[DOWNLOAD JUDGEMENT] Aondoakaa v. OBOT & Anor: How The Supreme Court Decided Against Former Attorney General Of The Federation For Abuse Of Office

By TheNigeriaLawyer Editorial

Introduction

This is a summary of the decision in Suit No. SC.939/2015-Aondokaa v. Obot, which was decided by the Supreme Court of Nigeria on the 20^th of December 2021 upholding the findings of the Court of Appeal and Federal High Court against the Appellant.

Facts of the Case

The People’s Democratic Party (PDP) held primary elections, in December 2006 to determine its candidate for the Uyo Federal Constituency of Akwa Ibom State in the General Election fixed for April 2007. The 1st respondent, Hon. Emmanuel Bassey Obot emerged winner and was duly presented to the Independent National Electoral Commission (INEC) as the party’s candidate. A dispute however arose when the 1st respondent’s name was substituted with the name of another candidate.

On 5/12/2007, the Court of Appeal, Calabar Division resolved the dispute in favour of the 1^st Respondent and ordered the President of the Court of Appeal to set up a new Tribunal to try the 1st respondent’s petition in Uyo. The Appellant (who at the time was the Attorney General of the Federation and Commissioner for Justice) however wrote to the President of the Court of Appeal (PCA) urging His Lordship not to comply with the judgment. The Hon. PCA however went ahead and complied with the order of the Court and set up the new panel. The new panel delivered judgment on 18th April 2008 also in favour of the 1st respondent and ordered that the 1^st Respondent be sworn into the House of Representatives as the member representing Uyo Federal Constituency.

Again, an appeal against the decision of the Panel to the Court of Appeal was unsuccessful and the Court of appeal ordered INEC to issue a Certificate of Return to the 1st respondent.

However, the Attorney General of the Federation wrote another letter dated 16/2/2009 to the Chairman of INEC, Maurice Iwu, urging him not to obey the judgment of the Court of Appeal which he described as “an obvious desecration of the Institution of the Judiciary.” He further wrote to the Speaker of the House of Representatives advising him not to obey the judgment, but “to allow the status quo ante to remain until the last or final word is heard from the Supreme Court on the issue” (Even though Section 246(2) of the 1999 Constitution, as amended, provides that the decisions of the Court of Appeal in respect of appeals arising from National and State Houses of Assembly elections are final).

As a result of the AGF’s letters the Chairman of INEC and the Speaker of the House of Representatives did not issue the 1st respondent with his Certificate of Return and he was not sworn into office.

The 1^st Respondent, therefore, filed an action before the Federal High Court, Calabar Judicial Division against the Appellant and 2nd respondent. The Appellant was sued in his capacity as Attorney General of the Federation as 1st defendant, and in his personal capacity as 2nd defendant.

The 1st respondent, as plaintiff, action in the Federal High Court alleged that the AGF had abused his constitutional office and used his powers to attempt to undermine and/or subvert the administration of justice, the rule of law and independence, authority and integrity of the judiciary, and he was therefore not a fit and proper person to hold office.

In the action before the trial court, conditional memorandum of appearance was filed on behalf of both defendants by one Nene C.A. Akpan (Mrs) of the Federal Ministry of Justice, South-South Zone, Port-Harcourt.

The said Mrs. Akpan represented both defendants in Court and sought several adjournments at their instance. On 31/3/2010, she informed the Court of her intention to withdraw her appearance for the appellant (2nd defendant) in his personal capacity, having filed a written address the previous day on behalf of the 1st defendant alone. She was ordered to comply with the relevant rules of the Court by filing a formal application and serving the parties. This was never done.

On 1/6/2010, the learned trial Judge entered judgment in favour of the plaintiff/1st respondent and made the declarations and orders sought in his favour. The appellant was dissatisfied with the decision and filed an appeal at the Court of Appeal. In a considered judgment delivered on 3rd September 2015, the Court of Appeal affirmed the judgment of the trial court.

The Appellant, therefore, brought his appeal to the Supreme Court.

At the Supreme Court, the Appellant Counsel distilled 5 issues for determination thus:

1. Whether the learned Justices of the Court of Appeal were right to hold that the Appellant was granted a fair hearing and thereby affirming the judgment of the trial court when the entire proceedings of the trial Court were tainted and vitiated by the non-service of the Originating Summons and subsequent hearing notices on the appellant.
2. Whether the learned Justices of the Court of Appeal were right to affirm the trial Court order granting reliefs not claimed by the Plaintiff/1st Respondent against the Appellant.
3. Whether the Court below was right to hold that the trial court had jurisdiction to entertain the suit, the subject matter of which was the alleged breach by the appellant of his Oath of Allegiance and Oath of Office, and the outcome of which had been overtaken by events.
4. Whether Exhibit B, C, D being uncertified photocopies of Public Documents were admissible in evidence having regard to Section 97, 109, 171, and 719 of the Evidence Act.
5. Whether the learned Justices of the Court of Appeal were right in affirming the order of the trial Court awarding exemplary damages in the sum of N50 million against the Appellant.

Judgment

On the first issue, the Counsel to the Appellant contended that only the office of the AGF was served, and Mr. Aondokaa (who was the AGF also being sued in his personal capacity was not served and hence was not granted a fair hearing in the proceedings.

In the resolving issue, the Supreme Court noted that the circumstances of the appeal was unique because, at the time the action was instituted at the trial court, the appellant occupied the office of Attorney General of the Federation and Minister for Justice. He was sued in a dual capacity — in his official capacity as Attorney General as 1st defendant and in his personal capacity as 2nd defendant.  The Court viewe that, by a motion on notice filed on 3/12/2009 one Mrs. Nene C.A. Akpan, of counsel, sought an order for extension of time within which the 1st and 2nd defendants could file their Memorandum of Appearance out of time and an order deeming the Memorandum of Appearance and in the affidavit in support of the application stated that she was from the Chamber of the AGF in Port Harcourt and had the consent of the 1^st and 2^nd Defendant to present the application. Her memorandum of conditional appearance was also entered for the “Defendants” in the action. The Court therefore held that “it is evident that after filing the Memorandum of Appearance, further steps were taken on behalf of both defendants to defend the suit”.  Furthermore, although Mrs, Akpan later sought to withdraw appearance in the suit, the Court however viewed that the attempt to do so did not comply with the requirements under the Rules of the Federal High Court 2009 which required her to serve all parties with the application. Hence the Court concluded that “A Court of law can indulge a party only within the confines of its rules and where the Rules of Court in line with the fair hearing principles order a specific conduct on the part of the parties, the Court has a duty to enforce the rules. In such a situation, a defence of fair hearing is not available to the aggrieved party because the rule itself has complied with fair hearing.”

The Court therefore found the allegation of breach of fair hearing to be unfounded as “The appellant was duly represented by counsel, submitted to the jurisdiction of the Court, but failed to avail himself of the opportunity of being heard. He is deemed to have waived any alleged irregularity in the service of the originating processes on him”.

On the third issue Counsel to the Appellant contended that the main compliant before the lower court was whether the Appllant acted in breach of office as prescribed by Section 149, of the 1999 Constitution, as amended, and that the proper forum for such a complaint is the Code of Conduct Tribunal established under the Constitution as it is “a matter within the exclusive jurisdiction of the Code of Conduct Tribunal and not within the jurisdiction of the Federal High Court. Therefore, the orders made by the Federal High Court preventing the appellant from holding any public office in Nigeria, were made without jurisdiction.

In the resolution of the issue, the Court held that Section 251(1) (r) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, vests the Federal High Court with jurisdiction in “any action or proceeding for a declaration or injunction affecting the validity of any executive or administrative action by the Federal Government or any of its agencies” and the suit is challenging administrative acts carried out by the 2^nd Defendant while occupying office of the AGF. That the reliefs sought are purely civil, and the quasi-criminal jurisdiction of the Code of Conduct Bureau does not extend to matters involving injury to an individual in a civil case. The issue was therefore resolved against the Appellant.

On the Fourth issue, the Counsel to the Applelant contended that the documents annexed to the 1^st Respondent affidavit where public documents which ought not to have been admitted. On this contention the Court however viewed that any objection to any of the documents attached to an supporting affidavit could only be raised at the hearing of the suit and since the Appellant counsel during trial raised no objection, the documents thereto stood unchallenged and uncontroverted and the Court was entitled to rely on them.

On the second issue, the Appellant counsel contended that the trial court granted reliefs not sought by the Plaintiff/1^st Respondent by making an order referring the Appellant to the Nigerian Bar Association for appropriate disciplinary action and making a declaration that he abused the powers conferred on him under the constitution. Counsel to the 1st Respondent however contended that the Court is entitled to make consequential orders which give effect and meaning to the judgement noting that the Court has both a moral and constitutional burden to condemn and reprimand unscrupulous and fraudulent characters.

In resolving this issue, the Court relied on U.O.O, Nigeria Plc Vs Mr. Maribe Okafor & Ors, (2020) LPELR-49570 (SC) @ 45-46 F-C, per Mary Peter-Odili, JSC, where His Lordship held thus: “In respect of the arguments of the appellant that the trial Court and affirmed by the Court below erroneously awarded claims not part of the reliefs sought … That concern would not fly in the light of the evidence before the Court upon which the trial Court made the orders which clearly were consequential and the Court was acting in due exercise of its powers. There are consequential orders which are incidental to the decision of the Court and which followed necessarily, naturally directly and consequently from the judgment and not extraneous nor could be classified as strange and did not need to have been claimed earlier to be given or granted.”

The Court therefore viewed that the order made was a consequential order naturally flowing from the resolution of the questions for determination and that the Court has a duty to use its powers to do justice in the case where an attempt to subvert the administration of justice has occurred. The issue was therefore resolved against the Appellant.

On the issue of complaint against the award of exemplary damages against the Appellant, the Counsel to the Appellant submitted that the Court acted upon a wrong principle of law in making the award. He contended further that the injury allegedly suffered by the 1st respondent was not attributable to the appellant because he merely gave advice in his capacity as the AGF and the recipients were not under any constitutional obligation to act on the advice.

The Court however held that There is no doubt that the pleadings in this case support the award of exemplary damages against the defendants, having established unconstitutional acts committed by the writing of letters to the President of the Court of Appeal, The Speaker of the House of Representatives and the Chairman of INEC, advising them to disregard orders made by the Court of Appeal, in flagrant breach of Section 287(2) of the Constitution which the appellant swore to uphold, which provides that the decisions of the Court of Appeal shall be enforced in any part of the Federation and by all authorities and persons and by Courts with subordinate jurisdiction to the Court of Appeal and Section 246(3) thereof, which provides that the decision of the Court of Appeal in the election matter in issue.

The Court reinterated the decision of the Court of Appeal, per Oyewole JCA in holding that

“It is unthinkable that the occupier of the exalted office of Attorney General would subvert the ends of justice, as was crudely done in this case by the appellant, When an Attorney General acts imperiously, placing himself above the laws of the land, impunity and anarchy are enthroned. Public office is a sacred trust and an Attorney General should epitomize all that is good and noble in the legal profession. That office should never again be occupied by individuals of such poor quality as the appellant It is ironic that the appellant should approach the same temple he so brazenly desecrated for succor against the consequences of his appalling conduct. To restore the dignity of the legal profession and reinforce the confidence of the administration of justice, the Nigerian Bar Association is invited to the facts of this case and the judicial reactions thereto and subject the appellant to its appropriate disciplinary processes.”

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In Conclusion

In Conclusion, the Supreme Court found the Appeal of the Former AGF to be devoid of merit and unanimously dismissed it.