It is a settled maxim of law that you have to hear the other party in any judicial proceedings. The Latin maxim aptly states “audi alteram partem.” It means that any and all judicial official is required in every democratic judicial institution to avoid “ex-parte” communications with any of the parties and their counsels before the court. All communications and conversations with the parties and their counsels must be made in open court room or in chambers with all the parties and/or their lawyers present. This by the way is the first thing a budding lawyer is and would be taught at the law school. Any attempt to circumvent this settled principle will taint the entire proceedings and thus rendered whatever outcomes a nullity!
This basic constitutional and administrative law principle readily sprang to mind when I read a recent exclusive news report from “The News” magazine about the improper triangular telephone conversations between counsels to the governor of Osun state, the incumbent governor, as well as some members of the Electoral Petition Tribunal in Osun State.
According to the news magazine in its story titled ‘‘The Scandal of Judges, How Osun Tribunal Was Compromised;’’ it claimed that it had obtained “authentic, incontrovertible and unimpeachable” phone logs containing conversation between the counsel to the governor, Olagunsoye Oyinlola, and his lawyer, Otunba Kunle Kalejaiye. “The truth is that we have the logs of all calls and text messages made by Kalejaiye and Justice Naron in the last six months to colleagues, friends and family members, and those made to them,” the magazine stated.
Now, let me say that I applauded the journalist who uncovered this story and wish them “more grease to their elbow” as we usually call it in Nigerian-ese. My problem however is their subsequent press statement that they have phone logs of conversation in the last months to “colleagues, friends and family member.” Even if they do, statements such as that should never have made it to the pages of news papers. We all have rights to privacy and the journalist will be “pushing it” if they think the court will protect their right to freedom of information if they start boasting of illegally obtaining phone conversation of lawyers, judges and their family members.
However, what is fair game is any “ex-parte” phone logs between the judicial officers of the tribunal and the counsel to the governors. The phone conversations between the governors and his counsel are well protected under Attorney/Client privileged relationship. The conversations between the counsel and any of the judicial officers outside the legal frameworks permitted by the tribunal rules and procedures are unfair, unjust and contrary to the rules of any democratic principles anywhere in the world.
The Constitution of the Federal Republic of Nigeria 1999 specifically provides in Section 36 subsection 1 that “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 manner as to secure its independence and impartiality. “ Emphasis mine.
Subsection 3 further provides that “the proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) shall be held in public.”
What the Osun State Electoral Petition Tribunal did in this case is a clear affront on the constitution. The fact that the tribunal chairman, Justice T. D. Naron exchanged text messages with the respondent’s counsel at an “unholy hour” of the night (some of the messages and phone conversations took place past midnights or early in the morning) brings back to memory the saga of another judge who put Nigeria democracy on trial. The story of the infamous now late Justice Ikpeme who issued an injunction to stop the declaration of June 12 election in the dead of the night!
The link between the Osun State Electoral Petition Tribunal tenuous interlocutory rulings so far and the beginning of the ex-parte phone conversation with the tribunal members is there for all to see. At this point it is clear that the tribunal is sufficiently tainted that no one could expect justice will be done in this case. It is incumbent on the National Judicial Council to vacate their ruling and dismissed the panel immediately.
But this is Nigeria after all, and the People’s Democratic Party (PDP) is still in power, so I expect nothing will happen. It is saddening indeed that the democracy I lost some of my best friends fighting for had been turned to a nightmarish experience. A macabre dance with an hydra monster populated by evil genius pretending to be democracy messiahs in “agbada.” We are indeed in big trouble and there is no end in sight.
The potential for prosperity, peace and development is clearly all over Osun State, but the “goons” in power will not let that state move beyond their shadows. Their vicious grip on the state is evident by the mayhem they have unleashed on the state since the death of Bola Ige. There is no single politician of any hue in the state that could boast of getting into office through a free and fair election. “God-father-ism” is the order of the day.
The ongoing battle at the Electoral Petition Tribunal is a side show to the eventual battle to come, which is the next gubernatorial election. The battle between ex-president’s Obasanjo’s so called “poodle,” Mr. Femi Fani-Kayode and Senator Iyiola Omisore for the governorship jostle started recently when the latter maneuvered to have the former arrested for corruption related to the multi-billion naira Airport contract, even whilst he himself subsist under the clouds of suspicions for the dastardly and callous murder of Bola Ige. The age old adage again rings true here, when the elephant’s fights, it is the grass that suffers. In this case, the grasses are the poor people of Iwaraja, Ila Orangun, Igbajo, Modakeke, Ikire, Ikeji-Arakeji, Ijemba, Ere-Ijesa, Ifewera, et al who will wake up this morning without any functional health centers, no sanitary tap water, no motor-able road network, and of course most importantly; no government to hold accountable for the provision of basic amenities of life in a 21st century Nigeria. And yet they say we have democracy. Well this democracy is on trial and the judge is on phone busy text messaging one of the counsels before him!