Lagos — Still basking in the euphoria of the encomiums it received from most Nigerians for dismissing the application filed by Mr. Andy Uba, a former Anambra State Peoples Democratic Party (PDP) gubernatorial candidate, over the governorship the April 14, 2007 election, the judiciary is again on trial.

Expectations are keen on the possible outcome of the bail appeal filed by the former Deputy National Chairman of the PDP (South), Chief Olabode George, before the Court of Appeal in Lagos.

George, also a former Chairman of the Board of the Nigeria Ports Authority (NPA), was convicted along with five other persons by Justice Olubunmi Oyewole of an Ikeja High Court on October 26, 2009.George and others were found guilty of a 28-count charge bordering on contract fraud, disobedience to lawful order and sentenced them to 30 months imprisonment accordingly.

Few days after the conviction, the PDP chief filed an application for bail pending appeal, urging the court to release him on bail on health grounds. But Oyewole dismissed the application on the ground that he put forward insufficient materials to warrant a favourable consideration.

Consequently, George took his case to the Court of Appeal in Lagos, seeking to set aside the judgment and release him on bail pending the determination of the appeal. In the appeal filed by his lawyer, Tunji Ayanlaja (SAN), the PDP chieftain stated that the trial judge erred in law by applying the American concept of "The Responsible Corporate Officer Doctrine," which he said was unknown to the Criminal Code of Lagos State and allegedly run contrary to Section 36 of the 1999 Constitution. He added that the trial judge erred when he imposed criminal liability on the defendants as board members of NPA for the actions or inactions of members of the management of the NPA.

George further maintained that his conviction was unwarranted and could not be supported, having regard to the evidence adduced to the trial. He added that the trial judge erred in law in convicting him of the offence of conspiracy to commit the offences charged when there was no evidence before the court in proof of the ingredients of the offence of conspiracy.

Attached to the Notice of Appeal is a 10-paragraph Affidavit of Urgency, deposed to by one Adeleke Adetona, a legal practitioner in the firm of Messrs Ayanlaja, Adesanya and Co. The affidavit stated that it became urgently necessary to file the application for bail pending appeal in view of the refusal of the trial judge to grant same on exceptional circumstances. It noted that upon conviction of the appellant on October 26, 2009, the appellant was taken to Kirikiri Maximum Prison where he is now an inmate adding that if the application is not heard and determined on time, the applicant's health would be in danger while serving his jail term, which he is contesting on appeal. The affidavit further stated that if the appeal succeeds and the application is not heard at the nick of time, the applicant would have served the term of imprisonment which he said shouldn't have ordinarily been served.

No sooner was the appeal filed at the court than it generated controversy. Suspecting a desperate plot to get George out of jail, the EFCC raised an alarm over the alleged plot of a Court of Appeal judge, Justice Bode Rhodes-Vivour, to secure the bail for him. The justice was accused of accelerating George's application for a post-conviction bail.

THISDAY investigation revealed that while many convicts were languishing in detention as a result of their pending bail applications at various appellate courts across the country, within the same week that George's application was filed, it was slated for consideration by the appellate court, making the EFCC suspicious of the urgency involved.

There was another allegation that during the trial of George at the Ikeja High Court, Rhodes-Vivour had met with Justice Oyewole to solicit his assistance to set the ex-PDP chieftain free. Oyewole was said to have pretended to be playing along with the judge who in turn assured him that he would not be jailed. It was on the basis of the assurance that his supporters ordered for Aso ebi which they wore to the Ikeja Court, only to be disappointed when he was jailed. Still not satisfied after the judgment, the same Rhodes-Vivour was also alleged to have prevailed on Oyewole for a post-conviction bail for the second time and met with a brick wall again when the bail application was rejected.

The alarm raised by the anti-graft commission was quickly followed by a petition addressed to the out-going President of the Court of Appeal, Justice Umaru Abdullahi, by its counsel, Mr. Festus Keyamo, who accused Rhodes-Vivour of having "vested interest" in George's trial and bail bid. Keyamo prayed that he should "respectfully" withdraw from the panel that will hear the bail motion or in the alternative, Abdullahi should prevail on him to do so. He said the EFCC, instructed him to protest the presence of the justice in the panel of Court No. 2 that was billed to hear and determine the applications of the appellants/applicants.

The petition read in part: "My Lord, however, as officers in the temple of justice, we have a responsibility and in fact a duty, to always protect and preserve the dignity and sanctity of the judiciary. In this regard, therefore, we think it is perfectly right to bring to your attention anything that has the propensity of eroding the confidence of the public in the judiciary.

"This is because as an investigative agency, our client has information, which is already rife in the media, that Justice Rhodes-Vivour has shown a personal interest in the said matter in favour of Chief Olabode George (one of the applicants) and justice will not be served if he participates in deciding the matter," the petition said, adding: "My Lord, we have decided to make this a private complaint through this medium and not through a motion in open court so as not to further escalate this matter and to further protect the dignity of our justices. As lawyers, we are pained writing this petition on our client's instruction, especially as we have the greatest respect for the person and integrity of Hon. Justice Rhodes-Vivour who is one of the finest minds on the Bench today and we hold him and continue to hold him in the highest esteem.

"But we are mindful of what the Supreme Court said in the case of Kenon v.Tekam (2001) 14 NWLR (Pt 732) 12 at 36. My Lord, we therefore, kindly request that you do the needful by either re-assigning the case to another panel or directing Hon. Justice Rhodes-Vivour to excuse himself from the said panel to hear and determine issues involving Chief Olabode George."

Apart from Justice Rhodes-Vivour, there are other allegations of the clandestine efforts by the PDP to ensure that George is granted bail at all cost when the court resumes hearing on the case on December 1.

In Nigeria today, it is an open secret that corruption is the greatest problem confronting the nation. As a result of this perception, the issue keeps recurring during every public and private fora, academic and informal discourse. Many agree that the malaise has become endemic and eaten very deep into our national psyche. It is against this backdrop that observers, especially those who seek a better country have been calling especially on the judiciary to emulate Oyewole for daring to convict George. They have exploited the opportunity to renew the call on the judiciary to take up the gauntlet and be courageous if the fight against graft must be effectively tackled. They contended that the fight against the malaise must be tough and total adding that those leading the crusade against the cabal who indulge in this national menace must be strong- willed and absolutely committed.

Analysts have often argued that there is a general lack of efficiency and effectiveness in the Nigerian judiciary to deal with complex and time-consuming proceedings, which according to them are the norms in major corruption cases. Observers have submitted that inability to deal with corruption in the judiciary and the need to strengthen its integrity, has contributed to rising spate of corruption in the coutry.

All over the country, there are a number of persons arraigned for corrupt practices, yet with a dearth of conviction, while the judges allegedly play to the gallery and allowing themselves to be manipulated by either those arraigned or their counsel. An instance was the recent development in a Federal High Court sitting in Enugu and presided over by Justice Abdullahi Kafarati. The court allegedly made a mockery of the fight against corruption when after it had convicted a former Governor of Edo State, Chief Lucky Igbinedion, on a one-count charge of corruption, it proceeded to give him an option of a fine of a paltry sum of N3.6 million, which the former governor paid instantly and walked away a free-man. Though the light sentence was the result of a plea-bargain arrangement that the former governor entered into with the EFCC, many have described the verdict of the court as a slap on the cheek, rather than a deterrent.

The former governor who ruled Edo State between 1999 and 2007, was said to have used his relatives to siphon a whooping sum of N2.9 billion. According to the commission, the sum was looted and transferred through numerous companies, including Gava Corporation Ltd. But Kafarati in his wisdom, chose to set Igbinedion free with a paltry fine of N3.6million.

This was followed by another fatal blow dealt on the fight against corruption by Justice Ramat Mohammed of a Federal High Court in Lagos, who ruled and rejected the inadmissibility of the computer print-out of a statement of account which the EFCC had tendered before his court as an evidence in the alleged money laundering case against the former Aviation Minister, Femi Fani-Kayode.

It is against this background that the Chairman of the EFCC, Mrs. Farida Waziri, has been soliciting the assistance of the judiciary and simultaneously blaming the third arm of government and the rule of law policy of the current administration for the low success that her commission has recorded in the fight against corruption. At every forum that she attends, Waziri, who has almost lost confidence in the judges over their handling of corruption cases, has been canvassing the establishment of a separate anti-corruption court to try cases of economic and financial crimes in the country as it is usually the case in some countries like the United States and United Kingdom. According to her, it is one of the most effective strategies the commission can employ to adequately tackle graft in the country. Waziri said EFCC had duly investigated many cases, but was being hindered by delayed prosecution, saying the country should device proactive ways to bring corrupt persons to justice. She added that the country's judicial system was a major factor in determining the performance of EFCC.

According to the EFCC boss, the pandemic nature of corruption in the country, requires having a separate court for prosecution, if success must be achieved. She added that without the support of the judiciary, success in the fight against corruption would out rightly be impossible.

"The end product of prosecution is conviction. This is why we need the support and co-operation of the judiciary if we have to make a head way in the fight against corruption in Nigeria. "We have a slow judicial process. We are trying to see if we can improve the laws. The establishment of the special courts and the forfeiture of assets' laws will strengthen the fight against corruption as the forfeiture law, for instance, shifts the burden of proof from the prosecution to the owner of property who will be asked to account for how he made his money.

"The slow judicial processes that our courts are known for and the bureaucratic and legalistic bottlenecks of the judicial system of this country, do not allow us to achieve our stated goals easily. The legal process takes quite a lot of money, energy, time and deployment of personnel to get a single conviction. To speed up prosecution of our cases, the National Assembly should begin the process of creating special courts with the requisite jurisdiction bringing to book, public and private officials involved in corrupt acts. In extraordinary situations, other nations have adopted this strategy to curb a social problem confronting them. Italy used special constitutional courts to check executive lawlessness when it was a problem to their nation-building process, so did other nations establish special criminal courts for the same purposes.

"A special court for EFCC-related offences will take us away from the undue legalities that many brilliant lawyers have capitalised on to twist the hand of the courts and the commission. It is a common practice to define the success of an institution like the EFCC on the number of convictions it had. However, analysts should put into consideration the slow and windy justice system. Under the rule of law as enshrined in the Constitution, a person is presumed innocent until found guilty. If the perpetrators of corruption use the rule of law to frustrate attempts at bringing them to justice, then the state must device other appropriate methods," she advised.

Even though Rhodes-Vivour had since been withdrawn from the panel constituted to determine the bail application, many Nigerians are anxiously watching to see how the justice will handle the case.

Meanwhile, a justice advocacy group, Access to Justice, has said that the allegations of improprieties of the types made against Rhodes Vivour are disheartening and needed to be cleared in the interest of the public, whose faith in the justice system is hinged substantially on the integrity of its judiciary.

In a statement by its Executive Director, Mr. Joseph Otteh, the group noted that, prior to these allegations, Rhodes-Vivour had had an untarnished career and reputation on the Bench and no allegation of any manipulative tendency had been established against him. It called on the National Judiciary Council (NJC) to investigate the allegations, it risks leaving the public with the impression, founded or unfounded, that the judiciary is trying to cover this allegation for whatever reasons.

"Access to Justice holds Justice Rhodes-Vivour in high esteem too and acknowledges the contributions of this great jurist to the transformation of Nigeria's judiciary and the growth of Nigeria's jurisprudence. However, the allegations by the EFCC have raised some frost which would be dangerous to keep un-cleared. Although it would have been more appropriate for the EFCC to report the alleged misconduct of Justice Vivour to the National Judicial Council at the time that those observations were reached, and not wait till this time. Yet, having made its observations public, concerns about the transparency of the judicial process has been stoked. Although the EFCC merely wishes Justice Rhodes-Vivour's recusal from the case, the facts and allegations upon which this request is predicated have deep, wide and profound implications for public confidence in the judiciary and must be so perceived.

"This will do no good to the judiciary, neither will it serve Justice Rhodes Vivour's interest now to clear his well-cultivated reputation. Leaving this 'hanging' will certainly keep those clouds hanging over a respected and honourable Justice of the Appeal Court. However, not to allow these allegations hang inordinately and ominously over everyone affected by them, and without any prospect that they can otherwise be forthrightly resolved, we call on either the EFCC or Hon. Justice Rhodes Vivour himself to refer the complaint to the NJC immediately and directly for investigation.

"Access to Justice welcomes Hon. Justice Rhodes Vivour's recusal from the case. That certainly is the option that best serves the overriding public interest in the impartiality of the Judiciary and the transparency of the judicial function and we salute the courage and temperance that has informed this decision."