Abuja Land Case: Shehu Malami Is Not Above Rule Of Law, Says Supreme Court

Just in case they are still in doubt, the Supreme Court has again served a strong notice to elite Nigerians, especially those in or close to the corridors of power who take this as a licence for impunity, that the apex court would not condone a breach of the rule of law by the powerful and the influential in the country.
The Supreme Court served the notice on Tuesday March 28, 2017during hearing of a property suit involving Sokoto Prince, Elder Statesman and former Nigeria’s Ambassador to South Africa, Alhaji Shehu Malami and businessman Sir Emeka Offor as Appellants, and a Nigerian-American businessman in Diaspora, Mr Imokhuede Ohikhuare as First Respondent.
The property in dispute is Plot 1809 Asokoro, Abuja, which both Malami and Offor seized from Ohikhuare four years ago based on a judgment delivered by an Abuja High Court Judge, A.S. Umar, in a suit filed by Ambassador Malami. On the land is a N1 billion two-wing duplex built by Mr. Ohikhuare.

However, in a unanimous decision delivered on May 28, 2015, the Court of Appeal, Abuja restored the ownership of the property to Mr. Ohikhuare, a verdict which is now on appeal at the Supreme Court. The Appeal Court had ruled that the Abuja High Court judgment was legally deficient because Malami “no longer had the power to initiate proceedings at the lower court for himself because it is settled that an Irrevocable Power of Attorney given for valuable consideration robs the donor of power to exercise any of the powers conferred on the donee.”

Since Malami had divested his interest in the land, the Appeal Court reasoned, he cannot institute any legal case on it, as the Supreme Court had ruled in the precedent case of Edebiri vs Omotayo, which the current Chief Justice of Nigeria (CJN), Hon. Justice Walter Samuel Onnoghen delivered on February 11, 2014 in suit Number SC./440/2012 involving Mrs. Mojisola Edebiri (Appellant) and Prince Omotayo Daniel & ANOR (Respondents).

At this latest hearing, the Supreme Court resolved the lingering issue of Malami’s legal representation in the appeal bearing his name alongside Offor, which controversy had stalled the case at the apex court thrice in the past. When proceedings started, it immediately became clear to the panel of five Supreme Court Justices led by Justice Bode Rhodes-Vivour (JSC) that Mr. Joe Agi (SAN) and Barrister Shaka Awaliene, who both claimed to represent Malami in suit, had failed to resolve their conflicting claims as sternly ordered by the apex court on November 15, 2016.

Taking Awaliene to task on the matter, the Supreme Court justices told him that they had nothing before them to prove conclusively that he had Malami’s brief to represent him in the matter. Awaliene’s argument that the apex court should accept a sworn affidavit deposed to by Malami, which was before the court, as conclusive evidence that he had Malami’s brief to represent him in the appeal, which the elder statesman wants to withdraw from the Supreme Court, failed to convince the justices of the Supreme Court.
Consequently, the Supreme Court ruled that it recognised only Agi as counsel to both Malami and Offor in the matter. Perceiving a game of hanky-panky by Malami on the issue, Justice Rhodes-Vivour addressed Awaliene directly: “Go and meet Malami and tell him to come here. Malami cannot hide in his house and take this court for a ride. The court does not see you (Awaliene as Malami’s counsel) in this case.” Thereafter, Justice Rhodes-Vivour ordered that proceedings continue on the substantive issues of the appeal.
In speaking to his clients’ prayers before the court, Agi said the appeal was informed by his discovery of fresh issues on the matter, which he claimed were unknown to his clients at the courts below. Specifically, Agi argued that the date on the official search document issued by the Abuja Geographic Information System (AGIS), an agency of the Federal Capital Development Authority (FCDA), to Mr. Ohikhuare, which informed the first respondent that Plot 1809 Asokoro was free of all encumbrances, came after the Mr. Ohikhuare had already trespassed on the choice land. Agi, therefore alleged a “collusion” among then Minister of the FCT and current Governor of Kaduna State, Nasiru el-Rufai, ex-FCT Minister of State, Mohammed Habib Aliyu and the FCDA to take the land from Malami and give it to Ohikhuare.
But Mr. Paul Erekoro (SAN), lead counsel to Ohikhuare, told the court that the date mix-up was not new as claimed by Agi since the search result was admitted as evidence at both the High Court and the Court of Appeal. Stating that the difference in date was a “typographical error”, Erekoro said Malami and Offor conceded the “clerical error” at the two courts below where it was not pleaded at all, hence they cannot come to the Supreme Court “to ambush” Ohikhuare unfairly with an old, conceded evidence presented as “fresh fact”.
Erokoro urged the justices to strike out the pleading on the grounds of its legal staleness. He also pointed out that allowing the pleading to stand would require calling witnesses to offer oral evidence, which the Supreme Court rules of proceedings do not allow. This, he argued, would hamper his client’s defence and injure Ohikhuare’s interest, which would amount to miscarriage of justice.
When the Supreme Court justices asked why he did not plead the typographical error at the lower courts, Agi said he was not counsel to Malami and Offor in the earlier litigations, although J. C. Njikonye (Esq) who stood in for Agi at the Supreme Court in the case when the senior lawyer was absent from the November 15, 2016 hearing represented Malami and Offor at both the High Court and the Court of Appeal.
The Supreme Court adjourned the matter to June 23, 2017 for ruling on whether or not the typographical error constitutes fresh evidence and valid grounds for the appeal.