Certainly, the 2007 General Elections are entering an unusual quagmire. Suddenly, the Nigerian Bar Association (NBA) appears to have become the legal adviser to Atiku Abubakar by the way the National Executive Council of the Nigerian Bar Association (NBA) has been reacting to court judgments affecting Atiku Abubakar.

I must now openly disassociate myself from the unusual position of the Nigerian Bar Association (NBA).

The Nigerian Bar Association (NBA) is not a court. Its views on court judgments are not authoritative, they are simply private views.

However, the clumsy interpretations given to the latest judgments of the Court of Appeal and the Federal High Court on the issue of disqualification of a candidate calls for open disagreement with the Nigerian Bar Association (NBA) so that the public will not assume that the views of the Nigerian Bar Association (NBA) President and those of some members of the executive represent the position of the entire lawyers in the country. They certainly do not.

From the judgment of the Court of Appeal delivered by the full court and presided over by the President of that court on Tuesday, 3rd April, 2007, the following principles emerged:

• That contrary to the views of the Nigerian Bar Association (NBA) earlier expressed, the Independent National Electoral Commission (INEC) has the constitutional authority to disqualify any candidate of any of the 50 (fifty) political parties who runs foul of the qualifications and disqualifications provisions contained in various sections of the Constitution of the Federal Republic of Nigeria, 1999.

• That contrary to the views of the Nigerian Bar Association (NBA) earlier expressed, the court is not imbued with the authority of disqualifying a candidate notwithstanding the provision of Section 32(5) of the Electoral Act, 2006.

• That contrary to the views of the Nigerian Bar Association (NBA) earlier expressed, since the Independent National Electoral Commission (INEC) is constitutionally empowered under Paragraph 15, 3rd Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria, 1999 to organize, undertake and supervise elections to the stated offices of President, Vice-President, Governor, Deputy Governor, Membership of the National Assembly and States Houses of Assemblies, it has the constitutional authority to screen any candidate and to take decisions on qualification and disqualification including that of Atiku Abubakar.

It must be noted that it was not only the Independent National Electoral Commission (INEC) that appealed, Atiku and the Action Congress (AC) also cross-appealed, although they were the plaintiffs at the trial court.

On the same day, after the Court of Appeal had delivered its epochal judgment, the Federal High Court, an inferior court presided over by Hon. Justice Tijani Abubakar, delivered a judgment several hours after that of the Court of Appeal had been delivered. In its judgment, his Lordship of the Federal High Court held:

• That the Independent National Electoral Commission (INEC) had no authority or right to disqualify any candidate.

• That authority to disqualify a candidate vests in the court and not in the Independent National Electoral Commission (INEC).

• That in view of the judgment of Hon. Justice Inumidun Akande delivered on 28th November, 2006 in the Lagos State High Court (not Federal High Court), the Administrative Panel of Inquiry Report of a panel presided over by the Attomey?General of the Federation cannot be used to disqualify Atiku Abubakar.

To appreciate the absurdity of the position of the Nigerian Bar Association and the judgment of the Federal High Court, with reference to the decision of Hon. Justice Inumidun Akande of the High Court of Lagos State, it is necessary to recall the following facts:

• On 24th August, 2006, the Economic and Financial Crimes Commission (EFCC) produced an investigation report.

• On 5th September, 2006, the Administrative Panel of Inquiry headed by the Attorney?General of the Federation came up with its report on certain matters of corrupt practices involving the Petroleum Technology Development Fund (PTDF).

• Twenty-two (22) persons including five (5) public officers were the subject of the investigations by the Economic and Financial Crimes Commission (EFCC). Otunba Oyewole Fashawe was one of them. Atiku Abubakar was also one of them.

• Because Otunba Oyewole Fashawe alleged that he was subjected to some sorts of detention in the course of investigation, he approached the Lagos State High Court for the enforcement of his fundamental rights in October, 2006.

• In the fundamental rights enforcement procedure action, he joined as respondents: the Attorney?General of the Federation, the Inspector?General of Police, the Economic and Financial Crimes Commission (EFCC) and the State Security Services.

• In Otunba Fashawe’s High Court of Lagos State action, Atiku Abubakar was not a party. Independent National Electoral Commission was not a party. In essence, all the other persons covered by the Economic and Financial Crimes Commission (EFCC) Report and Chief Bayo Ojo’s Administrative Panel of Inquiry Report, were not parties.

• Both the Economic and Financial Crimes Commission (EFCC) Report and Bayo Ojo’s Federal Government Administrative Panel of Inquiry Report were executive and administrative actions or decisions of the Federal Government and its agencies.

• Otunba Oyewole Fashawe did not even sue in a representative capacity; he sued by himself as Otunba Oyewole Fashawe in a private capacity and for enforcement of personal rights. In any event by virtue of Section 54 of the Evidence Act, the judgment in Fashawe’s case is not for all purposes or for all persons.

• On 12th September, 2006, Atiku Abubakar filed an action at the Federal High Court, Abuja, seeking principally, an order to set aside both the Economic and Financial Crimes Commission (EFCC) Report and the Administrative Panel of Inquiry Report of the Attorney?General of the Federation, Chief Bayo Ojo. That case is before Hon. Justice Abimbola Ogie and it is still pending.

• In that suit challenging the Administrative Panel of Inquiry Report, Atiku Abubakar joined the following persons as Defendants: Attorney-General of the Federation, Chief Bayo Ojo, SAN, Mrs. Obiageli Ezekwesili, Mallam Nasir Ahmed el-Rufai, Bamidele Dada, Major General Abdullahi Mukhtar, Economic and Financial Crimes Commission (EFCC), National Assembly, President of the Senate and Speaker of the House of Representatives.

It is clear from the above incontrovertible facts that no court of competent jurisdiction has yet set aside the Economic and Financial Crimes Commission (EFCC) Report of 24th August, 2006 and the Administrative Panel Report of 5th September, 2006, particularly in respect of the findings and recommendations against Atiku Abubakar and the twenty (20) remaining persons covered by the two reports.

The settled position of the law is that the High Court of Lagos State presided over by Hon. Justice Inumidun Akande lacks the legal competence to entertain any claim against the Federal Government’s Administrative Panel Report in view of Section 251(1)(r) of the Constitution of the Federal Republic of Nigeria, 1999, which provides as follows:

"251(1) Notwithstanding anything to the contrary contained in this Constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -

(r) any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action or decision by the Federal Government or any of its agencies."

Atiku Abubakar was obviously aware of the above constitutional constraints on the High Court of Lagos State in respect of any determination affecting the Economic and Financial Crimes Commission (EFCC) Report of 24th August, 2006 and the Federal Government Administrative Panel of Inquiry Report of 5th September, 2006, hence he filed an action on 12th September, 2006 at the Federal High Court, Abuja against the findings and recommendations in those two reports.

Firstly, the Court of Appeal judgment with the principles established by that court in this matter is superior to that of the Federal High Court presided over by Hon. Justice Tijani Abubakar in view of Section 287(2) of the Constitution of the Federal Republic of Nigeria, 1999 which provides as follows:

"287(2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Court of Appeal." Consequently, the basis of the judgment of the Federal High Court that the Independent National Electoral Commission has no power to disqualify candidates is a direct affront against the decision of the Court of Appeal which held that the Independent National Electoral Commission has power to disqualify candidates. To that extent, it is clearly and unequivocally contradictory.

It would have been better for the Federal High Court which delivered judgment later in the day to have postponed its judgment when, first, it was aware that the Court of Appeal would deliver its judgment on that same day and secondly that it had delivered the judgment in the morning whereas the Federal High Court delivered its judgment in the afternoon on the same subject matter.

Secondly, how could a Federal High Court Judge who should be aware of his jurisdiction under Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 particularly subsection (1)(r) rely as an authority with respect to the Administrative Panel of Inquiry Report on the judgment of a Judge of a State High Court which has been divested of any judicial competence by Section 251(1)(r) of the Constitution? Such a stance by Hon. Justice Tijani Abubakar amounts to basing his judgment on a nullity and as has been stated by the legendary Lord Denning in the case of Macfoy v. U.A.C. (1962) A.C. 152 at 160: "You cannot put something on nothing and expect it to stay there. It will collapse."

Thirdly, the judgment of the High Court of Lagos State delivered on 28th November, 2006 is a subject of an appeal to the Court of Appeal, Lagos Division and that appeal is still pending.

One must ask: Whose interest is the present leadership of the Nigerian Bar Association serving? Whenever a judgment is delivered in favour of Atiku Abubakar, the Nigerian Bar Association will applaud such decision to high heavens almost at the risk of losing professional decorum and dignity with the usual refrain “the judgment is a victory for democracy”. When such judgment is criticised by a lawyer, the Nigerian Bar Association will descend on such lawyer using derogatory remarks against such lawyer. However, when the court decides against Atiku Abubakar, the Nigerian Bar Association will down play the defeat and search for reasons to confuse Nigerians with regards to the efficacy of such judgment.

I do not know what official or non?official role the Nigerian Bar Association has in its new assignment. When has it become the duty of the Association of Lawyers (with varied political interests) to take this absurd position on behalf of all Nigerian lawyers in this country? If a decision is important and may positively or negatively affect the constitutional order, it behoves the National Executive of the Nigerian Bar Association to take such judgment, analyse it and seek as many views of Nigerian lawyers as possible before coming to a conclusion. Even in that respect, a special committee ought to be set up to examine the implication of such judgment on the rule of law vis?a?vis the constitutional order of the polity.

However, it is disgusting and indeed nauseating most times to see the leadership of the Bar reacting to a judgment be it of the High Court, the Court of Appeal or the Supreme Court immediately it is delivered and before a copy of the judgment is available for study by the leadership of the Bar. The Nigerian Bar Association is not the property of one person or group of persons in the Executive of the Nigerian Bar Association whatever may be the interest of such person or persons on any matter.

The basis of these cases is the disqualification upon indictment for embezzlement or fraud of any candidate pursuant to the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999.

Indictment for embezzlement or fraud is a disqualification provided for by various sections of the Constitution. In respect of candidates for the office of the President, the provision can be found in Section 137(1)(i). In respect of candidates for the office of the Governor, it is section 182(1)(i). In respect of candidates for the office of the Membership of the National Assembly either of the House of Representatives or the Senate, it is Section 66(1)(h). And in respect of candidates for the office of the State House of Assembly, it is Section 107(1)(h) of the Constitution.

Some professors and ex-govemors have variously argued that those provisions are subject to a proviso. They are definitely wrong and misguided. They have misread and misconstrued sections 137(2), 182(2), 66(2) and 107(2) of the Constitution of the Federal Republic of Nigeria, 1999.

For example, we take Section 137(2) which provides as follows:

"137(2) Where in respect of any person who has been -

(a) adjudged to be a lunatic; (b) declared to be of unsound mind; (c) sentenced to death or imprisonment; or (d) adjudged or declared bankrupt, any appeal against the decision is pending in any Court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier."

The sub-section speaks for itself. It is only when a candidate has been adjudged to be a lunatic, declared to be of unsound mind, sentenced to death or imprisonment or adjudged or declared bankrupt and an appeal is pending in each case that the proviso becomes relevant.

Those four instances were part of the conditions for disqualification in sub-section (1) of the sections listed above. For example, they are contained in Section 137 subsection (1)(c), (d), (e) and (f). But they are taken out again to emphasize in subsection (2) that in each of those four instances, if an appeal is pending, then you wait for the outcome of the appeal. The proviso in sub-section (2) has nothing to do with indictment for embezzlement or fraud in Sections 137(1)(i) (Presidential Election); 182(1)(i) (Governorship Election); 66(1)(h) (National Assembly Election); and 107(1)(h) (State House of Assembly Election) of the Constitution of the Federal Republic of Nigeria, 1999.

CONCLUSION

The judgment of the Court of Appeal is the law on who has the constitutional right to disqualify candidates. The judgment of the Federal High Court which contradicts the position of the Court of Appeal on the same issue, has no legal effect and no legal meaning.

The decision of the Lagos State High Court Judge on the Federal Government Administrative Panel of Inquiry was unconstitutional, null and void in that it violates section 251 of the Constitution. All that remains is for the Court of Appeal, Lagos Division to pronounce on it.

The Independent National Electoral Commission (INEC), which has now been confirmed by the Court of Appeal as having the authority to disqualify candidates, is justified in its disqualification of Atiku Abubakar. Until the Supreme Court decides otherwise, Atiku Abubakar is not a candidate in the presidential election taking place on Saturday, 21st April, 2007.

CHIEF GANI FAWEHINMI LLD, SAN
Friday, April 6, 2007