By Editor
•Allegation Of Conflict Of Interest Against Agabi Unsustainable – Prof Oyebode
At a time Nigerians are hailing the enactment of the Electoral Offences Commission to handle the prosecution of all cases of electoral fraud with a view to securing conviction, a High Court of Akwa Ibom State, last week granted bail to the only notable electoral fraud convict, Prof. Peter Ogban, thereby raising waves of criticisms.
Akwa Ibom State High Court 1 sitting in Ikot Ekpene, granted bail to the convict to the sum of N10 million, pending the determination of his appeal. Ogban was given a 36-month jail term and a fine of N100,000 after the court found him guilty of electoral fraud leveled against him by the Independent National Electoral Commission (INEC). In granting him bail, the judge, Pius Idiong, said that the bail conditions would include a surety in like sum, who must reside and have properties within the jurisdiction of the court.Others include the presentation of Certificate of Occupancy signed by the State Governor and two passport photographs each of the applicant and surety to the Registrar of the Court.
Justice Idiong had in line with the argument put forward by INEC in its counter affidavit opposing the bail application, held that though the applicant did not prove exceptional circumstance or unusual reason to be granted bail, the applicant may have to serve the terms of his sentence completely before the determination of his appeal. The judge still went ahead and exercised his discretion in favour of the applicant, having held that the convict didn’t prove exceptional circumstances to warrant his release from custody. INEC had taken Ogban to court on two-count charge of fraudulently tampering with the election results in favour of the All Progressives Congress (APC) party during the 2019 General Election in Akwa Ibom North West Senatorial District. The court had found Ogban, who acted as the Collation/Returning Officer during the National Assembly elections, guilty for manipulating and falsifying the scores of election results in Oruk Anam and Etim Ekpo local government areas in favour of the APC. Ogban tried to assist the APC candidate, Godswill Akpabio to win the senatorial election against the People’s Democratic Party (PDP) candidate, Senator Chris Ekpenyong. While Mr. Kanu Agabi (SAN) represented Ekpenyong in the case filed by Akpabio, challenging his victory and discrediting the votes Ogban allocated to Akpabio, the lawyer currently represented Ogban in getting the bail in question, fueling speculations about conflict of interest on the side of Agabi. Reacting to these developments, Professor of law, Akin Oyebode quoting Alphonse Karr, a French critic, said: “The more things appear to change, the more they remain the same.” According to him, the electoral process is fraught with considerable fraud such that efforts should be geared toward tackling the menace more than anything else. His words: “As we say it here, if you don’t obey the eleventh commandment, which is “though shall not be caught” you go in for it. The case of the Prof. was that he was caught in his hand in the till and he faced the penalty. “The Electoral Offences Commission that is being set up is for future offences, so it is within the discretion of the court to grant bail. It might not be endearing to right thinking members of the society, but he exercised his discretion in favour of the convict. “It is very sad and unfortunate development. There is nothing we can do about it because final pronouncement has not been made on the case. It is when the matter is decided on appeal that you can say that justice has been served. I cannot hold brief for the convict, but the story has not ended. It is going to be a long drawn process. “At the end of the day, he will pay the prize for his malfeasance. It is not a happy day for me as a lawyer. We are living in an unusual times, when the only thing certain, like a former president of the Bar, Dr. Mudiaga Odje said in 1976 that “the only thing certain about Nigeria is uncertainty itself.” We will be watching to see development on the case.” On the issue of conflict of interest, Oyebode said a lawyer is paid to defend a brief.
“So, you cannot convict him for appearing for one side in a previous matter and now switch sides. I usually told my students that lawyers never lose cases, only clients do. So, it is not something to lose sleep over the new role played by Agabi,” he said.
Former director general of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof Epiphany Azinge (SAN) said the system of our justice administration is such that enjoins lawyers to have implicit trust and confidence in the justice system regardless of whatever the thinking and inclinations may be. “I want to imagine that having weighed the circumstances, the facts and every other thing before it, the court acted in the interest of justice. It is not for us to sit down in our various homes to conjecture what is right and wrong when a judge of a court of competent jurisdiction has ruled in the exercise of his discretion. The courts are empowered to often exercise their discretion in matters before them. For the judge to have exercised his discretion rightly or wrongly in this circumstance, it is our duty to accord it the best recognition. “But our system of justice also created checks and balances as appropriate such that you have right of appeal even as it affects interlocutory matters. And that being the case, anybody who feels that the judge acted ultra vires his powers, would know that it can still be appealed. Even beyond that, anybody who imagined that the judge had not covered himself in glory, in the sense that there is abundant evidence to suggest that he acted ultra vires his powers as a judge, a petition can flow to the National Judicial Council (NJC) as the case may be,” he suggested. Azinge expressed reservations that a judge, who is conversant with what the options before the parties would be if he acts against his powers, would conveniently granted bail to Ogban, bearing in mind that it is something if escalated would even cost him his job. His words: “I want to say that I agree and accommodate the judgment of the court in this circumstance, believing that the other party should also have the liberty to exercise their own discretion whether to escalate the matter on appeal or whether they feel strongly that it is a matter that should come before the NJC. “At the end of the day, what we expect is that the system of justice administration will be of the highest level and of standards applicable anywhere and comparable to anyone, anywhere in the world.” On the issue of conflict of interest by Kanu Agabi, he differed with Prof Oyebode. According to him, where there is element of conflict of interest, counsel on the other side had a duty to have raised objection at the appropriate time. The legal scholar explained that Rules of Professional Conduct does not permit that counsel should behave in a way likely to raise eyebrows in this regard. “If they do, the counsel on the other side should have raised objection and having done so, would have prepared to pursue the case, not within the confines of the court, but at the disciplinary committee of the Bar. “We all hold Agabi in highest esteem. He is a man who believes in the morality and moral principles surrounding the ethics and etiquette of the Bar. So, without the facts, it is difficult for me to conclude that he wound have conducted himself in a way that is likely to create an idea of conflict of interest. Again nobody is beyond criticism. “If they is any reason truly that the issue of conflict of interest came to the fore, it was challenged and nothing came out of it, if INEC strongly believe that it runs contrary to the rules of professional conduct, they know what to do and I believe that it is in their own interest to do so,” he explained. On his part, human rights lawyer, Inibehe Effiong explained that bail is essentially at the discretion of the court and that a judge has the description to determine whether to admit a person to bail or not. “In this case, the professor, having been convicted was only admitted to bail, pending his appeal. A bail can be granted to a person who is convicted, while his appeal is pending before a higher court. I also find it interesting that the judge held that no special circumstance was disclosed. Usually, the law is that for bail to be granted in cases such as this, there has to be special circumstance disclosed by the applicant to justify the grant of bail. “In the wisdom of the judge, he assumed that since the term of the prison of the applicant is not long, not admitting the applicant to bail may mean that he has to serve his term even while his appeal is pending. May be, that is essentially what the court considered. For me, I will say that it is at the discretion of the court to determine whether to grant bail or not. It is a discretionary matter,” he stated. Effiong, who, however expressed surprise at the decision, said since the judge had rightly found that no special circumstance was disclosed by the convict to justify the grant of bail pending his appeal as required by law, he ought to have refused the application and urged the aggrieved party to exercise its right of appeal.