September 28th, 2016
Barrister Ifeanyi Ejiofor the defense counsel to the leader of the Indigenous People of Biafra, Mazi Nnamdi Kanu, after the court proceedings on Monday, 26th September, had an exclusive chat with CHUKWUEMEKA CHIMERUE and ANYIKWA KELECHI CYNTHIA of Biafra Writers, wherein he shed more light on the recent court trial of his client and the underlying circumstances that led to the withdrawal of the trial judge, Justice John Terhemba Tsoho.
He also expressed confidence in the new judge who will take up the trial, saying that what transpired between them and the outgoing judge will serve as a deterrent to erring judges who are bent on perpetration of judicial misconduct and biasness.
He hinted on what is contained in the petition against Justice Tsoho, adding that the warning given to erring judges against judicial recklessness by the NJC will go a long way in ensuring that judges will henceforth conduct themselves in an appropriate manner, upholding the rule of law in order to avoid sanctions from the judicial commission.
Excerpts:
Can you give us a brief rundown of what transpired in court and what informed the new development?
Thank you. As from the last adjournment, we filed an application on 20th of June, urging the court to disqualify itself from proceeding with the hearing of this application on the ground of bias. There is a manifestation of bias in conduct, so that if allowed to continue the proceedings, it is possible that something untoward will happen.
What actually informed this application was principally because of the petition we wrote against him(Justice Tsoho) to the NJC, rising from his judicial misconducts, the manner in which he delivered a ruling, refusing application to conduct a civil trial on 19th February, 2016 and then on the 7th of March, the matter was slated for hearing, he made a volte-face and vacated that order upon an oral application which is unheard of. It is not obtainable in the law of practice.
So that’s the fulcrum of our petition before the NJC and the excessive delay in availing us the rulings of the court delivered within constitutionally provided time and his conduct in the open court, the way and manner in which he attacked me in person and also some other lawyers, his remarks and swipes taken on me. So, all these are combination of factors that gave rise to the petition written against him before the NJC.
So, on that note, there’s no reason why the petition should be pending, the CJN had already acknowledged the seat of the Attorney General of the Federation and the NJC is currently investigating it. So, on the face of that development, it would only be tidy and honourable for him to disqualify himself without giving formal application because of the fact that it’s no longer his right in the circumstance to deliver justice in the matter being subject of investigation before the NJC and the judicial officers.
You saw what happened in court, there was a smart attempt on their side to find a way in refusing that application which we stood on the ground and said “No, you can’t have that petition against you, hanging on your neck and you’re proceeding with this application.” “You cannot be a judge in your own case and knowing fully well that you’re limited in confidence.”
The defendants has expressed lack of confidence in the ability of the court to dispense justice and in the circumstance, what is expected of an honourable judge to do is to pull himself out from the matter.
So that was what actually informed what transpired in court. And during the hearing, he advised himself properly and consciously relinquish himself from the matter.
Following the circumstance, the case file will be sent to the CJN for reassignment and once that is done, we’ll file a formal application before the new judge who’ll handle the bail on behalf of Nnamdi Kanu because once that file is assigned to the new judge, in law, the matter is “den oeuvre” and when a matter is starting den oeuvre, it is assumed that all that has taken place or transpired before the former judge goes with him. So the matter is starting a new, it’s starting afresh.
It is assumed that nothing has happened in the matter at all. That is the meaning of the matter starting den oeuvre. So, in that case, we’ll now be allowed to come up with another bail application which will be fortified this time around to ensure that the court works towards granting him bail. Because the grounds upon which he was refused bail amidst former bail, was not substantial.
You mentioned that the petition you filed against Justice Tsoho before the NJC has not been disposed of. What do you think was the major factor that influenced his decision to withdraw from further presiding over the case?*
The fact is that justice is a three-way traffic. It’s for the prosecution, for the state and also for the defendants.
Now, ordinarily, common sense will tell you that when a petition is hanging around your neck, you’re presiding over a matter which a defense team wrote a petition against you right? And you’ll not be seen... Because if that petition succeeds, there must be sanctions that will be judicially meted out against you, not only for you to transfer the case to another person.
It’s a petition that has to do with what is accessed to be a gross misconduct on his path and abuse of oath.
So if the NJC finds merit in that petition, there must be sanctions and that sanction does not have anything to do with whether you transfer the case file or not.
So what we’re saying is that in the circumstance under which that petition is hanging on his neck, he cannot be in a position to take further steps in that matter.
Talking about sanctions, Justice Tsoho told the honourable court that he wouldn’t continue with the case even if the NJC absolves him of wrong doings, what do think will be the reaction of the NJC after going through the investigation even after the assigning of the case to another judge?
No! What am telling you is that it’s not part of our prayer before the NJC to ask him to transfer the case file, no! Our petition was based on what we call gross misconduct, abuse of office and manifest case of bias and breach of judicial oath. Now, if the NJC finds that petition meritorious, they’ll sanction him, they’ll exercise appropriate judicial actions against him and it has nothing to do with whether he transferred the case file or not.
It is on the basis of that petition, based on certain conducts that we expressed dissatisfaction with, that we urged him to disqualify himself.
Remember that we had earlier filed a formal application to that effect. We had filed a motion formally urging him to disqualify himself, but we reminded him of the need for him to do that without necessarily listening to that motion because the defendants has already expressed their lack of confidence for him to continue with the matter. It is their constitutional right to do that.
The Prosecution counsel S.N Labaran, was saying that the motion was so voluminous for him to study and that he needed to extract the main details before the next sitting, can you shed more light on what is contained in that motion that made it so?
Don’t mind him. The motion was not in any way voluminous. I filed that motion and I don’t see it as being voluminous. You know usually they have a way of going about their prosecution because in number of occasions of several problems, I have been able to let the world know that the Prosecution team are not ready to go into the trial of Nnamdi Kanu because they have no witnesses to testify against him on the offenses they said he committed. They just want a condition whereby they continue to detain him and hold him in captivity.
Now, let me say this to you, the motion was filed on 20th of June, 2016, served to them on the same day, then it was adjourned for hearing today being the 26th of September, then the court adjourned the matter for tomorrow, Wednesday, and Thursday for hearing but it said it will hear the motion today and dispose of it before proceeding to the hearing of the main trial.
Now, they said they filed their own response since June 30th, and up till now, the rule of service is not even found in the court file, neither do they have the rule of service. And I can assure you that they didn’t serve and process, because if they did, I would have received it before now. You can see when they were asking the court to allow them serve us in court.
So, that’s their delay tactics which they usually introduce and once they introduce that their delay tactics, we’ll now take another day to go and come back. We said “No.” We told the court that this application before you ought not to have been attacked in any form by the Prosecution because if they filed a counter to it, that means they are hiding something from the court, they have skeleton in their cupboards because this is a petition challenging the competency and impartiality of the judge to continue with the proceedings.
So, it’s directed at the judge, it’s a petition attacking the integrity of the judge, not the prosecution. So if the prosecution can file a counter challenging it, that means they’re laying credence to fears already expressed by us that the court is biased.
Now that according to John Tsoho, that the case file will be handed over to a new judge, what advice do you have for him and what confidence do you have that the next judge taking over this case will dispense justice in an appropriate manner devoid of bias and partiality?*
No! The point is that of recent, the NJC has come out publicly to announce some series of measures to checkmate the excesses of judicial officers and what transpired in this case will serve as a deterrent. It will be an eye-opener and it will serve as a lesson to other people coming to take over the case because it’s a matter that is very straight-forward--- somebody was accused in the open and they want to try him in secret and I said “No!”
Two, if you look at the proof of evidence attached to the charge, it has no semblance of the offense alleged to have committed.
Three, Nnamdi Kanu has severally being granted bail by both the Magistrate and the high court; this same Federal High Court. And this bail order granted him to be released unconditionally was not obeyed.
So, coming from this foundation, any judicial officer who is taking over the matter will thread with serious caution in handling the matter. What we believe in is the justice in the case and nothing more.
Let the person(new judge) look at what is before him, handle the case, judge the case based on the facts and evidence before him, not on sentiments being expressed by persons in the higher authority.
Still talking about handing the case to another judge, will the trial start afresh, I mean, are you going to file new processes or application or would it continue from the point where Tsoho stopped?
I said it before that the matter is starting “den oeuvre”. It’s starting afresh and before this new judge that will be taking over, it’ll assume that nothing has taken place in the matter before. So that’s how we’re going to begin to file a fresh bail application before him.
So what happens to the appeals filed at the appellate courts, does that mean it will no longer be valid?
Yes, actually you’re right. Apparently, the matter before the Appeal court and the Supreme court has been affected by this development.
Recently, a coalition of human rights groups has thrown their weight behind the release of your client, Nnamdi Kanu, and has condemned the manner in which his continued detention and trial has been going for a while now. Would you say this contributed to the pulling out of Tsoho from the case?
Well, I can’t just say but you know we have to act on facts and what is before us. We can understand from what happened in court, our arguments revolved around the petition we wrote against him which in substance, is accusing him of bias and improper conduct. So the court restricted itself to those point of argument at the time he was considering the request for him to disqualify himself from continuing with the proceedings. So it’s nearly impossible that what we’re saying now has other external effects but then we appreciate the actions of the human rights groups.
There was also a heated debate and some kind of rumbling particularly from the side of the newly injected defense lawyers, can we also attribute the resignation of Tsoho from the case to the robust and active reactions of the newly constituted defense team?
(Laughs)....Well, the fact is that we're working as a team. Those people you’re talking about, I brought them in to fortify the defense. You see, when three persons are speaking at the same time, on the same tone, the message will be stronger and so they were able to express how they feel both on points of law and facts which was galvanized by our very Senior advocate (Barr. Chuks Muoma), who admonished the court, speaking from inner bar, that it’s better for him to concur and disqualify himself from the case. So the efforts of the new lawyers whom we brought in are also useful.
Now, what is the way forward, what would form your final words and expectations Sir?
We have infinite confidence in the judiciary and we’re of firm belief that certainly, the new judge the matter will be assigned to will dispense justice in this matter without fear or favour. I don’t want to go into the attitude of John Tsoho, his conduct or whatever because there’s already a petition against him pending at the NJC which is likely they’ll call me to come and give some insights if necessary, so let me not go into his judicial misconduct in the matter.
But I have the confidence that the new judge taking over this case will dispense justice without fear or favoritism. And am urging all his(Nnamdi Kanu) followers and supporters to still remain calm because we have made a serious progress in court today and that is the way forward. I can assure you by His grace that Nnamdi Kanu will be released once a new bail application is filed, he’ll be out.
And when will that be constituted?
Well, apparently within the next 72 hours, the case file will be assigned and a new judge will be picked. It doesn’t take much time. The CJ of the High Court will hand the case over to the next judge and then they’ll communicate to us on the next adjourned date for the resumption of trial. By next tomorrow, I’ll go to the Federal High Court to find out their position. Once they assign it, they’ll serve us the notice, we shall know the date for arraignment and we’ll then start afresh.
Alright, thank you Sir for keeping a time with us
You’re welcome.
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