, I still consider it somewhat curious and ludicrous that the red biro used by officials of the Independent National Electoral Commission (INEC), and not the PDP agents, became the reason for nullifying the election of Oni in some seven local government areas of the state, including Ido-Osi Local Government; whereas, another tribunal that sat in Lagos said it (the use of red biro) was immaterial in the case of Babatunde Raji Fasola and Jimi Agbaje of the Democratic People’s Alliance (DPA).

It should not have been difficult to identify who used the red biro and why it was used. If it was an offence, indeed, to use a red ink, was any staff member or official of the electoral body sanctioned for it? Now, let me even reason further: was the red biro that the court dwelled on for voting or for recording the results of the election; and significantly, who produced the red biros that were used-PDP or INEC? These are the points at issue.

These are scenarios that very easily reinforce the likelihood of bias, a charge or allegation that Oni has leveled against the Justice Salami-led Court of Appeal panel that sat on the Ekiti governorship election petition appeal and ruled in favour of ACN’s Fayemi. But it is left for the Supreme Court, the final destination in the quest for justice, to make a pronouncement on the matter. The outcome is certainly in the womb of time. . Ojo writes from Lagos.