Okon Abang: A Profile in Crisis

In this discourse, Davidson Iriekpen deconstructs Justice Okon Abang of the Federal High Court, wondering how long the leadership of the judiciary will watch him sully the revered institution

It is longer news that the Court of Appeal, last Thursday, upturned the judgment of Justice Okon Abang of the Federal High Court, Abuja, which sacked Governor Okezie Ikpeazu of Abia State from office in July. What is however news was the way and manner the justices of the appellate court descended heavily on the judge, totally embarrassing and ridiculing him in the eyes of the public for debasing justice and bringing the judiciary to grave disrepute and ridicule.

Abang had on June 27, 2016, ordered Ikpeazu to vacate his seat as governor for allegedly falsifying tax documents. He further ordered the Independent National Electoral Commission (INEC) to issue a certificate of return to Mr. Sampson Ogah, who came second in the Peoples Democratic Party (PDP) primary election held in December 2014, but did not participate in the general election.

However, in a unanimous judgment, which lasted about six hours, the five justices of the court held that the trial judge was not only perverse and biased in his judgment, but that he turned the law upside down. First, the court held that Justice Abang erred in law and occasioned a miscarriage of justice against the governor, when he refused to give fair hearing and that he pre-judged the matter, when he touched on the substantive issues at the preliminary stage without hearing the appellant.

Justice Ogunwumiju, who delivered the lead judgment in one of the appeals, held that Abang “committed grave violence against one of the pillars of justice” relating to fair hearing. She further held that the judge raped democracy in his order that the Independent National Electoral Commission (INEC) should issue a certificate of return to Ogah, when there was no evidence of forgery or criminality against the appellant.

According to the court, the judgment given by Abang was grossly erroneous, because it was based on inadequacy of tax receipts that could not be visited on the appellant (Ikpeazu).

Justice Ogunwumiju further held: “After reading through the judgment several times, I was amazed at how the trial judge arrived at his conclusion of perjury against the appellant when there was no evidence of forgery. His findings are ridiculous. The judge must have sat in his chambers, unilaterally assessed and computed the taxes of the appellant and came to the conclusion that he did not pay the required taxes.

“Courts are not allowed to speculate, as the trial judge did in the instant case. In one breadth, the trial judge spoke from the two sides of his mouth, when he claimed that he based his findings on supply of false information and in another breadth, ‎he came to the conclusion that the appellant committed perjury even when there was no allegation of forgery and no allegation that he did not pay tax.”

Justice Ogunwumiju also held that ‎the trial judge turned the head of the law upside down in his conclusion that it was the appellant that should bear the burden of proof of an allegation made by Ogah.

Again, she noted: “With respect, we disagree with him because it is the person that makes the allegation of falsehood that must prove it. The court erred when he imported the phrase, ‘as and when due’ into the PDP 2014 guidelines. The judge would not have imported the phrase into his findings if a copy of the PDP guidelines had been attached to the originating summons. The judge violated the party’s guidelines.”

Recall that after delivering his judgment, Abang again refused to hands off the case. He assumed jurisdiction on the motion for stay of execution, insisting that he had jurisdiction to hear a motion for stay of execution of his earlier judgment delivered on June 27, even after the appeals against the judgments had been entered at the Appeal Court.

For this, Justice Philomena Ekpe, who read the lead judgment, also tongue-lashed him, saying he was wrong to have assumed jurisdiction on a motion for stay of execution of his earlier judgment delivered on June 27, even after the appeals against the judgments had been entered.

She said the judge lacked jurisdiction to interpret the provisions of the Court of Appeal being the rules of a superior court, adding also that what the judge of a lower court ought to have done in line with the time honoured doctrine of “stari decisis” was to have transferred the motion to the Court of Appeal for determination.

“The lower court (Justice Abang) has made a complete summersault of the entire suit. Once an appeal is entered into, there is nothing left for the trial court to adjudicate upon. All the trial court was supposed to do was to transmit the record of proceedings to the appellate court. But it deliberately chose to do otherwise. This is against Order 4 Rules 10 and 11 of the Court of Appeal Rules 2011. The lower court acted ultra vires.”

To many observers, the chastisement of Abang has gone a long way to show how terribly the lower court has sunk. Not only do many of them oftentimes descend into the arena, they exhibit bias in their orders and judgments only attributable to huge financial inducement. These orders and judgments always create ill-feelings among Nigerians, who have overtime lost hope in the judiciary in the country.

Apart from the Ikpeazu judgment, Abang had in the last couple of months acquired a reputation for his controversial orders, rulings and pronouncements, which have raised eyebrows and reinforced the perception of rascality in the Nigerian judiciary. So reckless and perverse are some of his orders and judgments that many wonder why the National Judicial Council (NJC), the highest judicial organ in the country would close its eyes to the embarrassment he was causing the judiciary.

While he was sitting in Lagos, litigants and counsel had written petitions against him over the way and manner he had handled their cases. Some of the aggrieved litigants and counsel have even had cause to openly object to his orders and disparage the judiciary.

Today, many analysts strongly hold him responsible for the crises rocking the PDP. So far, he has granted a number of orders that have added to the confusion in the party, thus fuelling insinuations that he was being used by external forces to run down the PDP.

Aside the series of controversial orders he had delivered to stop the party’s national convention, Abang has also acted in a manner largely suspected to be on mission to kill the PDP by granting many orders that Ali Modu Sheriff remained the authentic national chairman of the PDP and has the authority to act and take decisions on behalf of the party against the orders of similar courts of the coordinate jurisdiction, which had asked Sheriff to stand down.
His palpable bias and habitual judicial blunder came to the fore, when he sat on appeal on a judgment delivered by a similar court of concurrent jurisdiction presided over by Justice Abdullahi Liman of the Federal High Court sitting in Port Harcourt.

Note that as a way of permanently resolving the legal crises plaguing the PDP, Justice Liman had in a judgment delivered on July 4, declared that the May 21 national convention of the party, where the Senate Ahmed Makarfi-led National Caretaker Committee was inaugurated was valid, stating that its decisions did not violate any known law or the constitution of the party.

He also affirmed that the appointment of the caretaker committee by the national convention of the PDP to oversee its affairs was legal and in line with the provisions of the party’s constitution. He therefore dismissed all grounds of defence put up by Sheriff.

Liman said Article 31 (1) of the PDP constitution vested the powers to convene a national convention on the national executive committee of the party and held that pursuant to the constitution of the party, Sheriff had no powers to unilaterally postpone the properly constituted national convention on a day all delegates had converged on Port Harcourt, the host city.

The judge described the action of Sheriff as “most unconscionable”, pointing out that the former acting national chairman participated in all the processes leading to the national convention, only to make a U-turn at the final minute after he was screened and disqualified.

The court also ruled that after Sheriff was disqualified following his screening, the only option that was left to him was to have gone to the venue of the national convention to seek the opinion of delegates whether they were prepared to go on with the convention or not.

According to him, the absence of Sheriff at the convention did not visibly affect the process as his powers were not usurped. He declared, therefore, that under Article 35 (b) of the PDP constitution, in the absence of the chairman, the deputy chairman was empowered to preside over the national convention.

He further argued that in line with Article 33 (2) of the PDP constitution, the national convention of the party is supreme and can exercise the powers to dissolve the national working committee and the national executive committee of the party.

On the issue of the abuse of court process claimed by the former national acting chairman, the court held that the plaintiffs in the case in question were not the same in the cases mentioned by the defendants, noting that the plaintiff’s suit only centred on the national convention.

Justice Liman, as a result, emphasised that there was no suit challenging the conduct of the national convention in Port Harcourt, Rivers State and that no injunction was sought to stop the convention. He noted that five days to the national convention, Sheriff had, through his counsel, Ahmed Raji (SAN), dissociated himself from one of the suits they filed via proxies.

But Abang, who has concurrent powers with Justice Liman, in his wisdom, would rather than respect the judgment, sat as superior court and sacrilegiously used interlocutory order to debase the verdict by holding that the purported convention held in Port Harcourt on May 20 was in violation of two court orders of the Lagos Division of the Federal High Court, which barred the PDP and INEC from holding the convention.

He consequently barred the Makarfi-led caretaker committee from exercising any authority or taking any decision on behalf of the PDP on account of being an illegal body.

Literally elevating his court to an Appeal Court status, Abang took a swipe at the Makarfi-led group for going to Port Harcourt to obtain a favourable judgment from a division of the Federal High Court, which is a court of co-ordinate jurisdiction to that of Lagos.

With evident judicial impunity, he reprimanded his colleague in the Port Harcourt division for recognising the Makarfi-led caretaker committee, saying it was unlawful, illegal and has no foundation in law to stand. He further held that until the orders made by the Lagos Division of the Federal High Court, which restrained the PDP from holding the convention at the time it did was set aside, anything done in contravention of the two subsisting orders would not stand.

“The Port Harcourt Division of the Federal High Court cannot make an order to neutralise the effectiveness and potency of orders of the Lagos Division of the Federal High Court,” he said.

Rather allow the parties to sort out their counsel as it’s usually the practice, Abang completely descended into the arena, when he further ruled, among others, that the lawyer hired by the Makarfi faction of the party could not represent the party and recognise the lawyer hired by the Sherriff’s faction.

He held that the letter by Senator Makarfi, appointing Ferdinand Obi (SAN) for PDP was illegal, unlawful and was set aside by the court on the grounds that Makarfi has no law to his side to appoint a lawyer for PDP or carry out any act on behalf of the party. Abang, therefore, upheld the appointment of Olagoke Fakunle (SAN), having been appointed to represent PDP by the Sheriff-led committee.

Also, some detainees of the Economic and Financial Crimes Commission (EFCC) had fingered the controversial judge as one of the to-go-to judges, who readily grants long detention orders to the commission during its investigation of high profile corruption cases.

For example, the usual practice is that when a party in case notices bias by a judge, he/she petitions the Chief Judge of the court to complain and possibly appeals that the judge be changed. While many judges have had to recuse themselves from such cases to maintain their integrity, oftentimes Abang had refused to do the same
The case in point, for example, is the corruption trial involving the former National Publicity Secretary of the PDP, Olisa Metuh. After the latter accused the judge of bias and being his classmate at the Nigerian Law School between 1987 and 1988, Abang denied him, and refused to hands off the case.

This is not the first time Abang would abuse court process. On September 22, 2014, he appointed the law firm of Olisa Agbakoba as the receiver/manager on behalf of the Asset Management Corporation of Nigeria (AMCON) over Bi-Courtney assets, including the Murtala Muhammed International Airport, Terminal 2 despite the fact that the case had been settled by the same court.

But the orders were set aside by Justice Ibrahim Buba, who held that the orders constituted abuse of court process because they were obtained by Agbakoba through concealment of material facts. However, the case found its way back to Abang’s court and promptly renewed it against all judicial tenets
When the case went to the Court of Appeal, the court upheld the ruling of Justice Buba, discharging an order empowering AMCON to take over assets of Bi-Courtney. Justice Sidi Bage of the Court of Appeal in his judgment held that the circumstances under which AMCON obtained the ex-parte ordered against Bi-Courtney Group from Abang amounted to an abuse of court.

He held that the ex-parte order was obtained in the face of subsisting order of Justice Mohammed Liman (also of the Federal High Court) delivered on November 4, 2011, restraining the federal government and its agencies from taking any steps to takeover Bi-Courtney Group. The appellate court, in its unanimous decision, held that the lower court judge did not raise any issue suo motu (on his own) as alleged by the appellant (AMCON).

Even the federal government, through the Federal Directorate of Public Publication (FDPP), has had cause to accuse Abang of working in the interest of three former bank chiefs being prosecuted by the Nigeria Deposit Insurance Commission (NDIC) for alleged N604 million fraud. The bank chiefs were the Managing Director of the defunct Integrated Microfinance Bank, Simon Ademola Akinteye; Jerry Orimobuohoma and Gabriel Adepoju, both former directors of the bank.

The accused persons were charged before Abang by the NDIC for alleged banking malpractices and fraud. They were specifically accused of granting questionable loans to themselves and other companies without collateral, fallout of which led to the failure of the bank in the operations of the bank.

However, the FDPP, in a petition to the Chief Judge (CJ) of the Federal High Court (FHC), Justice Ibrahim Auta, accused Abang of frustrating the case of the prosecution in favour of the accused persons.
The judge was specifically accused of foreclosing the case of the prosecution even when more witnesses were still intended to be presented to the court.

The FDPP, which is a directorate in the Federal Ministry of Justice, had specifically urged Justice Auta to recall the case file from Abang and re-assign the matter to another judge of the court, who will conduct the trial in an unbiased manner. The move was said to have been informed by the lack of trust by the NDIC in the ability of Abang to be fair in the conduct of the trial.

For a long time, Abang was held responsible for the crisis that also rocked the PDP in Ogun State based on the curious orders he granted in favour of a faction of the party loyal to a multi-millionaire in the state. He was also said to have been involved in granting several orders with respect to substitution of names for the primary elections of the PDP to select candidates for various elective positions for the last general election until a petition was written against him by a party.

This made the Chief Judge of the court to order that the case file be taken away from him pending the conclusion of investigation into his activities in respect of the matter. After the investigation, the chief judge withdrew the case from him, only then that the party savoured respite

For now, it is not clear for how long the NJC would allow Abang to continue to bring the judiciary to public scorn and avoidable disrepute. This growing concern, amongst the observing public, is equally founded given that the judiciary is assumed to be the last hope of everyone, whether common or highly placed persons.

But that truism may not be very correct or true to type in Abang’s court and this is why it is the opinion of many that the NJC as a body must rise up to the challenge to properly and critically look into the activities of this judge, whose profile is in self-designed crisis before his actions completely cast a poor shadow on the already unpleasant standing of the judiciary.

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Apart from the Ikpeazu judgment, Abang had in the last couple of months acquired a reputation for his controversial orders, rulings and pronouncements, which have raised eyebrows and reinforced the perception of rascality in the Nigerian judiciary. So reckless and perverse are some of his orders and judgments that many wonder why the National Judicial Council (NJC), the highest judicial organ in the country would close its eyes to the embarrassment he was causing the judiciary