A caucus of the Peoples Democratic Party (PDP) in the House of Representatives on October 17, 2019 asked the Chief Justices of Nigeria (CJN), Justice Ibrahim Tanko Muhammad to appoint the seven most senior Justices of the Supreme Court to hear Atiku Abubakar’s appeal.
According to PDP House of Representatives Minority leader, Kingsley Chinda, Justices Ibrahim Tanko Muhammad (CJN), Rhodes-Vivour, Mary Odili, Sylvester Ngwuta, Olukayode Ariwoola, Musa Dattijo Muhammad and Justice Kumai Bayang Aka’ahs are by precedent should sit on Atiku’s appeal.
Atiku, PDP presidential candidate in the last election, had filed an appeal at the apex court to challenge President Muhammadu Buhari’s victory at the Court of Appeal presidential election petition tribunal.
In a statement signed by Kingsley Chinda, PDP leader in the house, the caucus said Nigeria has set the precedent of appointing the most senior justices to hear presidential election appeals since 1979.
“The hearing of the appeal on the decision of the Presidential Election Petition filed by Alhaji Abubakar Atiku and our great party, the People’s Democratic Party, (PDP), begins a few weeks at the Supreme Court,” it said.
“The practice of selecting Justices to hear the appeal is expected to precede the hearing, going by age-long convention. What isn’t conventional is the present attempt to influence Chief Justice Ibrahim Tanko Muhammad, going by reports in the media, to subvert the age-long and time-tested practice, precedent and convention of selecting the most senior Justices of the Supreme Court to hear the presidential election appeal.
“Chief Justices of Nigeria through time have never in the selection of the Supreme Court’s Election Petition Appeal Panel surrendered to the phony dictates of the ruling parties.
“We are proud to state here that never in our great party’s time in power, did it or its personages, dictate selection of panel members to Chief Justices; NEVER.
It would be recalled that on May 21, 2019, the President of the Court of Appeal, Justice Zainab Bulkachuwa, recused herself as a member of the Court of Appeal Presidential Election Petition Tribunal, following petitions filed by the PDP, and its presidential candidate, Atiku Abubakar that she was likely to be biased against them.
Atiku and PDP had filed applications on May 16, 2019 alleging that their petition challenging the victory of the APC and its candidate, President Buhari, in the February 23, 2019 poll, would not be handled impartially by the tribunal due to Justice Bulkachuwa’s ties to top members of the APC.
They noted that while Justice Bulkachuwa’s husband, Adamu, is a senator-elect on the platform of the APC, the party whose victory at the February 23, 2019 presidential election they are challenging at the tribunal, her son, Aliyu Abubakar, was a governorship aspirant on the platform of the same party in Gombe State.
They also quoted a statement made by Justice Bulkachuwa at the inaugural sitting of the tribunal on May 8, 2019 as pre-judging their petition. The Court of Appeal President who was presiding over the 5-man panel for the Presidential Election Petition Tribunal Panel was quoted as saying in her speech at the inaugural sitting of the tribunal that, “Elections are held in Nigeria, every four years into elective positions. No matter how well the elections are conducted, there are bound to be complaints.”
The Presidenial Election Petition Tribunal’s 5-man Panel sat and heard the bias-applications with Justice Bulkachuwa presiding. On May 21, in a unanimous ruling the tribunal panel dismissed the application.
Justice Olabisi Ige, who read the lead ruling of the panel, held that the relationship between Justice Bulkachuwa and her husband, Adamu Bulkachuwa, who is a senator-elect then, and her son Aliyu Abubakar, a governorship aspirant, both on the platform of the APC, was not weighty enough to infer that she would be biased in her handling of the proceedings of the panel.
Justice Ige also ruled that no inference of likelihood of bias could be inferred from the speech delivered by Justice Bulkachuwa at the inaugural sitting of the tribunal on May 8 that she had pre-judged the petitioners’ petition. The judge chided the petitioners for inferring the speech in part and not its whole context.
Justice Ige held that, “To the petitioners/applicants, the above remark appears to them that the President of this court and the Presiding Justice of this panel had already pre-judged the presidential election as well-conducted and that this petition is one of the complaints that come up no matter how well the election was conducted.
“I am of the solemn view that no such inference is discernible from the above quoted statement. The entire speech ought to be read as a whole in order to truly discover what the content of the inaugural speech portrayed.
“Concerning the complaints of the petitioners/applicants to the extent that the affinity between the Honourable President of this court will engender a likelihood of bias on the part of the Honourable President of this court if she remains the Presiding Justice, I am of the firm view that enough materials have not been placed before this court to show that the Presiding Justice of this panel is likely to be biased against the petitioners/applicants in the hearing and determination of the petition.“I am of the view that the fact that the Honourable President of this court is the wife of Honourable Adamu Mohammed Bulkachuwa and the mother of Aliyu Haidir Abubakar are not weighty enough to impute likelihood of bias against the President of the Court of Appeal.
“The two of them are not parties to the petition before us, and have not shown to be listed as witnesses of the 3rd respondent (the APC) in the petition before us. There is no allegation made against the spouse or the son of the Honourable President of this court in the petition of the petitioners/applicants. Their relationship with the Presiding Justice of this panel is not all capable of causing likelihood of bias against any of the parties in the petition.
“I have deeply ruminated over the affidavit evidence filed in support and against the application of the petitioners/applicants and the various submissions of the various learned counsel to the parties in this petition and I am of the view that the petitioners/applicants have not been able to positively establish the need for the Honourable President of this court and the Presiding Justice of this panel to recuse herself from further sitting or participating in the proceedings in this petition. Consequently, the petitioners’ application fails and it is hereby dismissed”, Justice Ige ruled.
All the members of the panel, including Justice Bulkachuwa, agreed with the lead ruling. Despite that, Justice Bulkachuwa said, “I am recusing myself from the panel for personal reasons.”
She, however, said she was satisfied that the matter had been settled “based on the facts and the law” so that “another female judge will no longer have to face what I have faced.”
This is just as several senior lawyers in the country condemned the PDP petition against Justice Bulkachuwa then, saying the PDP petition was not backed by the provisions of the Judicial Code of Conduct as well the 1999 Constitution as amended.
According to the Chairman of the Presidential Advisory Committee on Anti-corruption (PACAC), Professor Itse Sagay (SAN) said, ‘’ there is no connection, no relationship that can be found in judges code of conduct or in law.
‘’This smacks desperation, absolute display of political hooliganism and mischief the PDP began to exhibit since it lost presidential election. It is as if they have lost everything including their senses, there is nothing they have not been attacking. They see in everything good belonging to the other side as the cause of their travails or loss in the election.
‘’They must be ignored, judiciary must ignore them because even if you bring a substitute, PDP will still find something wrong in the person.
‘’This tells how bad PDP’s case is, when you feel you have a bad case, that is the kind of madness you will descend to if you are as well desperate. Since I was born, I’ve never witnessed this level of expressions of bitterness and desperation by set of a people. If it is truly it is all about service to Nigeria, why will they have go this extremity with expression of bitterness over their loss in an election. They must be ignored, Prof Sagay said.
Emeka Ngige (SAN) said, ‘’Issue of bias or likelihood of bias is a constitutional matter anchored on the right to fair hearing.
‘’While sitting as a justice of the appellate court she participated and presided over many high profile political cases and there was no protest by PDP that her spouse is a politician. One of the notable cases which she presided in 2008 or thereabout was the case of Usman Abubakar (Young Alhaji) Vs Senator David Mark. In that particular case the election of Senator David Mark was affirmed by the court of appeal and PDP hailed the judgment in complimentary terms; they did not raise any objection as to the political affiliation of her spouse. Today the table appeared to have changed, she’s now being pressured to recuse herself because of her spouse’s membership of APC. So you can see the double standards by the political class’’, Ngige stated.
This is just an Abuja legal practitioner, Alasa Ismaila declared that the PDP’s demand that the selection of 7-man panel members to hear and determine Atiku’s appeal be constituted from the seven most senior justices of the apex court as primitive and lacking legal support. ‘’There is no junior or senior Supreme Court justices. Only the best cerebral heads make it to the Supreme Court. They should better get seasoned lawyers to rejig their case which appears lacking in precepts and substance rather than all this noise’’.
A source close to the Supreme Court who craved anonymity said there are other traditions or precedents the apex court applies in adjudications of appeals depending on their nature. ’’In some instances, the CJN could give the case files on each appeal to ten or all the Justices in to study. Thereafter, the CJN will constitute 7-man panel out of the sixteen Justices that went through the case files of the appeal. The panel will hear and decide the appeal the same day.
‘’In other words, the Justices sitting on a particular appeal don’t even know he will sit on it; and invariably don’t know other Justices in the panel prior to the day to hear and decide the appeal. Of course, the CJN takes such measures to avoid collusion or collaboration, in order to frustrate, make it difficult or impossible for politicians with dubious intentions to bungle cases in the courts.
‘’Even on the day of hearing/determining such appeal, the panel members stayed together and ate together; after the lawyers finished their arguments, or when the cases were closed, the panel members sat in conferences, with every member sharing what they felt are the facts, issues and the laws in the appeal just heard.
‘’It is such collective submissions that form the decision of the panel in the appeal; either to uphold the appeal or throw it out. In a situation where a panel member or few members dissent, a dissenting judgment would have been concurrently read after majority decision was read’’.
Of course this measure was adopted in the Supreme Court on October 25, 2007 when 7-man panel of justices of the apex court heard and gave judgement on the same day of October 25, 2007 in the appeal filed by Rotimi Amaechi against Celestine Omehia.
The apex court gave reasons for its judgement on Friday January 18, 2008, for its earlier judgment on October 25, 2007 in the phenomenal case of Amaechi v. Omehia.
Supreme Court in this case of AMAECHI v INEC  5 NWLR [PT.1080] 227 resolved the issue of the wrongful substitution of candidates of Political Parties during elections. The Court held that Amaechi was wrongly substituted with Omehia by PDP and that in the eyes of the law, Amaechi who didn’t contest the election was at all times the legal candidate of PDP at the elections, and proceeded to declare him as Governor of Rivers State.
On January 27, 2016, a 7-panel of the Supreme Court headed by the then CJN Mahmud Mohammed alongsides by Justices Ibrahim Tanko Muhammad, Nwali Sylvester Ngwuta, Kumai Bayang Aka’ahs, Kudirat Motonmori Olatokunbo Kekere-Eku, John Inyang Okoro and Amiru Sanusi heard and delivered judgement in the same day by 6.20 pm in the appeal of Nyeson Wike Vs Dakuku Peterside. The apex court panel however reserved their reasons for the judgement till February 12, 2016. The lead judgement was delivered by Justice Kekere-Eku, whose husband is an APC chieftain, yet she upheld Wike’s appeal. Wike, a PDP member had before then lost at the Tribunal and Court of Appeal. Hence, the apex court justices the PDP is looking up to in Atiku’s appeal won’t be of any help if it fails to sit down and remedy those flaws the Court of Appeal held against it.