Naron And The Judiciary—Asoamata Othuke

Since the publication of 6 July 2008 by TheNEWS, exposing the unholy romance between the judges on the panel of Osun State Election Tribunal 1 and Otunba Kunle Kalejaye, SAN, counsel to Governor Olagunsoye Oyinlola and PDP, reactions have come, particularly from the dramatis personae. Despite immediately denying the revelation contained in the publication, Kalejaye has refused to make public his logs which are the only tools that confirm his denial.

As regards the members of the Tribunal, theirs have been most perturbing anda quite lacking in penitence. They have carried on with absolute disregard to the effect of their conduct on the public perception of the judiciary. For starters, in a swift reaction to the publication, on 7 July, the Tribunal hurriedly fixed the date of the delivery of the judgment for 15 July. It is generally believed that this was meant to overreach the investigations that are likely to be conducted by the regulatory bodies and the law enforcement agencies.

In furtherance of its bid to deliver the judgment at all costs on 15 July, the Tribunal ruled against all the applications brought by the Petitioners for the members of the Tribunal to disqualify themselves from further adjudication on the petition and an application for the issuance of subpoena on the Managing Director of MTN Nigeria Communications Ltd. to bring the call logs before the Tribunal and give evidence on them. A legal practitioner, who spoke under the condition of anonymity, noted that, in law, if a party raises objection as to the likelihood of bias on the part of the judge, it is safer and more in the interest of justice for the judge to refuse taking the matter. He referred to the Supreme Court decision in Okoebor v Police Council [2003] 12 NWLR (Pt. 834) 444 @ 478. He further noted that in the instant case, considering the weight and detailed nature of the revelations and the insalubrities it cast on the integrity of the Tribunal, the Tribunal did not have to wait for any of the parties to the petition to bring an application for disqualification before voluntarily steering clear of the petition pending the investigation of the allegations made against them.

In a surprising reaction, the Tribunal in its ruling on the petitioners’ application for the Tribunal to disqualify itself which was heard and delivered on 15 July – same day judgment was delivered – the Tribunal dismissed the revelations in the publication with a wave of hand and held that the revelations were speculative and unfounded. Apart from the fact that the revelations are weighty and detailed that one cannot reasonably dismiss them as being speculative or unfounded without a proper and discreet investigation having been conducted, the members of the Tribunal became judges in their own cause, violating a sacred rule of natural justice.

What is more, the Tribunal, in a very questionable manner had shut out all opportunities of having the truth value of the revelations in TheNEWS magazine established. In a rather incredulous manner that leaves one wondering what or how much could be the motivation for its utter insensitivity to the public perception of its activities, the Tribunal lied that the application for the issuance of subpoena on the Managing Director of MTN Nigeria Communications Ltd. was not before it and its attention was not drawn to the application. In this regard, it is necessary to state the facts and the reckless self-contradictions of the Tribunal. Owing to the conflicts between the affidavit in support of the Action Congress’ application for the members of the Tribunal to disqualify themselves from further proceedings in the matter and the counter-affidavits filed by the PDP and Oyinlola, on 14 July 2008, Action Congress filed for the issuance of subpoena duces tecum et ad tesificandum on the Managing Director of MTN Nigeria Communications to compel MTN to bring the documents relating to the call logs with respect to the telephone numbers of Justice Naron, Kunle Kalejaye and other dramatis personae as well as to give evidence on the call logs.

i. At the sitting of the Tribunal on 15 July, 2008, Kola Awodein, SAN, counsel to Engineer Aregbesola and Action Congress, drew the attention of the Tribunal to the pendency of the subpoena and that the same was before the Tribunal.

ii. A certified true of copy of the application for the issuance of the subpoena was attached to the Reply Affidavit filed by Action Congress at the Tribunal.

iii. Foremost legal practitioners consulted informed us that when one files a document in a matter before the court or tribunal, it becomes part of the record of proceedings before the Court.

Based on the foregoing illogical decision of the Tribunal to turn a blind eye to a document which would have set the Tribunal free if its conduct was salubrious, one cannot but conclude that the members of Tribunal singularly established their unabashed bias and wanton decision of setting the judiciary on the path of destruction.

It is equally important to point out that the Supreme Court in the case of Falobi v. Falobi among others has severally held that where there is conflict between affidavits, the way to resolve it is by calling oral evidence or resorting to documents. Considering the importance and enormity of the conflict in the affidavits filed with respect to the application for disqualification, the only way to resolve it would be by calling on MTN to give evidence. As a friend noted, why should we blame the members of Tribunal? Who would take a spade and dig his own six feet? By asking the Tribunal to issue a subpoena that would confirm that its members had illicit telephone conversations with Kalejaye, Action Congress told Justice Naron and co. to put the hangman’s noose around their own necks.

However, if there is one accusation one cannot level against the Tribunal, it is lack of transparency. Since the staggering revelation of TheNEWS magazine, the members have maintained a clear and undoubted transparency in their exhibition of partisanship. As a matter of fact, on the account of their “transparency”, it is appropriate to refer to the five members of the Tribunal as the 1st to 5th Respondents. Their carriage shows that delivering a judgment in favour of Oyinlola and PDP is more important to them than Oyinlola himself. Oyinlola, therefore, became the 6th Respondent.

In its rulings on the application for subpoena and the application for its members to disqualify themselves, the Tribunal also held the application as a ploy by Action Congress to delay the proceedings. Coming to Naron and co. and considering the peculiar circumstances they found themselves in, one would understand that any impediment to their delivery of judgment on that day would drive tornado nails into their coffins. Let us postpone the doomsday and see if the Nigerian factor would play in our favour. A friend also noted that it was important for the judgment to be delivered on that day so as to ensure a completion of their services within the stipulated time.

Also pertinent to note is the ruling on the application of Action Congress to reopen its case for the sole purpose of tendering electoral forms EC8D and EC8E, also delivered on 15 July. In its ruling, the Tribunal continued in its streak of turning a blind eye and fostering absurdities when it held that the said forms were not pleaded in the petition. It mentioned some paragraphs of the petition including paragraph 153. It claimed to have examined the petition with scrutiny. What the Tribunal failed to say is that in paragraph 152 of the petition, the petitioners specifically mentioned Form EC8D.

Furthermore, it is an elementary aspect of law that parties to a suit need not specifically plead or refer to a document in the pleadings but only need to plead facts relevant to the documents: Okafor v. UBN Plc. [2000] 3 NWLR (pt. 647) 42 at 48. A look at the petition shows that the petitioners severally pleaded facts relating to these electoral forms. In some instances, facts stated in the petition were lifted from Forms EC8D and EC8D: paragraphs 17 and 14 respectively. Yet, in their peculiar wisdom and in pursuance of their specific brief, Justice Naron and co. said the forms were not pleaded.

In addition to the foregoing, the Tribunal, on 6 May 2008, had shut out the opportunity of tendering the Form EC8D listed as item 7 in the subpoena duces tecum et ad testificandum issued by the Tribunal on Mr. Agboola, the Head of Operations, Independent National Electoral Commission, Osun State. The Tribunal specifically held that the Form EC8D was already admitted as an exhibit before it. In the history of the judiciary in Nigeria, Justice Naron and his cohorts set a new record in shutting out otherwise admissible evidence.

In its infamous extra cool judgment, the Tribunal rewrote the Nigerian Legal System in many aspects. With respect to all the witnesses called by Action Congress, the Tribunal held that what they saw, heard and perceived attracted no value on the purported ground that they were not supposed to be at the places where they saw things they stated in evidence. Legal practitioners consulted noted that this is strange to the Nigerian legal system. They further noted that Sections 155 and 77 of the Evidence Act are the provisions relating to competence to give evidence. By Section 77, once the witnesses saw what could be seen, heard what could be heard and perceived what could be perceived, their testimony is direct and can be acted upon. It does not matter that one was trying to steal a goat when he witnessed a murder. By Justice Naron’s new law, such person cannot give evidence on the murder.

Also worthy of note is the Tribunal’s judgment on documents admitted in evidence. The Tribunal held that the documents were just dumped before it without saying of what use they were to be put. It is on record that it was this same tribunal that severally prevented Action Congress from leading evidence on the Exhibits. In its ruling on 15 May, the tribunal specifically held that the petitioners should not lead evidence on the documents as they were free to highlight them in the final written addresses. Furthermore, on 19, 20 21 and 22 May 2008, the Tribunal severally held that once a documents is admitted in evidence, no evidence can be led on it. A commentator rightly noted that the only consistent thing about the Tribunal is its inconsistencies. As a matter of fact, patience demands that one reserves the events for another time, maybe in a book form. It is arguable that a book on the Justice Naron-led Tribunal will compete with Things Fall Apart in sales.

In the meantime, we can only pray for the immediate salvation of the judiciary from the path of destruction the likes of Justice Naron have set it.