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DETAILS of how the President of the Court of Appeal (PCA), Justice Isa Ayo Salami, Governor Kayode Fayemi of Ekiti State, his lawyers and some chieftains of the Action Congress of Nigeria (ACN), exchanged calls and text messages on October 15, last year, the day Fayemi was declared the governor of the Fountain of Knowledge, have been revealed by the sacked governor, Segun Oni.
In his written address before the National Judicial Council (NJC) Special Investigation Panel, Oni, an engineer, detailed Salami’s telephone interaction with the ACN chiefs and counsel, as well as other alleged unethical behaviours.
Former governor of Osun State, Prince Olagunsoye Oyinlola, and the Peoples Democratic Party (PDP) in the state have also submitted their written addresses.
The NJC panel is set to deliver judgement soon.
In Oni’s written address, Justice Salami and Mr. Tunji Ijaiya, who is believed to be the PCA’s link-person with the ACN chieftains, allegedly exchanged 11 text messages and voice calls between October 11 and 15, 2010.
At 9:22a.m., on October 14, 2010, a day to the Ekiti judgement, Fayemi called Tunji Ijaiya with telephone number 08055556655.
On October 15, 2010; the day of the judgement, Mr Titus Ashaolu, one of Fayemi’s lawyers, was the first to send an SMS to Tunji Ijaya at 9:37am.
At 11:08a.m., Lai Mohammed, ACN Publicity Secretary, with phone number 08034301111, also called Tunji Ijaiya.
At 12:46p.m. on the same day of the judgement, Yusuf Ali (SAN), lead counsel to Fayemi, also called Tunji Ijaya and they spoke for 78 seconds.
At 1:08pm, Mohammed also called Tunji Ijaya while Yusuf Alli again called Ijaiya at 1:20pm.
Titus Ashaolu again sent a text message to Ijaya at 1:35pm and subsequently called at 1:40pm. Philip Oyinloye, the Chairman of the ACN in Kwara State, called Ijaya, also on the day of the judgement at 2:08 pm. Curiously at 16:45pm, Justice Isa Ayo Salami now called Ijaya and a day after the judgement, Fayemi sent a text to Ijaya.
“That as of the time that the President constituted a panel which included himself to deliberate on the Ekiti Appeal, he was aware of the pendency of the affidavit which had earlier been sent to the National Judicial Council, being a member of the National Judicial Council.
“That as at the same time, the issue of whether Senator Bola Ahmed Tinubu the alter/ego and leader of the Action Congress of Nigeria, is a friend of the President of the Court of Appeal, remained unresolved before the National Judicial Council.”
He submitted that Justice Salami contravened the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, more particularly rules 1(1) and 2 (a) and rule 2 (A) (1) 2 (B) (4) and 2 (1) (1) thereof.
Also making cross references to entries on the logs he provided and the ones provided by the office of the National Security Adviser (NSA), the Police and State Security Services, Oni noted: “In relation to Tel No 08095402000, Exhibit 12 (13) which is an Etisalat line at page 2 of the logs received from the NSA in relation to this number on the 8th Row, there is entry of a call made by Tel No: 08034004887 belonging to Justice Salami at 9:32:52 on the 11th of October, 2010 for 191 seconds.
“In Exhibit 4 which is Justice Salami’s call log, at page 37 thereof, this same entry is recorded in the 5th to the last row as a call made by 08034004887 (Justice Salami’s number) to 0809540200 with a call duration of 192 seconds.
“On the 10th of November, 2010, tel No:-08056000287 Exhibit 12 (7) sent a text message to Justice Salami’s telephone number at 09:25. This call log forms part of the exhibit 12 series which the service provider, GLO, also sent to the panel by the office of the NSA. This entry in exhibit 12 (7) tallies with the entry of page 42 row 19 of Justice Salami’s call logs exhibit 4 “
Again in exhibit 5 which is the log of the number belonging to Tunji Ijaya at page 81, row 14th, on 20th October, 2010 at 15:13:52 hrs, a call was made to 08023071844 (Exhibit 12 (6) Cross referencing the above with Exhibit 12 (6) series) received from the office of the NSA with Airtel number 08023071844, at page 47, row 64 on the same date and time above mentioned, an entry of a call from 08034010700 (Tunji Ijaiya).”
*Here is the full text of Segun Oni’s final address to the Special Investigation Panel at the National Judicial Council Complex, Abuja, against Justices Isa Ayo Salami, Clara Bata Ogunbiyi, Olu Ariwoola, Chima Centus Nweze and Adamu Jauro.
The Judicial powers of the federation of Nigeria is by the provision of Section 6 of the Constitution of the Federal Republic of Nigeria vested in the Courts established under the Constitution or as may be created as subordinates to the superior Courts of record by statutes.
Section 237 of the 1999 Constitution created the Court of Appeal and made provisions as to the qualification of its Justices and its President.
Justices appointed to sit or preside over Courts are subject to a Code of Conduct expected of their exalted office as the custodians of the Nation’s Judiciary and Justice.
The Petitioner has through his Petitions to the National Judicial Council raised grievous allegations of breach of the rules of the Code of Conduct with consequential grievous Injustice to the Petitioner.
The parties have laid their respective Cases before this panel and thepanel has graciously and patiently heard this matter.
The Petitioner, Chief Olusegun Adebayo Oni, was the Governor of Ekiti State. The election of the Petitioner was challenged by the Action Congress of Nigeria (ACN) whose national leader is Senator Bola Ahmed Tinubu.
The ACN’s Petition was heard and dismissed by the Governorship and Legislative House Election Petitions Tribunal sitting in Ado-Ekiti, Ekiti State, after taking evidence and listening to the witness.
The ACN Appealed against the Judgment of the Tribunal to the Election Appeal Tribunal sitting in Ilorin, Kwara State. The President of the Court of Appeal, Hon. Justice Ayo Salami, the 1st Respondent, constituted a panel of Justices which he presided over with the 2nd to 5th Respondents as members.
The panel subsequently heard and determined the Appeal of the ACN and its candidate and unanimously allowed same, leading to the removal of the Petitioner from office as Governor of Ekiti State.
Salient facts subsequently emerged from the substance of the Judgment of the Court of Appeal and the Conduct of the Justices before, during and after the hearing of this Appeal which was unknown to the Petitioner until after Judgement had been delivered, and that formed the basis of three Petitions written by the Petitioner to the NJC.
These are: (a) Petition dated 13th January, 2011 (b) Petition dated 14th February, 2011 (c) Petition dated 29th March, 2011.
A. PETITION DATED 13TH JANUARY, 2011
This was the first Petition written by the Petitioner and contains allegations that the Petitioners having been corrupted or induced, proceeded to give a Judgement which not only lacked Legal or Jurisprudential depth but was contrary to all known and established Legal principles.
The position of the Petitioner, in this Petition, is not that Justices cannot or should be wrong. Far from it. The Petitioner’s position is that because of corruption or nepotism their Lordships deliberately stood the settled positions of the law on its head just to ensure his removal from office in favour of the candidate of Senator Bola Tinubu-led Action Congress of Nigeria.
The Petition was detailed and incisive on the issues raised hereunder. It was submitted to the NJC.
B. PETITION DATED 14TH FEBRUARY 2011
This is the second Petition written by the Petitioner as a corollary to the first Petition. The allegation of the Petitioner against their Lordships of corruption and/or nepotism was substantiated through evidence of telephone communications between agents, linkmen, counsel and leaders of the Action Congress of Nigeria party to the Respondents herein, particularly the President of the Court of Appeal and one Mr.Tunji Ijaya, a friend of the Hon President of the Court of Appeal.
Two call logs with respect to this allegation relating to telephone number 08034004887 belonging to the Honourable President of the Court of Appeal and 08034010700 belonging to Mr. Tunji Ijaiya were attached and duly submitted to the NJC.
It is instructive to mention that the accusation against Mr Ijaya is that he acted as an agent in this scheme to pervert the course of Justice.
C. PETITION DATED 29TH MARCH 2011 AND SUBMITTED TO THE NJC ON 7TH APRIL 2011 AT 2: 45pm
This is the third and last Petition in which the Petitioner made further and most incisive allegations corroborating the corruption and/or nepotism of their Lordships, and particularly the 1st Respondent. This petition was acknowledged as received by one Adamu of the office of the Chairman of the National Judicial Council. A copy of the proof of delivery is attached hereto.
The Petitioner’s case in this third Petition which further strengthens the earlier Petition and allegations of corruption is that while the President of the Court of Appeal and the 1st Respondent constituted the panel to hear the Appeal of the ACN against the Petitioner and proceeded to actually preside over the panel and deliver the lead Judgment therein, there was pending against him (Justice Salami) before the NJC a Petition written by the Sokoto State Government to which was attached an affidavit by Senator Dahiru Umaru, the erstwhile Chairman of the Senate Committee on Judiciary wherein it was alleged that the President of the Court of Appeal is a close and intimate friend of Senator Bola Tinubu, the leader of the ACN, and that the said Bola Ahmed Tinubu solicited for the PCA’s ‘smooth sailing’ at his screening by the Senate, prior to his confirmation as President of the Court of Appeal. The gravamen of the Petition is that these facts were not known to the Petitioner before the Appeal was heard, but they were known to the 1st Respondent (Hon Justice Salami); In which event but for corruption and nepotism, the 1st Respondent ought to have distanced himself from the Appeal until he is absolved by the NJC in relation to the Petitions. The 1st Respondent, notwithstanding the Petition which he was aware of, personally presided over this matter, delivered the lead Judgment and quite naturally upturned the Judgment of the lower Tribunal and gave Judgment for the ACN. The substratum of the three inter-related Petitions seeks to establish not any criminality or Criminal Conduct against the Respondent, but misconduct by virtue of corruption and/or nepotism of the Justices to deliberately hear the Appeal and give Judgment against the Petitioner, contrary to well established principles of natural Justice and fair hearing.
THE RESPONSE TO THE PETITION
The Respondents jointly submitted two responses dated 28th February, 2011 and 3rd March, 2011 respectively. The gravamen of their response to the Petition with respect is an attempt to affirm the Judgement of the Justices who sat to deliver Judgment in the Ekiti Governorship Appeal on different grounds and parameters not contained in the judgement, however, we do abide by the ruling of the panel on 12th April 2011, where the panel directed that the contents of the Judgement should not be an issue for investigation by the panel. The response to the second Petition, with respect is shallow evasive and with respect borne out of lack of understanding of the term ‘corruption’ and an ingenious attempt to refrain from positivelydenying or affirming the allegations contained therein.
FACTS NOT IN DISPUTE
1. That the Petitioner herein and Dr. Kayode Fayemi of the Action Congress of Nigeria, amongst others, contested election into the office of the Governor of Ekiti State on 14th April, 2007.
2. At the conclusion of the election, Engr. Segun Oni was declared winner of the election.
3. Being dissatisfied, the Action Congress of Nigeria and its candidate, filed a Petition before the Ekiti State Election Petition Tribunal, which petition was subsequently dismissed.
4. Again being dissatisfied with the dismissal of their Petition, the Action Congress of Nigeria, appealed the decision, whereof the Election Appeal Tribunal sitting at Ilorin, on 28th February, 2009, allowed the Appeal in part, set aside the election of the Petitioner herein, and ordered supplementary election in some wards making up Ekiti State Constituency.
5. That the re-run elections were held on 25th April, 2009 and 5th May, 2009 respectively, and at the conclusion of the election, the Petitioner was again declared winner of the election, and again sworn-in as Governor of Ekiti State on 6th May, 2009.
6. Again being dissatisfied, the Action Congress of Nigeria and its candidate, petitioned the Election Tribunal in Ekiti State, which upheld the election of the Petitioner herein by its Judgement of 5th May,2010.
7. The Action Congress of Nigeria, again, being dissatisfied with the Judgement, appealed against same to the Election Appeal Tribunal sitting in Ilorin by notice of Appeal dated 24th May, 2010.8. That prior to that date, the Government of Sokoto State had already petitioned, the National Judicial Council, in relation to alleged misconduct of the President of the Court of Appeal, inimical, to the proper administration of Justice.
9. Attached to that petition was the sworn affidavit of the Chairman of the Senate Committee on Judiciary, Senator, Umaru Dahiru, where he averred on Oath that Senator Bola Ahmed Tinubu, a Chieftain of the ACN, contacted him and sought his intervention in ensuring that the yet to be held screening of the Hon. Justice Salami, prior to his confirmation as President of the Court of Appeal went on without incident.
10. That as of the time that the President Constituted a panel which included himself to deliberate on the Ekiti Appeal, he was aware of the pendency of the affidavit which had earlier been sent to the National Judicial Council, being a member of the National Judicial Council.
11. That as at the same time, the issue of whether Senator Bola Ahmed Tinubu the alter/ego and leader of the Action Congress of Nigeria is a friend of the President of the Court of Appeal remained unresolved before the National Judicial Council.
12. Notwithstanding, the Hon. President still went ahead to, not only constitute a panel to hear an Appeal by the Action Congress of Nigeria, he presided over same, and went ahead to deliver Judgment.
13. That calls were made to the President of the Court of Appeal and his friend and agent, Mr Tunji Ijaiya, by counsel and chieftains of ACN.
14. That the alleged makers of the calls to the President and particularly, Tunji Ijaiya, are alive well and available.15. The existence of these communications between Hon Justice Salami, Tunji Ijaiya and ACN chieftains and Lawyers were not denied.
ISSUES FOR DETERMINATION
In the Petitioner’s view, only one issue arises for determination to wit: Whether from the Petitions and the Responses thereto, the totality of evidence placed before the panel, the President of the Court of Appeal could not have been said to have been acted in contravention of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria, more particularly rules 1 (1) and 2(a) and rule 2 (A) (1) 2 (B) (4) and 2 (1) (1) thereof.
My Lords, in proof of his Petition, the Petitioner testified on his behalf and called one witness Mr. Deolu Oyinlola. He also tendered the call logs of Tel No: 08034004887 and 08034010700 belonging to Hon Justice Salami and Mr. Tunji Ijaya respectively which were admitted as Exhibits 4 and 5; Newspaper Publications as follows: This Day of January 25, 2011, Exhibit B Tribune of 17th February 2011 Exhibit 1 and The Nation of 4th, 6th and 14th October 2010, Exhibits 3a, 3b and 3d and the affidavits of Senator Umaru Dahiru and Yahaya Mahmood. Esq earlier tendered at the hearing of the Sokoto Petition.
The foundation of his evidence is predicated on the fact that incidents of the leakage of the Judgement delivered by the President of the Court of Appeal, had become apparent when certain newspapers credited the publicity secretary of the ACN, Lai Mohammed, as saying that the PDP, which sponsored the Petitioner, was planning to use the “SOKOTO OPTION” to arrest the Judgement, which indicates positively that the ACN had foreknowledge that the judgement was already in their favour. See Exhibits 3a-d.
His evidence was also to the effect that the elaborate way and manner in which the Tribunal declared winner was sworn-in and the fanfare associated with the swearing of Dr. Fayemi less than 12 hours after the Judgement was delivered was indicative of the fact that the ACN and its candidate had foreknowledge of the Judgement.
His evidence, in relation to this issue, remained unchallenged, and uncontroverted in any material particular. In fact, the panel also entertained another petition in relation to the Sokoto Gubernatorial Appeal, whereof it is also alleged that the Judgement of the Court in that matter had also leaked. In relation to the allegations of bias, and impartiality, he testified that Senator Bola Tinubu is the alter-ego of the ACN and is a known friend of the President of the Court of Appeal. In support of this assertion, the Petitioner tendered an affidavit deposed to by the Chairman of the Senate Committee on Judiciary, Senator Umaru Dahiru, admitted in evidence wherein the distinguished Senator averred that many people, including Senator Bola Ahmed Tinubu, impressed upon him to ensure that Hon. Justice Salami had a “smooth” screening by the Senate, prior to his confirmation as the President of the Court of Appeal.
His evidence was that he only became aware of the relationship between Senator Tinubu and the extent of the said relationship when the affidavit was published in the Tribune Newspapers of 17th February, 2011, Exhibit and as such formed the basis of his 3rd Petition to the NJC.
Cross examination of the Petitioner did not, in any way, shake his testimony. The cross examination of this witness by the Respondents counsel Rickey Tarfa (SAN) was more hypothetical and speculative rather than confronting the witness with facts relative to the issues at hand.
The 2nd Petitioner’s witness was Mr. Adeolu Oyinlola, who testified before the Panel that he was commissioned to analyse the call logs Exhibits 4, 5, 12 and 15. He gave in details his educational qualifications and his experience as an IT practitioner and that he produced an analysis of call logs of Justice Salami and Mr Ijaya which was tendered as Exhibit 18.Again, cross examination of the witness was to his other business interest AND not in any way related to the issues germane to the Petition, which is why leaders of the ACN and their Solicitors were in contact with Hon Justice Salami, his bosom friend Mr. Tunji Ijaya, prior to, on the day of Judgement and immediately thereafter.
The panel, pursuant to an invitation at the request of the Petitioner, invited the office of the National Security Adviser (NSA), to bring copies of the report of their investigation on this matter before the panel.
A Director from that office came before the panel and testified that, he received call logs from the mobile service provider on a USB drive which he forwarded to the Secretary of the Panel, which was tendered as EXHIBIT 14(b), and he subsequently identified the flash drive and its contents as being the logs from the mobile service providers to wit: MTN, ETISALAT, GLO and AIRTEL.
In response, the Hon. Justice Salami, called one witness Mr Sheriff Usman, the head of ICT in the Court of Appeal Abuja, and who works directly for the President of the Court of Appeal. His testimony was to the effect that EXHIBITS 4 & 5 were not genuine, as well as the logs brought by the office of the National Security Adviser produced from the flash drive were not genuine. He further demonstrated what, in his opinion, could have happened to the effect that the calls could be ‘Spoofed’. He did not say that Justice Salami and or Tunji Ijaiya’s numbers were in fact spoofed and neither did he emphatically say all the calls on the logs were spoofed either.
In demonstrating ‘Spoofing,’ he tried the number of a member of the Legal team of the Respondents, and a staff of the National Judicial Council. However, when he was provided an MTN number by the Legal team of Osun State PDP and Chief Segun Oni, he woefully failed to perform the feat, but succeeded in sending a text message to Mr. Olatawura’sAirtel number. It is also important to mention that the spoofing of one particular number took him 25 minutes and 27 seconds.
When asked how come a feat he allegedly performed on an MTN number belonging to a member of Justice Salami’s legal team could not be performed on an MTN number provided by the petitioners, he answered “MTN has problems with network in Abuja for the past 12 hours”. When an Airtel number was given to him, the phone did not ring.
Under cross examination, he admitted that he does not work for MTN and that MTN never told him that Justice Salami’s line was hacked and or spoofed. He was made to read Exhibit 19, which contains a statement credited to MTN, that its telecommunication system is not susceptible to manipulation of any kind.
He also admitted not working for the office of the National Security Adviser, and not knowing how that department operates.
When asked by the female member of the panel that the spoofing exercise did not actually confirm conversation, his response was that he had software which he did not bring that could perform that feat.
Kabiru Turaki Tanimu (SAN) was also called. This witness, in his examination-in-chief, denied being part of the Legal team of the petitioner at the appeal tribunal. He had also decamped from the PDP and, in fact, was the ACN gubernatorial candidate of his state. He admitted sending text messages to the President of the Court of Appeal as reflected in the call logs tendered by the Petitioner.
At the request of the Respondent, the panel called one Mr Odusola, a senior manager with MTN. His evidence was that the call logs Exhibits 4 & 5 appear unusual due to the size of the paper they were on, as CDR’s as he calls them, are only printed on A4 papers. He give a vivid description of how call logs are released, and in relation to the authenticity of Exhibits 4 & 5, he affirmed that, he could only make a comment on them if he saw the letter from MTN releasing the logs to the requesting authority. He confirmed under cross examination that Hacking and or Spoofing is impossible on the MTN platform, in that behalf confirming the contents of Exhibit 19 tendered by the Respondents and that A4 paper can be blown into A3, the size of Exhibits 4 & 5.
It is submitted, with respect, that the petitions against the Respondents are premised on three grounds, viz:(a) Manifestly unsustainable judgement against the Petitioner.(b) Communication between the justices, counsel, agent and chieftains of the ACN.(c) Disregard of the Sokoto petition pending before the NJC/likelihood of bias based on the contents of the affidavit of Senator Umaru Dahiru.
MANIFESTLY UNSUSTAINABLE JUDGEMENT AGAINST THE PETITIONER
This issue with respect is abandoned based on the directives given by the panel in the course of hearing the petition.
COMMUNICATION BETWEEN THE RESPONDENT(S), COUNSEL, AGENTS ANDCHIEFTAINS OF THE ACN
My Lords, it is instructive to bring to Your Lordships attention that nowhere did the President of the Court of Appeal categorically deny making or receiving calls from lawyers to the ACN and to Mr Tunji Ijaya, Justice Salami’s agent and friend in their response. In fact, their response, with respect, is evasive, sloppy and incoherent and cannot be said to be a precise and concrete denial of the allegations in any material particular.
Justice Salami did not deny Tunji Ijaiya being his friend. However, his contention that the petitioner establishes the agency relationship we submit with respect, can be inferred from the multitude of communications between both of them as evidence in Exhibits 4 and 5, and call and text messages from counsel and chieftains of political parties who had cases in the Appeal Tribunal. We refer Your Lordships to Pg 21-24, of their response. Nowhere in their response did they say that there lines were hacked or spoofed as demonstrated by Sheriff Usman, who curiously works for the PCA as head of ICT at the Court of Appeal.
It is an elementary principle of practice that pleadings is the bedrock of adjudication and matters not pleaded go to no issue and should be expunged from the records. We are very much aware of the fact that this panel is a fact-finding one, which should not be tainted with ‘Legalese’. However, we must not lose sight of the fact that the decisions to be cited are products of logic and good reasoning and would be great assistance in understanding the issues raised.
The petition and the response thereto we respectfully submit, constitute pleadings in this circumstances.
In OHIARI V AKABEZE (1992) 2 NWLR, PT. 221, 1 @30 C-E, Nnaemeka-Agu JSC, held:“It is now settled, that such evidence in a genealogical table which has not been pleaded with particularity, ought not to be admitted. See TOTAL NIGERIA LTD V NWAKO (1978) 5 SC 1, PP 12, 13, AND16. IGBODIM V OBIANKE (1976) 10 SC 1, 79 P 180, ADEREMI V ADEDIRE (1996) NWLR 398 P 401, all were strongly not pleaded, so they went to no issue. See ANEMEKA EMEGIOKWUTE V JAMES OKADIGBO (1973) 4 SC 113 @117, ATANDA v AJANI (1989) 3 NWLR PT. 116, 511.
Also were a party in its pleadings avers one set of fact, but in evidence testifies on another set of facts. The facts pleaded are entirely without proof and the evidence as facts not pleaded ought to be disregarded as going to no issue. (Underlining supplied).
At page 21 of the Respondents response, the Justices of the Court of Appeal, say as follows: “We are at a loss as to what the so-called logs are intended to achieve, we have perused them over and over again. We cannot locate anything incriminating in the logs worse still, there is nothing in them indicating any incriminating conversations between us and any of the named parties in the Appeal....................................................................................................................................It is thus the responsibility of Oni to show the contents of the conversations that is to show details of the telephone conversations”.
In essence, My Lords, the President of the Court of Appeal never denied the calls made by him or received by him, or Tunji Ijaya, his friend, by ACN chieftains, a day before the Ekiti Judgement, and on the date of Ekiti Judgement, by lawyers to ACN, and their chieftains, on the day of Judgement in Ekiti State.Having said that they, (the justices) cannot locate anything incriminating in the said logs, or what their communication establishes, they immediately somersaulted, and now said in paragraph 2, of page 21 thus; “Even, the authenticity of the said logs is doubtful, as the source is neither indicated, nor are they certified”.
They again, in paragraph 3 at pg 21 of their responses, shifted gear, by saying: “Furthermore, the said logs, even if they are authentic, (which we doubt) offend, S. 37, of the Constitution of the Federal Republic of Nigeria, which provides that “the privacy of citizens, their homes, correspondence, telephone conversations, and telegraphic communications is highly guaranteed, and protected”
Again not satisfied, they went further to say curiously: “He contended that they were in communication with ACN lawyers; he listed Lateef Fagbemi SAN; Abdullahi Ibrahim SAN; Emeka Ngige SAN;Yusuf Ali SAN e.t.c, what a bare faced tissue of lies! From our search, Lateef Fagbemi SAN, has always represented the PDP for example in Oshiomole v. Osunbor (Benin); Amaechi v. INEC (Port Harcourt);Agagu v. Mimiko (Ondo), to the best of our knowledge, they said Senior Lawyers never represented the (ACN) in the Ekiti case. Mallam Yusuf Ali, SAN, even led a team of Senior Lawyers who represented the PDP in Aregbesola v. Oyinlola (Osun) although he appeared in the Ekiti case for the (ACN). How then can one classify Ali, SAN as an (ACN) lawyer? What is more, Emeka Ngige SAN, and Rickey Tarfa SAN, who never appeared for any of the parties in both the Ekiti and Osun cases, were, equally paraded as ACN lawyers. We have perused the law reports; we cannot locate the appearance of the respected Abdullahi Ibrahim SAN, erstwhile member of the NJC and former Attorney-General and Minister of Justice in any of the said cases.”
They went further again, at paragraph 2 page 22 to again say: “There is nothing in the call logs, to show the nature of communications, ethical or unethical. How then did Oni come to the conclusion, that their communication were directed at the invidious communications (sic), with respect, we are of the full view that it is for him to expose the nature of the communications to lead them to the case”.
Surprisingly, in answer to the Osun PDP Petition at page 12 thereof, Justice Salami’s response took another turn and he admitted and quoted a telephone number of one Lateef Yusuf as contained in the Petitions of Osun and Ekiti, and explained his relation with the said Yusuf Alli. In paragraph 2 thereof, his story took another dimension when he said:”It is, however, important to note that MTN call logs are susceptible to manipulation, thus it is not unusual for fraudsters to hack into the telephone numbers of unsuspecting subscribers and use them in furtherance of their criminal activities. It is through the process that a subscriber could even be confronted with SMS messages sent through his own Telephone number. I had in the past received messages from unknown persons who hacked into my telephone number, and sent messages to me through my said number”
Wonderful prose, nice afterthought, however, the Hon. President refused to give evidence of this before the panel, and neither did he say if such a criminal activity of such magnitude, considering his standing in the society as the President of the Court of Appeal was reported to the Police/Security agencies, or his service provider MTN.
In fact, there is no evidence to say or show his line or their lines were hacked to call Tunji Ijaya, and or the lawyers and ACN Chieftains that called Ijaya had their numbers hacked. We pray to ask again: Will you talk for more than 10 seconds to someone you do not know? The specific allegations and details relating to those calling him and Tunji Ijaiya were reiterated by Chief Segun Oni, when he gave evidence before the Panel.
Tunji Ijaya, who is alleged to be at the centre of the invidious communications, was not called by the President to refute this weighty allegation, neither did the lawyers mentioned, four of whom appeared for the Hon Justices at various stages during the hearing of the Petition, give evidence to refute these allegations. Rather, he left same to his ICT man to say spoofing was possible, but NEVER saying Justice Salami or Ijaiya’s lines were cloned, spoofed and or hacked.
It is settled law that the best evidence is direct evidence, failure of Justice Salami, Mr Ijaya and the Chieftains of the ACN and their lawyers with respect to positively deny this assertions is fatal to any defence now being manufactured.
In OGUNEZE V THE STATE (1997) 8 NWLR PT 518, 566 at 588, the Court of Appeal per Nsofor JCA held thus: “The best evidence rule demands that only the best evidence be given subject of course to the exceptions if there be. See s.93 and 94 of the Evidence Act subnomen primary and secondary evidence.
The evidence by PW 4 (Vincent Mekoba) on oath is a primary evidence. It is the best evidence pure and simple, nothing more and nothing less. His extra-judicial statement (exhibit b) is not. In the hands of any person including the counsel to the accused, who sought to and tendered it as evidence, it was (or is) hearsay evidence.”
We submit that on the above premise, the President of the Court of Appeal had tacitly admitted the calls as alleged in the Petition. The next issue is, are the calls appropriate in the circumstances? The requisite evidence is as contained in EXHIBITS 4, 5 and 15.
Before deliberating on this, we wish to bring to your Lordships attention, the provisions of Rules of the Code of Conduct for Judicial Officers of the Federal Republic of Nigeria: “In performance of his duties, a Judicial Officer should observe the following rules:
RULE 1 (2) (a): A judicial officer must avoid social relationships that are improper or give rise to an appearance of impropriety, that cast doubt on the judicial officer’s ability to decide cases impartially, or that bring disrepute to the judiciary.
RULE 2 (A) (1): A Judicial officer should be true and faithful to the Constitution and the law, uphold the course of justice by abiding with the provisions of the Constitution and the law and should acquire and maintain professional competence.
RULE 2 (A) (9): A Judicial Officer shall be bound by professional secrecy with regard to his deliberations and to confidential information acquired in the course of his duties other than in public proceedings.
RULE 2 (C) (1): A Judicial Officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where........
RULE 3: A Judicial Officer should regulate his Extra Judicial Activities to minimise the risk of conflict with his judicial duties.
EXPLANATIONS (iii): Violation of any of the rules contained in this Code shall Constitute Judicial misconduct or misbehaviour and may entail disciplinary action.”
My Lords, the call logs or CDR’s as described by Mr. Odusola of MTN are Exhibits 4 and 5 and 15 series. Exhibits 4 and 5 are attachments to the second petition of Engr. Segun Oni, while exhibit 15 series was printed from a flash drive (memory stick) sent directly to the Director of Administration, NJC, by the office of the National Security Adviser (NSA) from which exhibit 12 series was printed. The office of the Inspector General of Police and the State Security Service also supplied logs directly to the panel. We, once again, reiterate that nowhere in the response of Hon Justice Salami and other Respondents did they, at any point, emphatically and in accordance with established principles of pleadings, deny receiving or making those calls.
To further buttress this point at page 21 of their response, the learned justice at paragraph 1, thereof, said:” We are at a loss as to what the so-called call logs were intended to achieve, we have perused them over and over again, we cannot locate anything incriminating in the logs. Worse still, there is nothing in them indicating any incriminating communication between us and any of the parties of the Appeal”
They went further to say in the same paragraph: “It is thus the responsibility of Oni to show the content of the communication, i.e., to show details of the subjects of the telephone conversation and their relevance to this conversation”
My lords, the sum total of the response of the learned justices of the Court of Appeal, with respect, cannot, in any way, be said to be a denial of the allegation of communication as contained in the second Petition of Engr. Segun Oni.
This can be confirmed by their comment in the 3rd paragraph of page 21 “Furthermore, the said logs even if they are authentic (which we doubt)offend the provision of S.37 of Constitution of the Federal Republicof Nigeria which provides that the privacy of citizen, their homes,telegraphic communication is hereby guaranteed and protected.”
Notwithstanding the above , we shall endeavour to prove to your Lordships the authenticity of these logs, by making cross references to entries on the logs provided by the office of the National Security Adviser, the Police and State Security Services where necessary:-In relation to Tel No: 08095402000, Exhibit 12 (13)which is an Etisalat line at page 2 of the logs received from the NSA in relation to this number on the 8th Row, there is entry of a call made by TelNo: 08034004887 belonging to Justice Salami at 9:32:52 on the 11th of October, 2010 for 191 seconds.
In Exhibit 4 which is Justice Salami’s call log, at page 37 thereof, this same entry is recorded in the 5th to the last row as a call made by 08034004887 (Justice Salami’s number) to 0809540200 with a call duration of 192 seconds. On the 10th of November 2010, Tel No:-08056000287 Exhibit 12 (7) sent a text message to Justice Salami’s telephone number at 09:25. This call log forms part of the exhibit 12 series however, from the service provider GLO also sent to the panel by the office of the NSA.
This entry in exhibit 12 (7) tallies with the entry of page 42 row 19 of Justice Salami’s call logs exhibit 4. Again in exhibit 5 which is the log of the number belonging to Mr. Tunji Ijaya at page 81, row 14th, on 20th October, 2010 at 15:13:52 hours, a call was made to 08023071844 Exhibit 12 (6) Cross referencing the above with Exhibit 12(6) series received from the office of the NSA with Airtel number 08023071844, at page 47, row 64 on the same date and time above mentioned is an entry of a call from 08034010700 (Tunji Ijaiya).
It is rather unfortunate that MTN, who is the service provider to Mr. Tunji Ijaya and the Hon. Justice Isa Salami, deliberately chose to withhold call logs from October to November 2010, in relation to the numbers mentioned in the petitions, which are all MTN numbers, including that of Justice Salami. It is instructive to note that this witness (MTN employee) came at the invitation of Hon. Justice Salami having refused to appear at the panel when invited at the request of the petitioner, channelled through the Secretary of the panel by Exhibit 11, and as such, it can only be deduced that their non production of the appropriate and relevant call logs would have been detrimental to the interest of the Respondents jointly and severally. It is also on record that MTN had, by its own letter EXHIBIT 15(D), said that there system was faulty and they could only release logs from February to April 2011.
However part of the logs released to the office of the NSA by MTN exhibit 12(10) and (11) contained December logs which tallies in every material particular with exhibits 4 and 5. Again evidence of collusion. It is important to say that Hon Justice Salami was present all through the sitting of the panel, and refused to give evidence of either receiving or not receiving these calls, and neither did any of the respected senior counsels, four of whom acted for him during the sitting of the panel, nor the chieftains of the ACN appeared before the panel. More importantly, the only counsel he called Kabiru Tanimu (SAN), in fact, confirmed communicating with the President on a regular basis. Justice Salami PCA in the case of FAYEMI v Oni (2010) N.W.L.R (PT1222) 326 @391 held thus @ paragraph D-E: “The answer in my opinion is in the negative, and therefore calls for the invocation of S.149 (d) of the Evidence Act. In other words the materials were purposefully withheld because their production would have been detrimental to the interest of the Respondent.”
We urge this panel to so hold. Notwithstanding the above, we believe that we have established that the call logs Exhibit 4&5 themselves are authentic when cross referenced with the entries in the Exhibit 12 series as highlighted above.
One common denominator in Exhibit 4 and 5 is the frequency of calls between the Tel No: 08034010700 belonging Tunji Ijaiya and Tel No 08034004887 belonging to Justice Salami and nowhere has Justice Salami ever denied calling Ijaya and vice versa.
It then becomes rather curious when between 11th of October and the15th of October, 2010, Mr Tunji Ijaiya and Justice Salami exchanged 11text message and voice calls between themselves. At 9:22am, on 14th October, 2010, Dr. Kayode Fayemi (08055556655), who was the 1st Appellant in the Ekiti Appeal matter called Mr Tunji Ijaiya; (See page 15, row 66 on the logs belonging to Mr Tunji Ijaiya, Exhibit 5). On the 15th of October 2010 being the day of the judgement in the Ekiti matter. Mr Titus Ashaolu, who was one of the counsels to Dr. Kayode Fayemi in the Appeal Court matter presided over by Justice Salami, was the first to send an SMS to Tunji Ijaya at 9:37am.
At11:08am, Mr Lai Mohammed, ACN Publicity Secretary with Tel No:08034301111 also called Tunji Ijaiya. At 12:46pm on the same day of the judgement, Yusuf Olaolu Ali (SAN), lead counsel to Dr Fayemi in the matter presided over by Justice Salami, also called Tunji Ijaya and they spoke for 78 seconds. At 1:08pm, Mohammed Raufu Lai, who is the Publicity Secretary of the ACN, also called Tunji Ijaya at 1:20pm on the same day, Yusuf Olaolu Alli again called Ijaya. Titus Ashaolu again sent a sms to Ijaya at 1:35pm and subsequently called at 1:40p.m.
Philip Oyinloye, the Chairman of the ACN in Kwara State, called Mr. Ijaya also on the date of the Judgement at 2:08pm. Curiously at 16:45pm, Justice Isa Ayo Salami now called Ijaya. What a coincidence.
Pg 16 of exhibit 5.
A day after the Judgment, Dr. Kayode Fayemi sent a text to Ijaya which happened to be the day he was being sworn in as Governor. My Lords, we submit, that the frequency of telephone communication between lawyers of ACN and the parties to the proceedings only permits of one inference, which in the eye of the reasonable man is synonymous with perverting the course of Justice, and establishes beyond doubt the existence of a relationship between Justice Salami, Ijaya and leaders and lawyers of the ACN that permits of only one interpretation, the likelihood of bias.
It is instructive to note, that no leader or counsel to the PDP is established to have called Mr Ijaya. My lords, Rule 1, 2, (A) of the Code of Conduct for Judicial Officers state:”In performance of his duties, a Judicial Officer should observe the following rules:
RULE 1 (2) (a): A judicial officer must avoid social relationships that are improper or give rise to an appearance of impropriety, that cast doubt on the judicial officer’s ability to decide cases impartially, or that bring disrepute to the judiciary. We submit with respect, that these telephone calls are not only improper but they have cast a serious doubt on Justice Salami’s ability to have decided the Appeal impartially and in breach of the code of conduct for judicial officers. My Lords further to the foregoing, it stands to reason and commonsense and in accordance with the Oath of office of Justice Salami as enunciated in rules 2 (c) (1) of the Code of Conduct for Judicial Officers which states that: A judicial officer should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where........
Hon Justice Salami should have disqualified himself from constituting the panel that heard the Appeal, participating therein, talk less of delivering the lead Judgment.
In the case of METROPOLITAN PROPERTIES COMPANY (FGC) LTD v LANNON &ORS (1968) 3 All ER 304 @ 310 Lord Denning MR held thus: (a) “In considering whether there was a real likelihood of bias, the Court does not look at the mind of the chairman of the Tribunal whoever it may be, who sits in judicial capacity. It does not look to see if there was real likelihood that he would, or did, in fact favour one side at the expense of the other the Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right-minded persons would think that, in the circumstance, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand: (see R.V. SUNDERLAND JUSTICE (1901) 2 K.B357 AT PAGE 373 per VaughanWilliams, L.J.)
Nevertheless, there must appear to be a real likelihood of bias surmise or conjecture is not enough: see R v CARMBORNE JUSTICEEX PARTE BIRD (1954)2 All E.R. 850 (1955)1 Q.B. 41 at paragraph.48-51;R v. NAILSWOTH LISCENSING JUSTICE EXPARTE BIRDS (1953) 2 ALL E.R 652.
There must be circumstances from which a reasonable man would think it likely or probable that the Justice or Chairman as the Case maybe, would or did, favour one side unfairly at expense of other. The Court will not enquire whether of the other. The Court will not enquire whether he did in fact, favour one side unfairly. Suffice that reasonable people might think he did, the reason is plain enough. Justice must be rooted in confidence, and confidence is destroyed when right minded people go away thinking: “The judge is biased” Contrary to the misconceived submission of the President of the Court of Appeal that the Petitioner should prove the contents of the communications in the call logs, we submit that where the conduct of a Judge or a Tribunal is impugned, one is not concerned with whether an adjudicator was in fact biased and afotiori, proof of such allegations beyond reasonable doubt is not the yardstick for establishing same. In Abiola V FRN (1998) 1 HRLRA 221 @ page 248, Uwais Jsc held thus at paragraph F-G’”The Courts have laid down many times, where the conduct of a Judge or Tribunal is impugned, that they are not concerned with the question whether an adjudicator was in fact biased.
The reason for this attitude of the Court is that it would be unseemly for the Court to purport to pry into the state of mind of any Judicial officer-see 47 law quarterly reviews at paragraph 407-408, where even the evidence adduced has pointed strongly to the inference that an adjudicator was in fact biased, the Courts have confined themselves to determining whether likelihood of bias has been established. The question is always answered by inference drawn from the circumstances.
The test of a real likelihood of bias which the Court have applied is based on the reasonable man who is fully appraised of the facts involved.”
DISREGARD OF THE SOKOTO PETITION PENDING BEFORE THE NATIONAL JUDICIAL COUNCIL
It is the undisputed and uncontroverted evidence of the Petitioner that Senator Bola Ahmed Tinubu, the leader and alter-ego of ACN, has been established to be a close and intimate friend of the President of the Court of Appeal. This is further established by the Chairman of the Senate Committee on Judiciary Senator Umaru Dahiru, who had affirmed, under Oath, that senator Bola Ahmed Tinubu lobbied him, on behalf of Justice Salami, his friend, to confirm his appointment as President of the Court of Appeal.
The evidence of the Petitioner is that he did not become aware of this relationship until 17th February, 2011 when an affidavit deposed to by Senator Dahiru in that behalf which was deposed to as far back as March 2010, was forwarded to the NJC as part of a Petition by the Sokoto State Government in relation to the conduct of Justice Salami in that matter was published in the Tribune Newspapers Exhibit 1, hence he could not have objected to the constitution of the panel through his lawyers at the hearing before the Court of Appeal Ilorin.
Justice Salami has never denied his relationship with Tinubu and neither has Tinubu denied his relationship with Hon Justice Salami. No doubt, Justice Salami would have become aware of this Petition being a member of the NJC well before he constituted, sat on the panel, deliberated and gave Judgment on a matter in which the ACN had a stake as the second Appellant. It is submitted that beyond the issue of the relationship between Justice Salami and Tinubu, in so far as the Petition filed before the NJC from Sokoto State remained pending and by extension the issue of the affinity between Hon. Justice Salami and Tinubu remain unresolved,it behoves on His Lordship to steer clear of any matter pertaining to Tinubu or his Party.
My lords, we submit that in accordance with Rule 2(c) (1) of the Code of Conduct for Judicial Officers, the President of the Court of Appeal, Justice Isa Ayo Salami, ought to have disqualified himself from the matter.
He had the next most senior Justice who could have constituted a panel to hear and determine the appeal without raising any likelihood of bias. His failure to do this is inexcusable, and in flagrant breach of the Code of Conduct for Judicial officers. Once again, we reiterate that the question of likelihood of bias can be established by inference drawn from the circumstances and not by proof beyond reasonable doubt. (See the case of ABIOLA v FRN (SUPRA).
My lords in concluding, we wish to draw your Lordship attention to S.36 (i) of the Constitution:”In the determination of his civil rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence andimpartiality.”
It is clear from the wordings of this section that independence and impartiality are part of the attributes of fair hearing. In ABIOLA V FRN (SUPRA), Uwais JSC at page 248 stated as follows: “The requirement of impartiality as intended to prohibit a person from deciding a matter in which he has pecuniary or any kind of interest, such other interest many arise from his personal relationship with the parties to the case or may be inferred from his conduct or utterances during the hearing of the matter.
Hence, the remark per Lord Hewart CJ in R V SUSSEX JUSTICES EXPARTE MC CARTHEY(1924) 1 KB 256 @ pay 259 that it is”Not merely of some importance but of fundamental importance that justice should not only be done but manifestly and undoubtedly be seen to have been done”
ON THE ALLEGATION OF CORRUPTION
It is submitted, my Lords, that the breach of Code of Conduct, with respect to the learned Justices of the Court of Appeal, even though may have some criminal imputations, is not criminal in nature. It is, therefore, our contention, based on the authorities above cited that the proposition that the Petitioners should prove the criminal imputation beyond reasonable doubt is with respect preposterous. Against the background of the Petition and the evidence adduced in its support, we respectfully submitted that the Petition is not alleging basically the commission of a crime against their Lordships, the Respondents, but grievous misconduct amounting to a breach of their code of conduct.
The use words “Corruption and Fraud”, in the Petition dated 14th February, 2011, are for the purpose of this Petition and proceeding and not intended to input Criminality.
If, after these proceedings, the law enforcement agents, to whom the statement was commended, hold a contrary view, they will only be performing their statutory duty.
From the petitions and preponderance of evidence adduced by the petitioner in support of the petition, there is objectively no doubt that the Petitioner has not only levelled grievous allegations against their Lordships, the Respondents before this panel but established same. It is common knowledge that this issue has generated a lot of interest from all fragments of the society within and outside the shores of this country and provides a veritable opportunity for the NJC through this panel to demonstrate that Justices, no matter how highly placed, are not above the law and are susceptible to sanctions in appropriate,circumstances.
The office of a judge is second only to that of God, in appropriate circumstances they even determine the fate of a human being to live or die. It is as a result that their conduct, even though being humans, must be seen to be above board and untainted in the conduct of their duty as the last hope of the common man.
As the Petitioner said before this panel: “May that day not come when a Judge will have to sit on his own divorce case to punish his errant wife”.
We urge your Lordships to again restore the confidence of the common man in the judiciary, by recommending disciplinary measures against those who have erred in the performance of their duties and conduct as judicial officers and as requested in the 1st petition, refer any issue(s) of criminality to the appropriate security agencies for investigation. (Daily Compass)