Tribute to Ambassador George Oguntade at 80
There really is not much to add to the cascading accolades already showered on the celebrant as well as the avalanche of encomiums. Indeed, it is tempting to draw the curtain with the sound of the gavel from the Court Clerk: “Case Adjourned”.
Justice has been served by what has been entered in the records of the Court (both the Supreme Court of Nigeria and the Court of St. James’s, United Kingdom). “Justice Oguntade is undoubtedly one of the sharpest legal minds that ever sat on the Higher Bench in Nigeria. In his service on the Bench, he made his mark in the advancement of the nation’s legal system, even at great risk to his person.”
However, in order to forestall those who may raise the issue of “insufficient evidence,” permit me to add: “He was born in Ijebu-Ode in the old Western Nigeria on March 10, 1940. He attended Ijebu-Ode Grammar School between 1953 and 1958. Thereafter he proceeded to Holborn College of Law [University of London], UK (1961- 1964); and the Nigerian Law School, Lagos in 1965. He was called to the Nigerian Bar on January 15, 1966. He was in private legal practice for 14 years and was appointed a Judge of the Lagos State High Court in 1980, and then the Court of Appeal in 1988, and in May 19, 2004, he was elevated to the highest court of the land, Supreme Court of Nigeria where he served meritoriously till March 10, 2010 having attained the mandatory retirement age of 70 years. His many strategic postings included Chairman, Lagos State Armed Robbery & Firearms Tribunal, Justice of the Court of Appeal, Enugu, Ibadan, and Presiding Justice, Court of Appeal in Jos, Lagos, and Federal Capital Territory, Abuja. He was finally elevated to be Justice of the Supreme Court of Nigeria in 2004.”I am tempted to invite the Court to take judicial notice of the fact that on the very same day (January 15, 1966) when George Adesola Oguntade Esq. (as he was then known) was called to the Nigerian Bar, the military protested vigorously by staging Nigeria’s first coup d’état!! It was the first time we heard the chilling opening address: “Fellow countrymen …..” accompanied by martial music.
It is the dexterity and maturity with which Ambassador Oguntade has comported himself that qualifies him as a fast learner. Since he assumed duty as the High Commissioner of the Federal Republic of Nigeria to The United Kingdom (and the Court of St. James’s), he has taken to heart the best attributes of a diplomat as espoused by late President of the United States of America, Benjamin Franklin (1706 to 1790). “……….sleepless tact, unmovable calmness and a patience that no folly, no provocation, no blunders may shake.” He has been rewarded with tremendous respect, trust and mutual confidence by President Muhammadu Buhari and the Diplomatic Community in Britain. His opinion, advice and guidance are very much in demand – especially by the heads of the fifty-three other African High Commissions/Embassies.
I stand to be corrected, but by my reckoning Ambassador Oguntade has had the good fortune of hosting President Muhammadu Buhari GCFR, Commander-InChief Armed Forces of Nigeria in his “jurisdiction” on numerous occasions (240 non-consecutive days and nights in the last five years mostly on health grounds, private matters and investment summits) far beyond any of his predecessors or any other Nigerian High Commission/Embassy in the world. For those who are intrigued by the miraculous survival/recovery of President Buhari from his lifethreatening health challenges, Ambassador Oguntade is an obvious suspect!! On CNN, President Buhari publicly declared: “I have never been so sick in my life.” One of the Ambassador’s most closely guarded secrets (also covered by Diplomatic Immunity !!) is that there is a deep spiritual dimension to his character, soul and spirit.
Here is the evidence according to Court records:”Between 1992 and 1999, he was the Chancellor of the Church of Nigeria (Anglican Communion). He remained Chancellor, Anglican Diocese of Lagos till May 2017.” It is no secret that Justice Oguntade has established very deep friendship with the head of the Anglican Church, The Most Revd. Justin Welby, the Archbishop of Canterbury President Buhari, The Most Revd. Welby and High Commissioner Oguntade have metamorphosed into a powerful triumvirate. Permit me to digress.
Archbishop Welby was previously an active player in the oil and gas sector when he worked as a very senior executive at Elf Aquitaine which had substantial interests in Nigeria. I believe that the Managing Director of ELF at the time was late Jacques Halfon who remains one of the most amazing human beings I have ever come across. KPMG (of which I was Chief Executive and Chairman) were the auditors.
However, my admiration for Jacques Halfon went beyond professional matters or the acknowledgement of his intimidating intellect. He was very humble and truly loved Nigeria and Nigerians. Even when his wife was dying of cancer he refused to quit his job. Instead, he would commute on a weekly basis to Paris where his wife was being treated every Friday evening and be back at his desk in Lagos on Monday morning. Sadly, he drowned at the beach in Egypt while trying to save his adopted son (a Nigerian toddler) from drowning. Justin Welby’s path as an oil executive may have crossed that of Major-General Muhammadu Buhari who served as Nigeria’s Federal Commissioner for Petroleum and Natural Resources from 1976 to 1978.
Justin Welby quit the darkness of the oil and gas sector to pursue a more spiritually fulfilling life in the clergy. His Epiphany (the manifestation and revelation of Christ to him) obliged him to forsake the pursuit of all material gains, be they fossil or non-fossil. Ambassador Oguntade’s golfing friends refer to him as a Holy (“holey”) man!! Golfers have an irresistible urge to spend hours chasing a white ball into a tiny little hole. It is a temptation they are unable to resist. They are unlike the late Prime Minister of Britain Winston Churchill (1874 to 1965) who when asked if he ever felt the urge to exercise, replied:
“What I do is lie in the bath with a large cigar in my mouth and much larger glass of brandy in my hand. Then, I wait for the urge to go away.” I do not wish to dwell too much on Justice Oguntade’s spiritual antecedents. He has never claimed to be a faith healer, prosperity evangelist or miracle worker. But how else can you explain that in a twinkle of an eye (actually eighty years if you rely on a Chartered Accountant to do the counting), he has been an outstanding lawyer and jurist as well as being a formidable pillar of the Anglican
Church. Added to the galaxy of monumental achievements is that he is currently the Lisa of Lagos (a Title previously held by my father, late Chief J.K. Randle); and Chancellor of Lagos State University, (a position which I previously held). What an amazing coincidence!! I have been warned not to make any reference to his life-long membership of the “The Penthouse” and what goes on behind closed doors, otherwise I may be charged for contempt of Court.
Therefore, I shall confine myself to his gregarious disposition which has earned him friendship and trust from all over Nigeria (and beyond) – cutting across ethnicity, religion, gender and age – in a joint enterprise with his darling wife, Her Excellency Modupeola Oguntade.
The fear of being charged with “failing to tell the truth and nothing but the truth) compels me to divulge that in 2007 when candidate, Major-General Muhammadu Buhari challenged the declaration of Alhaji Umaru Musa Yar’Adua as the winner of the presidential election at the Supreme Court, the Court which was presided over by Justice I. L. Kutigi ruled in favour of Alhaji Yar’Adua. However, three judges dissented. They were Justice Aloma Mukhtar; Justice Walter Samuel Onnoghen; and Justice George Adesola Oguntade who took the following position: “Oguntade, JSC:– On 21 April 2007, the Presidential Election was conducted in Nigeria to elect a successor to Chief Olusegun Obasanjo, whose term of office as President of the Federal Republic of Nigeria was to expire on 29 May 2007. The appellant, General Muhammadu Buhari was the candidate of the All Nigeria People’s Party (hereinafter referred to as “the ANPP”) in the said election. The fifth and sixth respondents in this appeal Alhaji Umar Musa Yar’Adua and Dr Jonathan Goodluck were the Presidential and VicePresidential candidates respectively of the People’s Democratic Party (hereinafter referred to as “the PDP”) in the said election. There was a host of other candidates numbering 22. It is not necessary for the purpose of this judgment to set out the names of the other candidates. The elections were conducted as required under the Constitution of Nigeria, 1999 by the first respondent Independent National Electoral Commission (hereinafter referred to as “INEC”) under the Chairmanship of the second respondent, Professor Maurice Iwu. At the conclusion of the election, the fifth respondent Alhaji Umaru Musa Yar’Adua was declared the winner withb 24,784,227 votes. The appellant was the runner-up with 6,607,407 votes.
The appellant was dissatisfied with the declaration of the fifth respondent as the winner of the election. On 22 May 2007, he filed a Petition against the declaration made by INEC. He challenged the declaration on a number of grounds.
The position of this Court, as decided in Unilag v Aigoro (supra) is that the power to make Practice Directions is one to be inferred from the grant of the power to make Rules. If paragraph 50 of the First Schedule of the Electoral Act makes the Rules of the Federal High Court applicable in election matters, it is to be inferred that the President of the Court of Appeal who sets up elections tribunals and heads the Court of Appeal has the power to ensure that the Rules of Court made applicable to election tribunals are well regulated and adapted to meet the peculiar problems arising from election petitions. There is in particular the special necessity to ensure that the election petitions are expeditiously disposed of with minimal problems.
The petitioner/appellant has not raised any issue as to how the exercise by the President of the Court of Appeal to make Practice Directions has adversely affected him or hindered his constitutional right to a fair hearing of his petition. I therefore do not see the need to explore the matter further. It is sufficient to say that the President of the Court of Appeal, in the exercise of his power to make Practice Directions may not give any directions which derogates from the validity and effect of any other Law or the Constitution of Nigeria. In the final conclusion, this appeal succeeds. I hold the view that the failure of the first and second respondents to comply with section 45(2) of the Electoral Act which is that ballot papers be serialised and bound in booklets for the purpose of the Presidential elections held on 21 April 2007, is so grave that the said elections ought to be nullified. In coming to this conclusion, I have advised myself fully that all courts in Nigeria have the duty to enforce our laws dealing with elections in order to ensure transparency, credibility and fairness in all elections in Nigeria. I annul the Presidential elections in Nigeria held on 21 April 2007 and order that fresh elections be conducted within 90 days from today. I make no order as to costs.”
Leading judgment by Niki Tobi, JSC; with I.L. Kutigi Chief Justice, A.I. KatsinaAlu, D. Musdapher, JJSC concurring; W.S.N. Onnoghen, A.M. Mukhtar, G.A. Oguntade, JJSC dissenting
- Burden of proof The burden of proof is not static. It fluctuates between the parties. The burden of first proving the existence of a fact lies on the party against whom the judgment of the court could be given if no evidence were produced on either side. In other words, the onus probandi is on the party who would fail if no evidence is given in the case. Thereafter, the second burden goes to the adverse party. In the instant case, the burden of proving non-compliance with the Electoral Act lay with the appellant. Per Tobi, JSC at 171.
- Effect of conducting an election with invalid ballot papers Section 45(2) of the Electoral Act 2006 had not been complied with. A valid election cannot be conducted without valid ballot papers. Section 67 of the Electoral Act provided that ballot papers that did not comply with the requirements of the Act cannot be used in any election. Per Kutigi, CJN at 261.
- Further burden to prove substantiality of non-compliance with Electoral Act The appellants then had to prove that such non-compliance with the Electoral Act substantially affected the result of the election. The respondents could then satisfy the court that non-compliance did not affect the outcome. Per Kutigi, CJN at 261. If a petitioner proves non-compliance with the provisions of the Electoral Act, he is only entitled to succeed if the court is satisfied that such noncompliance substantially affected the result of the election. Per Kutigi, CJN at 261; Tobi, JSC at 171; Katsina-Alu, JSC at 265; Musdapher, JSC at 268.
- Non-compliance with the Act, insufficient to invalidate election The appellant had failed to prove that non-compliance with the provisions of the Electoral Act had substantially affected the result of the election. Buhari v Obasanjo (2005) 13 NWLR (Part 900) 487 approved and followed. Non-compliance with the Electoral Act, without more, was not sufficient to invalidate the election. Per Kutigi, CJN at 261; Per Tobi JSC at 171.
- Jurisdiction of the court on the propriety of serialisation of ballot papers There was no basis for the lower court to have found that the propriety and correctness of the serialisation of the ballot papers had affected the outcome of the election. The Court lacked the competence or jurisdiction to make such a finding. Per Kutigi CJN at 261.
- Right of the president of Court of Appeal to make Practice Directions The President of the Court of Appeal has the power to make Practice Directions under the Federal High Court (Civil Procedure) Rules for the purpose of regulating the practice and procedure of the Election Tribunals. Per Tobi, JSC at 171.
- Limits of Practice Directions Although the president of the Court of Appeal had the power to make Practice Directions, such Practice Directions had to be within the confines of the law. The witness depositions in compliance with the Practice Directions were incompetent as they offended the provisions of section 90(b) and (c) of the Evidence Act. Per Tobi, JSC at 171.
- Constitutional provisions prevail over Practice Directions If there is a conflict between the Constitution and Practice Directions, the former shall prevail. So too, if there is a conflict between an enabling statute and Practice Directions. Per Tobi, JSC at 171.
- Inadmissible evidence cannot be cured by consent It did not matter that inadmissible evidence was admitted by consent of the parties. The affidavits did not meet the requirements of the law and were, therefore, inadmissible. Per Tobi, JSC 171; Musdapher, JSC at 268.
- Probative value of documents tendered under Practice Direction The basic aim of tendering documents in bulk was to ensure the speedy hearing of election petitions . . . But that did not ipso facto permit the court to attach probative value to documents that lacked such value . . . As the documents failed the test, the Court of Appeal was right in expunging them. It cannot be said that the Court of Appeal did not evaluate the evidence. Per Tobi, JSC at 171.
- Effect of court disregarding evidence If the court does not make use of evidence of a witness, the evidence will be regarded as dead and moribund in the determination of the live issues. As the Court of Appeal did not place any probative value on the evidence, the evidence is irrelevant. Per Tobi, JSC at 171.
- Power of court to test findings of Commission of Inquiry The Court had the jurisdiction under section 239(1) of the Constitution to inquire into the validity of the report of the Commission of Inquiry (Exhibit EP2/34) purporting to disqualify the fourth and fifth respondents on grounds of fraud and embezzlement. Such exhibit was invalid and irrelevant. The purported finding, therefore, did not disqualify the fourth respondent from contesting the election. Per Kutigi, CJN at 261; Per Tobi JSC at 171.
- Meaning of criminal conviction An indictment involves an allegation or commission of a crime which necessitates the drafting of a charge. That is the essence of section 137(1)(I) of the Constitution. There is nothing in the findings of the Commission of
Inquiry set up by the Governor of Abia State, to suggest that the fourth and fifth respondents were specifically found guilty of embezzlement or fraud, and so Exhibit EP2/34 did not articulate or vindicate section 137(1)(i) of the Constitution as it is clearly on its own. Per Tobi, JSC at 171.” It is not mere hearsay that out of the three “dissident” judges – both Justice Aloma Mukhtar (2012–2014) and Justice W.S.N. Onogen (2017 – 2019) became Chief Justice of Nigeria. We are entitled to ask: why was Justice G.A. Oguntade made the scapegoat? He is entitled to punitive damages and reparation. When Justice Oguntade hosted his Retirement/Birthday party in 2010 at City Hall, Lagos, Major-General Muhammadu Buhari travelled all the way from Abuja to felicitate with the celebrant. It is to the credit of our High Commissioner that not only did he reach the pinnacle of his chosen profession, Law, one of his children Fola Oguntade is a S.A.N. (Senior Advocate of Nigeria).
It appears that while the Court is still in session, we have time to record that what attracted then George Adesola to study Law was that after leaving secondary school in 1958, he got a job as a Court Clerk in Ibadan. It exposed him to the elegance and majesty of the legal profession which was then dominated by superstars, role models and mentors such as Justice Adetokunbo Ademola; Justice Olumuyiwa Jibowu; Justice J.I.C. Taylor; Justice Atanda FatayiWilliams; Justice Kayode Eso; Justice Adewale Thompson; Justice Nekan
Ademola as well as eminent lawyers – Chief F.R.A. Williams; Chief Remi FaniKayode; Chief Mojeed Agbaje; Olu Ayoola, Chief Abiodun Akerele and other legal luminaries. Adesola needed little persuasion to choose law as his profession. Shortly, after being appointed as High Commissioner in London, Justice Oguntade delivered a very robust and very intellectually stimulating “Judgement” on the State of Law and the Judiciary in Nigeria and the urgent need for sweeping reforms. I hope the matter is not “statute barred” or “sub judice”. Rather than add fresh coal to the fire/furnace, the High Commissioner is entitled to our good wishes on his landmark birthday plus the abundant blessings of the Almighty. As if determined to ruin the party, British newspapers (as well as “The Punch”) have today published in bold headlines on their front page the demand by the United Kingdom for £7.1 million (N3.3 billion) for unpaid congestion charges and parking tickets by the Nigeria High Commission, in London. According to Julian Assange of WikiLeaks. “The U.K. Foreign Office claims Nigeria is owing £7,063,965 in congestion fees and £47,165 in parking tickets. The figure amounts to more than three times the entire 2020 budget of the High Commission, which stands at ?1.6 billion.” We can rely on Justice George Adesola Oguntade to don his wig and gown to make a “No Case” submission. However, if the matter ends up in the Supreme Court of Nigeria, the second most high-ranking Judge (Justice Bode Rhodes-Vivour ex-St. Gregory’s College, Obalende) has put all old boys of King’s College on notice: “We are not final because we are infallible, but we are infallible only because we are final.” I am particularly delighted to see Bode in our midst. He is obviously here to remind us that being a judge of the Supreme Court does not in any way foreclose being a man with a great sense of humour. He must have learnt a thing or two from the celebrant when they both served in Lagos as judges followed by being on the highest court in the land – the Supreme Court.
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