Nigeria: Appeal Court Verdict On Kano Guber - Heads Must Roll - Prof AWA Kalu, SAN

2 December 2023

One-time Attorney-General of Abia State and respected member of the inner bar, Prof Awa Kalu, SAN, on Friday declared that the unnecessary controversy which surrounded the Court of Appeal judgment that sacked Governor Abba Yusuf of Kano State from office and threw the judiciary into a mess must not be rested without some heads rolling.

Kalu, SAN, in an interview with Saturday Vanguard, said that except the relevant authorities wield their big hammers against erring judicial officers in the instant case, the judiciary would suffer more embarrassments.

Saturday Vanguard reports that a three-member panel of the Court of Appeal had unanimously sacked Governor Abba Yusuf of Kano Statefrom office.

That was after it affirmed the decision of Kano State Governorship Tribunal, which declared Dr.NasiruGawuna of All Progressives Congress, APC, winner of the poll.

Yusuf was the candidate of the New Nigerian Peoples Party, NNPP, in the March 18 governorship poll in Kano State.

However, days after the judgment was read in the open court and the Certified True Copies of the judgment released to the public, a serious contradiction was spotted in the judgment.

Specifically, the conclusion of the judgment had favoured the governor while the ratio decidendi(reasons for the judgment) were against the governor.

But the appellate court had dismissed the contradiction spotted in the conclusion of the judgment as mere clerical error even as it declared that it stood by its decision sacking the governor.

According to its Chief Registrar, Mr. Umar Bangari, the "clerical error," did not in any way invalidate or change the unanimous conclusion of the three-member panel of justices that decided the appeal.

The Chief Registrar said the clerical error would be rectified, once parties in the matter filed a formal application to that effect.

He stressed that Order 23, Rule 4 of the Court of Appeal HandBook, empowered the court to correct any clerical error, once detected by the court or any of the parties in the matter.

He added that contrary to insinuations in the social media, the judgment of the court remains valid.

But reacting to the contradiction spotted in the judgment,Prof Kalu, SAN, had recommended that the relevant authorities must not allow the error go unpunished because of the embarrassment it caused the judiciary.

He nonetheless said that notwithstanding the grave error in the Court of Appeal judgment which created image issues for the judiciary and sparked crisis in Kano state, the judiciary, contrary to laymen's opinion, is not "finished."

He spoke on a day two other senior silks, Chief Mike Ahamba, SAN and Mr Olorundare Israel, SAN agreed with Kalu, SAN on the implication of the error spotted in the judgment on the image of the judiciary.

According to Mike Ahamba, SAN, "Let me advise those making such insinuation that the judiciary is finished know that if the judiciary is finished, we are all finished. They should all know that.

"I know that things have gone wrong in certain circumstances. It didn't start today. Buhari and I were victims in 2003 and 2007. But you don't pull down the house in which you know you are.

"If the judiciary is destroyed, the only answer is anarchy. Anarchy becomes a dangerous pastimes where the stronger rules. If there are things happening, let's correct them within the procedure provided under the law for correcting them.

"I am not saying that things have been going well. No. I have not said that, being a victim myself. But I am not prepared to allow anybody to destroy the institution because we need it. All I'm saying is that efforts must be made by those involved to correct it," he said.

Prof Kalu, SAN who agreed with Ahamba, SAN, said "I don't agree with those who are saying the judiciary is finished because it is not finished.

"It is an institution created by the constitution. As long as the constitution is alive, the judiciary will be alive. The image will clean itself gradually.

"Once you sack somebody unlawfully, and you sack yourself for two days, that image will improve knowing fully that an act which resorts to a wrong is remediable. Then the judiciary will remedy itself.

"When you cause great consequences to other, there is a theory in criminal law: an eye for an eye. You pay with your own eye. So, if you send somebody to prison unlawfully, for one year, for instance, you yourself should be made to sleep there for one night. Next time, when you are crossing your t's and dotting your i's', you will be extremely careful," he said.

The three top lawyers however appeared not to agree with the position of the Court of Appeal that the error in its verdict was merely clerical.

According to a respected silk, Mr Olorundare Israel, SAN, he is of the view that the error spotted in the Appeal Court judgment was as a result of human factor.

"Don't ascribe much to the judges. The Court of Appeal just like any other courts, are manned by human beings and are prone to human error. So, if they make a mistake and there is another way by which it could be corrected, why are we getting worried. Thank God they are not the final court.

"My take on it: let's wait for the Supreme Court. The Supreme Court will right the wrong. Dont worry. Dont dissipate any energy on that. The Supreme Court will correct it. There is no need for you to be in a haste. You will see how the Supreme Court will come out on it.

"The Supreme Court is a policy court. And like it was stated, the matter had escaped to the Supreme Court before they said they wanted to correct the clerical error. Once the record has moved to the Supreme Court, what it means is that the Court of Appeal no longer has jurisdiction to do that. Just wait for the Supreme Court," he told Vanguard

But both Chief Ahamba, SAN and Prof Kalu, SAN appeared to disagree with Olorundare, SAN that the error spotted in the judgment was merely clerical.

According to Prof Kalu, "This language of clerical error is a smart way to explain an error that has caused great consequences. The earlier we take election petition very seriously, the better for all of us. You cant drive away a governor, violate the will of the electorate and you categorize it as clerical error. I find it very extremely uncomfortable.

"Clerical error is dotting the i's and crossing the t's. If you fail to dot the i's and cross your t's, that is clerical. When you say governor, go or you say, governor stay, that is a very heavy slip. You say governor go, and somebody will sit down somewhere and be saying it is clerical, Ah, that is not clerical o. Clerical is just light omission," he argued.

Also contributing, Ahamba, SAN said "When you say clerical error, it is an error committed by those who produced the judgment not by the person who wrote the judgment. The court can always correct such mistakes in their judgments.

"Whether what is called error is consistent with the body of the judgment will decide whether it is a clerical error or not. For something to be an error, it must be something considered to be inconsistent with the body of the judgment. Otherwise, no court has powers to review its own judgment. But when there is a clerical mistake, court can correct such clerical mistakes but not the reasoning of the court.

"That is what will now happen when the issue arises in the superior court. They will look at it whether it is clerical or not. The Supreme Court will decide that," he added.

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