Joe Agi Versus Ben Ayade: The Current Situation by Eval Asikong

By Eval Asikong

After my interaction with a Senior Advocate of Nigeria (SAN) who called me to discuss about the issue and after my interactions with other reputable Ministers in the Temple of Justice, I have to make this summary with discussions from those interactive engagements…

On the hearing at the Supreme Court that took place on the 27th of September, 2016, what happened was that the PDP lawyer, without due consultation with the National Executives, verbally, withdrew the party’s brief of argument in favour of the respondent (the Governor). What is the meaning and implication of this in the case? Many people have called me to ask. Well, a Brief of argument simply means a written legal document presented during a legal adversarial, arguing why a plaintif or appellant, a defendant or a respondent should prevail in a particular case.

The fact remains that there has been concurrent findings of facts at two lower courts (the Federal High Court and the Court of Appeal) already which constitutes record of proceedings to be relied upon by the Supreme Court for Judgement and which the Supreme Court cannot just dismiss except it is later shown to be perverse. Therefore, the action of the PDP lawyer is already belated and besides, withdrawing a brief of argument does not alter the facts already recorded in the proceedings and the law backing it.

It was exactly the same situation in a case between Otu Igirigi versus Okon Offiong Bassey in an unreported judgement of Appeal Court with Number CA/C/174/2009 decided by the Court of Appeal, Calabar Judicial Division. The lead judgement was delivered by Justice Uzor Ndukwe Anyangwu (JCA) on the 5th day of April, 2013 . In the case, the respondent neither filed any brief nor even appeared before the Court yet, the Court of Appeal, per Ndukwe, irrespective of the intelligent brief presented by the appellant, still held that the appeal was unmeritorious and, therefore, dismissed it and went ahead to affirm the lower court decision. Facts and law did not support the appellant’s intelligent brief.

It is not in all cases that a respondent’s failure to file a brief of argument will result in the judgement being ruled in favour of the appellant. In the above cited case, facts and law did not support the intelligent brief of the appellant and so, the appellant lost the case.

Most Proceedings in litigations are based on facts, law and precedence which determine final judgement and the Supreme Court will always review already existing facts and law. Based on this, the Supreme Court will rely on the record of proceedings from the High Court and Appeal Court, as well as their judgements.

Reputable ministers in the Temple of Justice have argued that one cannot approbate and reprobate at the same time. From the Federal High Court to the Court of Appeal, the submission has always been that an ordinary error in a nomination form which is naturally borne out of human inadvertence cannot amount to falsification of age affidavit, as that particular affidavit, which has been in use for more than twenty years, was used when the respondent contested for Senate. It is based on this that the People’s Democratic Party (PDP) at state level provided 11 persons as witnesses to the fact that they sponsored the Governor as Senator based on his age declaration and it is the same Decalaration they used in sponsoring him as Governor and there is nothing false about the affidavit.

The only issue was that an error was noticed in his party nomination form which was endorsed, but no error in his affidavit. And in law, where there are two errors, the first one prevails. The law is very clear on this. However, the respondent’s brief of argument, which constitutes an inclusive component of the proceedings record so far, which can hardly be changed, is flourishing in a remarkable verbiage which confounds the credibility of the legal suit initiated by the appellant against the respondent. And these brief of argument were provided by the People’s Democratic Party at the National level, INEC and Ben himself.

Therefore, what ever the PDP lawyer said in the last hearing at the Supreme Court, which he did without consultation and knowledge of the Party’s National Executive, is oral and cannot be relied upon by the Supreme Court because there is no brief to that effect. In law, a brief of argument must be based on record of proceedings. The Supreme Court, going by law of evidence, will follow existing facts and records. Therefore, cannever entertain any sudden sumersault which could ridicule the legal reputation of the apex court and results in the miscarriage of justice.

A source in the party has revealed that the Party’s Executives and the Board have expressed disapproval to what the lawyer went and did in the court. While mischief makers are revelling over a storm in a tea cup, they will be shocked at what the National Leadership of the Party will do at the next hearing.

However, if such withdrawal of brief was made by the PDP lawyer at either the Federal High Court or Appeal Court, it could have been of grave consequence to the respondent (the Governor). The question is, you have filed a brief of argument from the Federal High court which you vigoriously defended in the Appeal court. Why the sudden withrawal? The answer is that the Supreme Court is not a place where caricatures against the Nigerian Legal system are entertained. For now, the supreme court cannever accept any sudden summersault. The reputation of the apex court cannever be ridiculed.

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