Excerpts of "Mechanical Vs. Dynamic Justice" by Emmanuel Ogebe, Esq., US Nigeria Law Group, 2023 Nigeria Special Election Observer, September 8, 2023.
_*"The court’s failure to inquire into the gravity of allegations that a man who seeks to be president of Nigeria not only has a Guinean passport but lied about it on oath is a failure to protect national security and integrity.*_
_*"Sitting US President Bill Clinton lost his law license over the Monica Lewinsky Scandal not because he slept with the intern in the White House BUT BECAUSE HE LIED TO THE INVESTIGATORS ON OATH ABOUT IT. The sanction was to send the signal that a president should not set a bad example by lying to the government.*_
_*"This is the problem with mechanical justice versus dynamic justice. At no point did the (Justice Tsammani's PEPT) court show a concern for the safety of Nigeria from corrupt predators, fraudsters or charlatans which was the clear intent of the constitution and ancillary laws."*_
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*NB:* Pls, take special note of all highlights.
The court (Presidential Election Petition Tribunal) should have allowed the testimony of the witnesses given in court and the cross-examination even if it disallowed their late-filed witness statements for the sake of equity and in the interest of Justice.
In my defamation lawsuit against the Buhari administration over the Chibok girls I sponsored to school in US, the Attorney General did not file FGN’s pleadings or statement of defense till I came from US, testified and was cross-examined by them.
After I closed my case as Plaintiff, they then rushed to the court seeking leave to file their defense. We opposed it because having discovered the entirety of my case, they were only now going to file their Defense *one and a half years after the case began when it should have been filed within a month!*
*Yet Abuja High Court Judge Abba Mohammed, now a member of the presidential election court, granted the FGN leave to file the pleadings late even after noting that they lied about not being aware of the case when in fact they had been participating for over a year.* This was extremely prejudicial to my case.
*However he said he did so “in the interest of justice.” Why couldn’t the (Labour Party and PDP) petitioners’ benefit from such magnanimity or mercy in the interest of Justice too?* Rather, Justice Mohammed said the petitioner failed by not serving spreadsheets of election irregularities with the petition on Respondents.
Yet *(in my 2017 suit)* if he had similarly denied FGN’s late filing of its statement of defense after I had presented my evidence, I would have won and my case would not still be dragging in the high court six years later!
I also submit that the subpoenaed witnesses should not be affected by the time-limiting requirement to file evidence with the petition.
Per a social media post, “In ABBA YUSUF v APC, an unreported case of the Court of Appeal, Kano in Appeal NO CA/KN/EP/Gov/KAN/05/2023 of 24 August 2023, it was decided thus: *"Flowing from the catalogued statutory position of a subpoenaed witness, as a witness of a court, it will be incongruous and preposterous to hold that his statement on oath must willy-nilly accompany a petition. As a matter of fact, it will evince natural and human impossibility for such a court witness to file his deposition alongside a petition. The reason is simple. A subpoenaed witness appears in court on the invitation of a court on the application of a party. A subpoenaed witness cannot suo motu present himself before a court." The beneficiary of the judgment was APC!”*
The court should have aimed to mitigate the situation. In my defamation case, Justice Abba Mohammed awarded costs against the FGN and allowed them to file late. Myself and the other parties have paid penalties to the court for late filing as is standard practice. There are less drastic sanctions than expungement of the evidence for late filing more so in a sensitive like this of national and international significance.
This unfortunately is one drawback to the reservation of objections till the end of the case because if these had been ventilated earlier, petitioners would have had an opportunity to rectify the infractions eg by a motion for enlargement of time and to deem as timely filed.
*Selective Judicial Notice*
It is important to note that *the conclusion of the case is not that the allegations against Tinubu were not true. In summary - Tinubu had a Guinean passport and a fake university certificate but they were not tendered on time and had a drug forfeiture, oh but though it was tendered on time, it wasn’t a conviction.*
While it is unfortunate and inexplicable why the foreign citizenship and forged certificate were not filed timely, the court itself should have noted the gravity of the weighty allegations in light of national interest.
*Curiously, the court said they took judicial notice of the fact that Peter Obi had Anambra state indigeneship, even though it wasn’t an issue before them, but the court didn’t take judicial notice of the fact that Tinubu has a Guinean citizenship even though the issue was before them!*
A responsible court concerned for the integrity and security of the nation would not shut its eyes to sensitive evidence or explosive allegations of this nature.
*If they felt that the Guinean passport issue was smuggled in after the settlement of pleadings, they could have authorized extra time for the petitioners to respond to it.* Note that the trial ended earlier than scheduled as the respondents didn’t utilize all the time allotted to them. In fact, with the numerous SANs and lawyers in their retinue, taking them by surprise was not a serious capacity concern. After all, over a dozen SANs combined presented only one defense witness. The respondents’ lawyers outnumbered the petitioners three to one. There were three sets of respondents’ lawyers to only one set of petitioners’ lawyers!
Indeed, the manner in which Olanipeku SAN, counsel to Tinubu, deconstructed LP’s Amazon Witness PW7 during cross examination one day after her bombshell testimony is the stuff of legends.
Therefore *the court’s failure to inquire into the gravity of allegations that a man who seeks to be president of Nigeria not only has a Guinean passport but lied about it on oath is a failure to protect national security and integrity.*
*Sitting US President Bill Clinton lost his law license over the Monica Lewinsky Scandal not because he slept with the intern in the White House but because he lied to the investigators on oath about it. The sanction was to send the signal that a president should not set a bad example by lying to the government.*
This is the problem with mechanical justice versus dynamic justice. *At no point did the court show a concern for the safety of Nigeria from corrupt predators, fraudsters or charlatans which was the clear intent of the constitution and ancillary laws.*
*There was scant effort to explore the mischief rule of what the drafters were trying to cure. All one saw was a mechanical and slavish adherence to the letter and not the spirit of the law thereby resulting in a catastrophic conclusion that criminality trumps (triumphs over) constitutionality.*
It is worrisome that criminal-minded elements are more creative than adjudicators and so exploit this to their advantage.
*On March 10th, 2017, the Supreme Court sacked a Benue state Rep member, for submitting a FORGED CERTIFICATE to INEC.*
*Delivering the lead judgment, Sidi Bage, JSC held, “This court...must take the lead, righting the wrong in our society... Allowing criminality and certificate forgery to continue to percolate into the streams, waters, and oceans of our national polity will only mean that our waters are and will remain dangerously contaminated. The purification efforts must start now and be sustained as we seek, as a nation, to now change from our old culture of reckless impunity. The Nigerian Constitution is supreme. It desires that no one who has ever presented a forged certificate to INEC should contest election into the Nigerian National Assembly. This is clear and sacrosanct."*
To my mind, the court should have allowed the testimony of the witnesses given in court and the cross examination even if it disallowed their late-filed witness statements for the sake of equity and in the interest of Justice.
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