Chief Mike I. Ahamba SAN was the lead counsel of the legal team that prosecuted Buhari’s contention that the election was a farce and a legal nullity,
while Justice Niki Tobi read the lead judgement in favour of Yar’Adua. While we invite fellow Nigerians to read and digest the majority judgements, we
wish to make a few comments on Niki Tobi’s grand standing to the gallery as he made remarks on Chief M.I. Ahamba SAN.

Our purpose for this exercise is to let Hon. Justice Niki Tobi realise that those of us who revere the intellectual prowess of Chief M.I. Ahamba in matters
concerning the legal practice, and his positive social standing were not particularly happy about the unsavoury comments on his person and intellect.
Moreso when he is one of Nigeria’s leading lawyers and Hon. Justice Niki Tobi, a highly respected and regarded jurist.

Honourable Justice Niki Tobi regaled in the anonymity of the live T.V. coverage that did not show his face and those of other Justices to indulge in the expensive joke of trivialising the work of a lawyer who had meticulously taken his case from Appeal Court, to the Supreme Court. The lead judgement by Hon. Justice Niki Tobi had caused some wry smile and sniggers in the hallowed chambers of the Supreme Court when he said that Chief Mike Ahamba, Buhari’s lead counsel had not presented any case for his client that could enable him take a diecision in his favour. Hear him:

generally acknowledged to be legendary. Could he have degenerated to such level of professional incompetence as to lead his client astray by closing his case without leading evidence as stated by the learned Justice in the judgment? On 2 the other hand the Learned Justice Tobi is a jurist in whom any including us had absolute trust and confidence.

Could he have written such a condemnation without a just cause? We remember the bags of documentation that were shown on television during the trials, and the lamentations of the Learned Judge after the judgment on 26th February, 2008. Our conclusion was that one of the two gentlemen was taking everyone for a ride. We therefore decided to find out, and thus went in search of the relevant court processes. Fortunately, we made headway. We have spent some time reading through the papers: Ahamba’s brief, Respondent’s brief, Ahamba’s reply brief to each of the two major Respondents (INEC and Mr. President), and the leading judgment of Justice Niki Tobi. Our discoveries were very revealing, and we wish to share them with our fellow Nigerians for the avoidance of doubt as to who really took us for a ride, and put his reputation at stake.

The most interesting discoveries was in respect of the interpretation of Section 146(1) of the Electoral Act which appears to have been of great importance in
the determination of the appeal one way or the other. In the concluding part of his judgment, the Learned Justice had in his flowery style of writing declared:
“Proving an election or proof of an election is not as easy as the Englishman finding coffee on his breakfast table and seeping it with pleasure particularly in the light of  Section 146(1) of Electoral Act. A petitioner has a difficult but not an impossible task”.Then the Justice thereafter declared: “If there is evidence that despite all the non compliance with the Electoral Act the result was not affected substantially, the Election Tribunal, must, as a matter of law, dismiss the petition; and that accords with Section 146(1) of Electoral Act. This point vindicates paragraph 8 above. Section 146(1) is a friend of a Respondent, a
real friend which the Respondent finds most useful at the greatest hour of need. And the 4th and 5th 3 Respondents find in Section 146(1) the greatest friend in his appeal”.

The “friendship” which His Lordship ‘donated’ to a Respondent under Section 146(1) was clearly the product of a prevaricating mind, as, from what we read
in the judgment, that was not the original position of the learned jurist in the early part of his judgment. Infact we found that there were four different and
inconsistent definitions of that very important section of the Act. In the first definition quite early in the judgment, His Lordship placed on the Respondent, the onus to satisfy the court of tribunal that the election was conducted substantially in accordance with the principles of the Act, and that the non-compliance did not affect the result of the election and further said that to satisfy the onus, a Respondent needed to present “exculpatory evidence” before the tribunal. These are his words:

“A petitioner who files a petition under Section 145(1) of the Electoral Act has the burden to prove the ground or grounds. This is because he is the party alleging the grounds and he has a duty to prove the affirmative. His is the party who will lose if no evidence is given on the grounds. If the petitioner does not prove his case under Section 145(1) of the Electoral Act, the action fails”. ”When does Section 146(1) of the Electoral Act come into play in the determination of the petition? Is it before Section 145(1)? Is it after Section 145(1)? Or is it concurrently with Section 145(1)? It cannot be before or after Section 145(1). It should be concurrently with the subsection. I say so because the tribunal or court can only arrive at the decision in Section 146(1) in relation to the proof of Section 145(1) by the petitioner.

The tribunal or court cannot arrive at the decision in the section in vacuo or in a vacuum but only in relation to the case presented by the petitioners in terms of proof. I 4 seem to be repeating myself. I do not have any apology for that. It is for emphasis” The Learned Justice continued: “Section 146(1) seems to create the impression that the Respondent is not concerned with it or out of it. This is because the subsection only talks about the satisfaction of the tribunal or court that the election was conducted substantially with the principles of the Electoral Act. The impression being an image or effect that is produced in
my mind, not being in realism, is not the actual meaning and implication of the subsection. In view of the fact that a tribunal or court of law in our adversary system, cannot go out in search for evidence to satisfy itself that the election was conducted substantially with the principles of the Electoral Act, the Respondent comes in.

He has to bring exculpatory evidence that non
compliance with the provisions of the Electoral Act did
not affect substantially the result of the election.
At what point or at what stage will the Respondent bring
the exculpatory evidence? In other words, at what point
or stage will silence or a conduct of mute on the part of
the Respondent be detrimental to his case?
The Respondent should not wait for the time when the
tribunal or court forms the opinion in Section 146(1). As
the tribunal or court can only form the opinion at the
point or stage of writing judgment and thereafter
delivery of the judgment, the Respondent should give
evidence that ‘non-compliance did not affect
substantially the result of the election’ at the trial.
“He cannot afford to wait for another opportunity
because it will never come his way. The gates of the
tribunal or court will be closed. He no longer has the
Section 146(1) redress. With the evidence placed before
the tribunal or court by the petitioner vide Section
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145(1) of the Electoral Act and the One placed by the
Respondent, vide Section 146(1) of the Act, the tribunal
or court concurrently evaluated the evidence and gives
judgment to one of the parties”.
We have quoted this long passage of the judgment to show that Justice Tobi
was unequivocal in placing the onus of proof of Section 146(1) squarely on the
Respondent. By the above conclusion he clearly upheld the submission of Chief
M.I. Ahamba, SAN which the Learned Justice had earlier summarized in the
judgment. It would also appear that at the stage he was in agreement with the
dissenting Justices which should have made them four on that issue, and the
appeal determined in favour of General Buhari. But later in the judgment he
changed his mind, and by so doing changed the course of politico/judicial
history in election petitions. For, had he not changed his mind on the
interpretation of Section 146(1), with the finding by the Court of Appeal of proof
of un-serialized ballot paper, the decision would have been 4-3 in favour of
General Buhari and his Counsel. But he changed inexplicably in subsequent
interpretations of Section 146(1) which we shall refer to as interpretations 2, 3
and 4.
Interpretation 2:
“In my view, while the burden in the first limb is in the
first place unequivocally and totally on the petitioner,
the burden on the second limb is shifted to the
Respondent after the petitioner has satisfied the burden
placed on him to prove that the non-compliance
substantially affected the result of the election”.
A look at the italicized portion of the first interpretation would show that this
very burden is the same as His Lordship had said that the Respondent could
only discharge by adducing exculpatory evidence. The subsection has now been
shared into two first limbs.
Interpretation 3:
“As the tribunal or court can only come to the conclusion
that the election was conducted substantially in
accordance with the principles of the Act based on
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evidence, the party who should give the evidence is the
Respondent, because he is the one deemed by the
subsection to assert that the non-compliance with the
principles did not affect substantially the result of the
election”.
The interpretation appears to have restored the responsibility to the
Respondent. Then there is a further interpretation.
Interpretation 4:
“But that should be after the petitioner has proved that
the non-compliance affected the result of the election”.
It is difficult for one to understand why a Justice of the Supreme Court would
prevaricate and rigmarole in such a manner in the interpretation of such an
important section.
First, petitioner has Section 145(1) to prove while a Respondent has Section
146(1) to prove and the evidence adduced by the two sides on the separate
subsections concurrently evaluated; second, petitioner has the first limb of
Section 146(1) to prove the Respondent proves the second limb; third,
petitioner has to prove the entire subsection 146(1) before the Respondent may
prove that the election was conducted in substantial compliance with the
Electoral Act; and fourth, the petitioner has to prove that the non-compliance
substantially affected the result of the election before a Respondent may prove
that the election was conducted in substantial compliance with the principles of
the Electoral Act. This looks more like a merry-go-round.
In view of these four interpretations, who then has the burden to prove what in
this central subsection? Which one should the lower courts and tribunals adopt
in future cases?
It is noteworthy that at a stage in the course of considering this issue the
Learned Justice declared:
“”I am confused. I could be alone in the pool of confusion”
We think he was sincerely right! The only problem is that he has transferred
that confusion to the entire electoral process and judicial precedent. One
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wonders why Justice Niki Tobi should not have left our revered Chief M.I.
Ahamba SAN out of his pool of confusion.
It would appear that it was this confusion, not Section 146(1) of the Act, that
proved to be the real friend which the 4th and 5th Respondents found “useful at
the greatest hour of need”. Otherwise the game was over in the Appellant’s
favour.
Apart from the crisis of the contradictions in the interpretation of Section 146(1)
of the Electoral Act, Justice Niki Tobi expressly blamed Chief Ahamba for not
doing this or that, and in doing so employed the type of sarcasm that did not
pretend to show the slightest respect to the Senior Advocate and to a point that
made us wonder whether there was an existing feud between the two legal
giants. But then most of the issues to which he said that Chief Ahamba had no
answer and so provided none were expressly and exhaustively argued in the
briefs of argument filed by the Learned Senior Advocate in the appeal.
For example on the issue of whether the President of the Court of Appeal had
the competence to make practice directions for Election Petition Tribunals, the
Learned Justice had quoted with relish the argument proffered by Counsel for 1st
and 2nd Respondents and 4th and 5th Respondents in which they submitted that
should Chief Ahamba’s submission that the practice direction was done without
competence succeed, the petition would then be incompetent. He did not quote
the submission of Chief M.I. Ahamba, SAN to which the Respondent’s cunsel
responded, and this was the approach on other issues. Instead he accused Chief
Ahamba of failing to respond to the points raised by the Respondent. There are
his words as used in the different segment of his Lordship’s extensive
consideration of this point.
(a) “I do not have adequate answers to the above submission by both
Counsel and I do not think counsel for the appellant has answers. After
all, he did not provide answers in his reply brief. I take it that if
he had answers, he should have taken the opportunity of the
Reply Brief to do so. There is a vernacular adage in my village that if
you have nothing to say, say nothing, than say the wrong thing, because
it will turn out to be nothing at the end of the day”.
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(b) Learned Senior Advocate for the Appellant does not have an
answer to the above valid submissions.
Does Counsel for the Appellant wish this court to strike out the petition?
Is that what his client wants? I think not. But that is the legal essence
and consequence of his submission”.
(c) “Assuming that the Practice Directions are in conflict with the Evidence
Act, has the Appellant not waived his right to complain having used
them? i say so because he did not complain that they violated the
constitution. If he had so complained, he should have been on a
strong position as he cannot waive a constitutional right which he
shares in common with the public”.
(d) “I see Learned Counsel for the Appellant is not confused, I am. First
counsel is not even sure whether the Court of Appeal refused to
look at the ‘thousands of documentary evidence’. That is the
meaning of the conjunction “if”.
Is it true that Chief Mike Ahamba did not respond to the legal submissions of the
adversary counsel as variously stated by the Justice Niki Tobi in the judgement?
Regrettably, it is not true. The Reply of the Appellant, contrary to the Learned
Justice’s apparently unequivocal statement, contains all that it was said not to
contain. The Reply on the issue of Practice Direction covers from pages 38 – 40
of the Reply to the 4th and 5th Respondent’s Brief of Argument, and we
hereunder reproduce the submissions verbatim:
“4.07A: The only response we may have to Respondent’s
submission on their issue vi which is on Practice Direction is to
respectfully refer this Honourable Court, to the sixth schedule to
the Nigerian Constitution whereat the powers of the President of
the Court of Appeal on the election petition for a was expressly
limited to appointment of panels. Expression Unius, exclusion
alterem is the time hallowed maxim which we submit applies to
the constitutional powers of the President of the Court of Appeal
vis-à-vis election petition tribunals.
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4.07B: The Counsel to the Respondent has in his paragraph 11.9
raised certain questions for Appellant’s counsel to answer.
Though the points are elementary they are hereunder answered:
(a) The procedure adopted in filing the petition was as a result
of the existence of the Practice Direction which could not be
ignored until its nullification
(b) Furthermore the provision about front-loading, depositions,
etc. already exist under Order 41 of the Federal High Court
(Civil Procedure) Rules which is statutorily applicable to
first instance election petition proceedings. This will not be
elevated to e superior to the Electoral Act or the Nigerian
Constitution as the Practice Direction has been elevated by
the Court below and the Respondents before this
Honourable Court.
(c) Non-compliance with the Practice Direction No. 1 2007 as
amended cannot operate to nullify a petition otherwise valid
under the Electoral Act. As stated by the Supreme Court in
University of Lagos V. Aigoro (1984) NSCC 745 at 7551-5,
while a Rule of Court is an enactment, Practice Direction is
not. So wherever they conflict, the Rule of Court must
prevail. See also Abubakar V. Yar’Adua (2008) 1SC (Pt 11)
77 at 1271-20 and 13535 – 1367.
Consequently the provisions of the Practice Direction,
even if valid (which is not conceded) cannot operate to
whittle the effect of full compliance with paragraph 4 of
the First Schedule to the Electoral Act. The Practice
Direction 2007 is, we submit inferior to paragraph 4 of
the First Schedule to the Electoral Act just as it has been
adjudged to be inferior to paragraph 5 thereto. A petition
can therefore not be invalidated solely for noncompliance
with a Practice Direction.
(d) The deposition of the 4th and 5th Respondents’ witnesses
was challenged under the provisions of the Evidence Act
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which was expressly quoted in the Appellant’s address in
the court below, and before this court. Reference to Practice
Direction was only a support argument.
What one means here is demonstrated by the words of Bello JSC in University of
Lagos V. Aigoro when he said at page 756 (29 – 4) thus:
“Furthermore, although I am convinces that since the
publication of the Practice Directions the pronouncement
of some of us, the Justices of this Court, appear to have
over-emphasized the efficacy of the Directions,
nevertheless, I am satisfied that the Directions were not
intended and did not purport to put a shackle to the
exercise of the discretion of the court under Section
314(4) of the Supreme Court Act 1960 or Order 1 Rule 5 of
the Rules”. (Emphasis supplied).
4.07C: We further submit that the validity of the petition cannot arise in
this appeal since the Court of Appeal’s decision on that point was not
appealed against.
We therefore submit that there is nothing in the
Respondent’s Brief to justify the ultra vires act of the
President of the Court of Appeal in the making of the
tribunals and Court Practice Directions 2007 as
amended”.
The question now is: can it be said that counsel for the Appellant offered no
answer to those points to which the Learned Justice said he had none and
offered none. Is the sixth schedule not part of the constitution? why did the
renowned jurist not consider it?
It is either the Learned Justice did not read Chief Ahamba’s briefs, which would
be unfortunate, or he had some hidden agenda which would be sacrilegious.
After all was his judgment not final thus demanding greater responsibility?
For us, even as laymen in law, some of these contradictions are baffling. For
example, after quoting the provisions in the Practice Direction which required
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that all petitions be accompanied by written statements on oath, the Learned
Justice curiously still stated:
“A party pleads a court process which exists. A party
cannot plead facts which are not known to him at the
time of settling the pleadings. How can the Respondents
anticipate the fact that 19 witness depositions were
sworn in violation of Section 83 of the Evidence Act? Are
the Respondents God? Only God knows and sees the
future. No human being can”.
The question the Learned Justice failed to anticipate must be asked by readers
of his judgment is this: were the depositions not filed and served together with
the petition to which the Respondents filed their respective replies? If they were
(the Justice had earlier held that Chief Ahamba filed the petition under the
Practice Direction), did the Respondents deny seeing the depositions that were
bound together with the petition and serves on each respondent, and, if they did
deny seeing the deposition, is the Learned Justice saying that he in honesty
believed them? Incidentally we had the privilege of reading two Respondents’
briefs in issue, and it is shocking to realize that none of them denied seeing the
depositions before filing their replies. What then was the source of the assertion
by his Lordship that the Respondents did know how the depositions were sworn.
In this judgement there are statements that suggest that no evidence was
tendered by the Appellant, then there are others that suggest that documents
tendered were expunged, then yet others that the documents tendered by the
Appellant were evaluated and adjudged worthless even though His Lordship
declared elsewhere that the definition of evaluation of evidence excluded
documentary evidence! Can all these justly co-exist in a single judgment in a
state of fair mindedness?
One can go on and on to highlight several other startling contradictions
suggestive of a mission to assist the Respondents at all cost. A leading
judgment in a final court being a binding precedent on all other courts in this
country should have been more circumspect, and less unfair. If Justice Niki Tobi
had any scores to settle with Chief M.I. Ahamba San the judgment in a
Presidential Petition Appeal was definitely not the proper forum for that
settlement. One hopes that he has noted that all patriotic, intelligent,
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intellectual and discerning Nigerians, even at the literate grassroots level, know
that if anyone got bruised by that judgment it was definitely not Chief M.I.
Ahamba SAN.
____________________ _________________________
Nnamdi Nwigwe Bob Kay Njemanze
80 Njemanze Street,
Owerri,
Imo State.