• Monday, March 04, 2024
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BusinessDay

The trial of ‘Brother’ Amaechi

Wike-Amaechi

Preamble:
New Governor of Rivers State, Nyesom Wike, wants his predecessor, kinsman, political mentor and now a bitter rival, Chibuike Rotimi Amaechi, probed to the fullest and has therefore set up a judicial commission of inquiry as soon as he came to power to execute the project. The ex-governor who himself set up a panel in his last days as governor to probe political killings in the state, rushed to a Port Harcourt High Court to stop the “trial”. Now, the hammer has come down: Amaechi must face ‘trial’. This has attracted reactions from many quarters.

The judicial community in Rivers State seems to habour grudges against Amaechi on the one year shut-down of the judiciary in the state over fierce political crisis that attracted bombings. Many lawyers said they suffered untold hardship due to loss of income. Each time Amaechi therefore, approach the courts for adjudication, murmurs would rise as to why he should seek judicial reprieve when, to them, another governor has come to re-open the courts.

The case and the verdict:

Amaechi had challenged the constitution of the George Omereji Judicial Commission of Inquiry by Governor Wike to probe the financial activities of the ex-governor, especially the sale of Rivers State assets by the immediate past administration.

The trial judge, Simeon Amadi, while delivering the judgment recently, declared that the judicial commission of inquiry was not established to investigate the personal activities of the former governor; but to investigate previous actions of government as they affected the people of the State.

Amadi ruled that Governor Wike, by the provisions of the law, was empowered to establish the commission to investigate previous actions of government, adding that no prevented a state government from finding out how its resources were expended.

He declared that the former governor could not disburse and expend funds of the state government, and turn around to claim that such powers belonged to the National Assembly.
On the claim by Amaechi that the 30 days set aside for the sitting of the Judicial Commission of Inquiry would deny him fair hearing, the High Court held that the days set aside had not breached his right to fair hearing. The court held that the former governor had not filed a memorandum before the Commission, and had not appeared before it, and therefore, should not complain that he was not given a fair hearing.

Amadi said the 30 days set aside were not sacrosanct, and therefore, could be extended, and further held that the suit by Amaechi was speculative, as he failed to prove the injuries that he had suffered because of the setting up of the Judicial Commission of Inquiry.

The trial judge held that contrary to Amaechi’s claims, the terms of reference of the Judicial Commission of Inquiry did not accuse the former governor of crime, neither was he on trial. He declared thus: “The Judiciary is not only the last hope of the common man, but it is also the last hope of the mighty and movers and shakers of democracy.

“Those, who by the benevolence of the Judiciary, got to power should resist the temptation to emasculate the Judiciary.”

Jubilation in Wike’s camp:
In his comment on the judgment, the state Attorney-General and Commissioner for Justice, Emmanuel Aguma, said the Commission of Inquiry could now sit; pointing out that it would be fair to all parties.

Counsel to Governor Wike said that the ruling of the court had proved that a claimant could not jump to court to stop the legitimate business of a Judicial Commission of Inquiry.
Also, the People’s Democratic Party (PDP) in the state said it welcomed the judgment. The chairman, Felix Obuah, in a statement signed by his Special Adviser on Media and Publicity, Jerry Needam, said there was no hiding place for the former governor and his allies who allegedly looted the state, converted public facilities to personal properties, and allegedly misappropriated billions of dollars belonging to the state.

Sounding even more confident of what would soon happen, the statement quoted the PDP boss as declaring that by the judgment, the former governor and all those who “collaborated with him in making Rivers State bankrupt would now face justice”.

Fierce reaction from Amaechi’s camp:

In a documented but fierce reaction by the immediate past attorney-general of the state and commissioner of justice, the very fiery Boms Wogu, now fully back to legal practice, noted significance of the law Wike relied upon to set up the commission of inquiry; the Rivers State Commissions of Inquiry Law, CAP 30 Laws of Rivers State.
In summary, he wrote: “Comedy of legal errors: The Commission of Inquiry Law which was cited as authority, in all its 23 Sections, did not authorise the setting up of a Judicial Commission of Inquiry, but merely stated that the governor can set up an inquiry because judicial powers are vested in courts of law (Section 6(6) (b) of the Nigerian Constitution).” Indeed, in the very popular case of Garba V. University of Maiduguri, the Supreme Court held thus:

“Judicial Powers are not vested in private persons, administrative tribunals or other authorities (underlining mine). Any purported exercise of Judicial Power by these bodies is a denial of the right to fair hearing”. Earlier, in Hart Vs Military government of Rivers State & 2 ORS (1976) 11 S.C 211, the Supreme Court warned that “no labels such as ‘judicial’ or ‘quasi judicial’ are necessary as they tend to confuse the understanding and duties of a Commission of Enquiry.”

Wike CON, governor of Rivers State, was thus exercising a power that His Excellency did not have. To add ‘Judicial’ to a mere administrative inquiry did not reflect a doing of right according to law as it gives the public the dangerously misleading impression that the Commission is a High Court by another name called. It is not.

It would appear that the constitution of the Commission and its Terms of Reference are so incurably defective in law that no amendment can validly save it.
In inaugurating the Commission, the governor charged it, amongst others, to investigate the illegal deduction from the state’s savings account without compliance with extant laws. By concluding that the act which the Commission is to investigate is illegal, or was done outside the Law, ( as the published Terms of Reference renders it), he has already made up his mind and is thus, asking the administrative commission of inquiry (that is what it is) to investigate the illegality.

The Justice Nganjiwa judgment in PDP Vs. Chidi Odinkalu & others’ Suit No. FHC/PHC/FHR/256/ 2015, which the PDP, with Nyesom Wike, as he then was, now Governor, as its leader, filed before the Federal High Court, Nganjiwa J, challenging the then Governor Amaechi’s constitution of the Chidi Odinkalu’s Commission of Inquiry into politically-motivated killings, the PDP argued, with ferocious force, that by Section 4 of the Police Act, only the Nigeria Police, and not a Commission of Inquiry, could investigate crime. Nganjiwa J, agreed and restrained the Rivers State Government and the Commission from taking further steps in connection with the sitting and hearing of the Commission of Inquiry instituted by the then Governor.

Effectively, the Court held that the Odinkalu’s Commission of Inquiry established under and pursuant to the same Commission of Inquiry Law now relied on by Governor Wike, could not validly look into any alleged Commission of Crime as only the Nigeria Police could do so.

Based on that judgment which Nyesom Wike and the PDP procured, the same Rivers State Government, though now under a new head, cannot validly be setting up the same Administrative Inquiry under the same Law, to be investigating the alleged crime of illegal deduction of public funds (without recourse to extant laws) and sundry other alleged illegalities for, according to the judgment of Nganjiwa J, that it is the exclusive function of the Nigeria Police and certainly not that of a Commission of Inquiry.

Therefore, even if the word ‘Judicial’ is removed from the name of the inquiry, leaving it with its proper name of Commission of Enquiry, which was what the Odinkalu’s Commission was, the fundamental defect of legal incapacity as enunciated in the Nganjiwa judgment, is still there affecting and afflicting it.

THE CASE OF OBVIOUS BIAS: Having held that the person to be investigated, Rotimi Amaechi, former governor, acted illegally in the disbursement of public fund and that he ran a corrupt government, Nyesom Wike, the governor, has prejudged the matter and shown his bias. Does it matter? Yes. How? This is how:
THE JUSTICE ADAMA IYAYI-LAMIKANRA JUDGMENT: Nyesom Wike, as he then was, now governor, and as leader of PDP in search of political power, sponsored a House of Assembly member, Victor Ihunwo, who was among the minority that sought, almost successfully, to impeach the House Speaker, resulting in near-fatal crises in the State House of Assembly on July 9, 2013.

The Rivers State Government, in its wisdom to know what happened and how and to prevent a recurrence, instituted an Inquiry under the same Law under which the Omereji Commission under reference is now being hoisted.

Wike and his group filed Suit No. PHC/1604/2013 (Hon VICTOR IHUNWO Vs. Hon JUSTICE B. A. GEORGEWILL & 10 Ors) which came before Iyayi-Lamikanra J. After submissions, the learned trial judged disbanded the Commission chaired by Justice B.A. Georgewill, then of the same High Court, on the ground – according to the Judge – that the governor had interest in the outcome of the Inquiry. Simply, that bias was established against the Governor who set up the Inquiry.

In other words, Governor Amaechi who set up the Inquiry had an interest. To have an interest is a long-winding way of simply stating ‘bias’.
Bias manifests in prejudging an issue and committing to it in advance. It means a prejudiced, made up mind, even before the outcome is known or established.
Thus, in R V. KENT POLICE AUTHORITY & ORS EX PARTE GODDEN (1971) 2 QBD 668,669 it was held that it was wrong and improper, indeed, a breach of the Rules of fair hearing, to refer the issues for determination to the same medical officer, Dr. Brown, since the doctor had already expressed an opinion adverse to the applicant and committed himself in advance.
Governor Wike having committed himself in advance that his predecessor acted illegally, that being the case, on the strength of the Iyayi-Lamikanra J, Judgment, the Omereji (Judicial) Commission of Inquiry is dead on arrival as the findings of the Commission, by Law, shall be made directly to the same governor for ratification. The same person who had adjudged the yet-to-be-investigated conduct illegal is the same person to have a final say on the final findings!

Justice Iyayi-Lamikanra in his judgment also followed the decision of the Supreme Court in GARBA V UNIVERSITY OF MAIDUGURI that a Commission of Inquiry, could not validly inquire into any alleged commission of crime. On this additional strength, the Judge struck down the Commission.

EVEN IN SIMPLE FACTUAL MATTERS, THE BIAS IS EVIDENT:
It is the same bias we see in simple matters of fact: The governor said the Commission should investigate the circumstances that led to the sale of the State Hotel Olympia. With a pure mind, the Inquiry should have been ‘to examine (or investigate) the Transaction concerning Hotel Olympia’. The difference is so clear. Now, having so concluded that the Hotel was sold, would the governor be humble enough to reverse himself if documents show it was never sold but concessioned or leased?

Omereji, chairman of the Commission, should have turned down the offer

It is always a source of joy to be called upon to serve one’s compatriots; but one must not always serve especially when doing so will open one to sincere and justifiable accusations of unconscionableness.

Justice Omereji has been my personal friend for some years. I have high regards for him. I suspended the active friendship when I got appointed to government and political hostilities brewed and I noticed his disposition and stance. I did not want that to strain the friendship.

In course of my friendship with him, he has (shown where his bias was). How, then, can he now accept to be ‘the Judge of such a man he so loathes’? How?
Conclusion: Since it is clear that a Major Objective of the new administration in Rivers State is to dissolve the person of Rotimi Amaechi, politically, and having found him ‘guilty’ of illegal deduction of public funds and of running a corrupt government, there is no need to bother The Chair to investigate an adjudged illegality since The Chair is not a policeman or a member of the police in the tenor of Justice Nganjiwa’s Judgment. The Chair should be spared the unconscionable burden of trying or investigating Amaechi since it is within his right, as a human, imperfect humans we all are, to habour resentments towards any.

The Chair himself, on the basis of honour should have declined to try this serious enemy of his. What matters, once you are alive, is not life, per se, but the courage you bring to live it, so said the Sage. Here, we have in mind, the courage to say ‘No, Sir, I won’t inquire into my enemy because I will not be fair to him’.
That Commission of Inquiry is ill-conceived, ill-motivated and especially from legal standpoint, illegal vis-à-vis the judgments referred to earlier, which judgments the Governor Wike himself was a participant in obtaining. The Commission shall not achieve anything beyond political entertainments and excitements. Law should always win politics and politics should not always win Law.

Finally, the same lawyers who, with ferocity, argued Justices Iyayi-Lamikanra and Nganjiwa into Ruling that a Commission of Inquiry cannot inquire into allegations of crime, etc are exactly the same lawyers, yes, exactly the same lawyers, now appearing in the same High Court, Rivers State, arguing, with an even higher ferocity, that Governor Nyesom Wike was right in establishing a Judicial Commission of Inquiry to investigate alleged illegalities and crimes.

The desperate search for Rotimi Amaechi political downfall should not be a Magna Carta, to ridicule Law, its practice and the legal profession.
Last Line:

In her remarks, counsel to Amaechi, Winifred Enyinnaya, said that her client would appeal against the judgment. Should the hearing begin, fireworks would be expected.

 

Ignatius Chukwu