By Osigbesan Sultan Luqman, EDITOR
The Case: Appeal No CA/A/370/2012 (Holden at the Court of Appeal, Abuja Division)
Appellant: Mr. Imonkhuede Ohikhuare
Respondents: Amb. Alhaji Shehu Malami, Sir Emeka Offor, Minister of the FCT and the FCDA
To the God-fearing and the fair-minded, what you are about to read would amount to nothing but a classic story of naked abuse of power, money and influence by individuals, who by their station in the corridors of power, take delight in oppressing and robbing fellow citizens of their hard-earned means of livelihood and property.
In 2006, former Minister of State for Transport, Alhaji Habibu Aliyu, sold Plot 1809 to Mr. Ohikhuare, who also perfected this transaction with FCDA and AGIS and went ahead to build two duplexes on the land. He and his family lived in one of the duplexes and took in a tenant – one of the daughters of late President Umaru Musa Yar’Adua (names withheld) – into the other.
Between the time when he bought the land, built the duplexes and moved in with his family – four years – no individual or corporate entity showed up at Plot 1809 to lay any claims to it. But on March 9, 2010, Elder Statesman and Sokoto Prince, Ambassador Shehu Malami filed a suit in an Abuja High Court before Judge A.S. Umar against the minister of the FCT, the FCDA and Alhaji Aliyu over Plot 1809, praying the court for a number of declarations and injunctive reliefs against them. Thus began the nightmare for Mr. Ohikhuare and his family.
After the trial of the suit, which Mr. Ohikhuare voluntarily joined, Justice A.S. Umar delivered his judgment on May 17, 2012, in favour of Ambassador Malami.
Mr. Ohikhuare and his family members were shocked. His team of eminent Senior Advocates of Nigeria (SAN) were also stunned by the conduct of Justice A.S. Umar during the trial, which they deemed unbecoming of a judicial officer. One of, Lagos-based lawyer and eminent rights activist, Mr. Femi Falana (SAN), fired a petition to the National Judicial Council (NJC) on the matter, laying the misconduct allegations against Justice A.S. Umar before the NJC.
In the petition (produced in bromide form on Page…), dated February 20, 2013 Falana alleged that Judge A.S. Umar was “so eager, it seems,” “to give judgment to the Plaintiff (Malami) that the Judge prepared his judgment in a most inelegant and incongruous manner: the reliefs listed or reproduced at the first page of the judgment as those sought in the suit were five (Reliefs i-v), while at the last page of the judgment, the Judge granted, in sum, Reliefs I, ii, iii, iv, v, vi, and viii, and refused Relief viii, the last three reliefs (vi, vii and viii) not listed or reproduced in any portion of the judgment at all.
“In his judgment, His Lordship listed or reproduced, as the reliefs claimed in the Suit, the reliefs that were sought in the original Writ of Summons and Statement of Claims, instead of reflecting those sought as per the Amended Statement of Claim that was filed on the 13th of July, 2010; His Lordship, however, granted reliefs contained in the Amended Statement of Claim, which he never reproduced or reflected in his Judgment as the reliefs sought in the action.
“Instructively, the Plaintiff did not seek in his claim, as per the Amended Statement of Claim, and the Court did not grant an order for possession, which, procedurally could have ripen to the issuance of a writ for possession being issued by the Judge.
“Our contention is that the deeds (or do we say misdeeds) of Honourable Justice A.S. Umar in facilitating the execution of his judgment (wherein no executory order of possession was given) and the illegal and unconstitutional extra-jucial take-over of our client’s property by SIR EMEKA C. OFFOR, constitute a breach of the oath of judicial office oh Honourable Justice A.S. Umar, and amount to a gross act of judicial misconduct.
“While our client is exercising his constitutional right of appeal to upturn the Judgment of Honourable Justice A.S. Umar, our client is of the strong view that his Lordship’s role in the Suit, before the Judgment and after the judgment, leading to the take-over of his building, ought to be investigated with a view to imposing an appropriate disciplinary sanction on him, in the overall interest of administration of justice.”
Citing a similar case that occurred in the Lagos Judiciary and how swiftly the NJC intervened and sacked the indicted judge some years back, Falana contended, in the petition, that it would “amount to double standards and connivance at the act of corruption on the Bench should the NJC shy away from swiftly applying the same sanction against Honourable Justice A.S. Umar, when, as demonstrated above, the Judge did not only issue a warrant of possession before the time allowed by law, but he also deliberately issued a warrant of possession when none ought to have been issued at all. This is nothing but a naked abuse of judicial power.”
Urging the NJC “to do justice in this matter,” Falana stressed that the “NJC has a duty to halt any further dent to the image of the Judiciary in these troubling times, when the impartiality and relevance of the Judiciary is, daily, being called into question.”
However, as at the time of going to press, the NJC has not attended to Falana’s petition.
The Legal Fireworks At The Appeal Court
Mr. Ohikhuare, now the Appellant, filed a notice of appeal against the judgment of Judge A.S. Umar on May 23, 2012.
Counsel to Malami and Offor have also filed their replies to the Appellant’s grounds for appeal.
But in a letter dated January 11, 2013 and addressed to the Presiding Judge, Court of Appeal Abuja Division, Ambassador Malami asked the court to delete his name from the appeal on grounds that “some years ago,” he had “sold the property in dispute to Sir Emeka Offor and gave him the power of attorney to enable him take over ownership of the property.”
The elder statesman stated that he filed the initial case at the Abuja High Court because he “did not know that Sir Emeka Offor had registered the power of attorney I gave him.” (See bromide of Ambassador Malami’s letter on Page
Also, during the pendency of the appeal, Sir Ofor brought an application to be joined as a party interested/respondent on grounds he had an equitable interest in Plot 1809, Asokoro by virtue of an irrevocable power of attorney executed in his favour by the first respondent (Ambassador Malami).
Offor added that the judgment of the lower court had since been executed in his favour and that he was in possession of the property in dispute. The Appeal Court granted the application and thus Ofor became the fifth respondent.
At this point the Appellant said he had discovered fresh evidence, which was not available to him while the case was on trial, and therefore sought for the court’s permission to tender it. But counsel to the first and fifth respondent, Chief Udenwa Udechukwu (SAN) opposed this request.
According to the Appellant’s lead counsel, Paul Erokoro (SAN), the fresh evidence further led credence to the Appellant’s position that the High Court verdict was obtained by fraud and that the lower court had no jurisdiction to entertain the suit ab initio.
Ruling on the arguments on December 13, 2013, Justice Joseph Tina Tur of the Appeal Court, Abuja Division who read the lead judgment, stated: “It seems to me therefore that if there is an allegation that a party in the lower court obtained judgment by fraud or collusion, an Appeal Court can grant leave that fresh evidence or argument should be raised on appeal, which, if proved, may vitiate the entire judgment or proceedings…
“Leave is therefore granted the appellant to file and argue additional grounds of appeal to amend the brief of argument in line with the prayers in the motion paper… The appellant/applicant is entitled to N50,000.00 cost against the first and fifth respondents.”
The ruling by the Appeal Court lifted Mr. Ohikhuare’s spirit in no small measure. Small as that victory might seem, it a legal gem that immediately pries open a large chink in the seemingly impenetrable amour the verdict of Judge A.S. Umar appeared to have cloaked the 1st Defendant in for this appeal. This is because by this ruling, the Appellate Court, could clearly see the importance of the hidden evidence to Mr. Ohikhuare case. The fresh facts, it appears to the Appeal Court, took the bottom off Ambassador Malami’s locus standi to even institute a suit on Plot 1809, Asokoro before Justice A.S. Umar at all in the first place. The dark cloud of conspiracy appears to be lifting on this case and the Appellant!
But then, through their counsel, Ambassador Malami and Sir Offor, in an application, asked the Court of Appeal, Abuja Division to reverse itself on this verdict allowing Mr. Ohikhuare to file fresh evidence in the case. The duo also asked the Court of Appeal to either revert itself on its interlocutory order admitting Offor’s power of attorney on Plot 1809 Asokoro and Malami’s letter before the court in which he asked that his name be removed as a respondent in the appeal as evidence, or allow the duo to go to the Supreme Court to challenge the admissibility of the documents, and later return to the Appellate Court for the continuation of the appeal.
However, on Monday, June 2, 2014 Ambassador Malami and Sir Offor lost these applications as the Appeal Court of a panel of three justices led by Justice Abdulkadir Jega, dismissed their applications “for lack of merit.”
If the two respondents’ appeal had succeeded, Ohikhuare and indeed the Court of Appeal would have found themselves in a quagmire in which the first and fifth respondents in the appeal – Malami and Offor in that order – would have succeeded effectively in delaying the appeal process to remain in possession of Plot 1809, Asokoro, where Sir Ofor has moved into.
At this June hearing, the appellate court also allowed the FCDA to join the suit via a cross appeal. In its application to join the appeal, the FCDA faulted the lower court’s verdict on Plot 1809, Asokoro contending that it has the legal powers to revoke the certificate of occupancy it initially issued to Ambassador Malami over Plot 865 (now Plot No. 1809).
Imonkhuede vs Amb. Alhaji Shehu Malami & 3 Others: The Diaspora And Foreign Direct Investment (FDI) Interests
At first glance, Imonkhuede vs Amb. Alhaji Shehu Malami& 3 Others might appear to be a local litigation involving Nigerians only and which resolution, at best, would only contribute to deepening our country’s jurisprudence. In effect, however, the ripples that Imonkhuede vs Amb. Alhaji Shehu Malami & 3 Others would generate will reverberate beyond our shores, with potentially positive or negative import – depending on where the pendulum of justice swings in the matter – for the Nigerian economy, vis-à-vis the Federal Government’s efforts to bring in FDI and the country’s overtures to Nigerians in the Diaspora to come and invest at home.
And this is largely because of the personality involved and the issues at stake. The Appellant, is a successful Nigerian-American of high standing in the Diaspora Community whose members are aware of this sad turn of event following Mr. Ohikhuare’s resolve to heed government’s call to Diaspora Nigerians to help out in the nation-building process. According to developments experts who spoke with The Dream Daily on condition of anonymity, “many Nigerians living abroad are aware of this matter and are following it closely. Naturally, they will think twice about coming home to invest or even building a residential home if the sceptre of brazen seizure would hang on the property they acquired in Nigeria. Nobody wants to make money abroad, bring it home to invest and lose it just like that.
“Nigerians in Diaspora remit billions of dollars home every year. The larger part of that are funds meant to go into direct investments in all sectors of our economy, including housing.
Imonkhuede vs Amb. Alhaji Shehu Malami & 3 Others: A Celebrated Case In The Offing?
Indeed, the eyes of the World, not just those of Nigerians, are on Appeal No CA/A/370/2012, watching the acts of justice that the Court of Appeal, Abuja will serve on Plot 1809, Asokoro where Sir Offor currently lives in the duplex built by and hitherto occupied by Mr. Ohikhuare and his family, and probably taking the rent from one of late President Umar Musa Yar’Adua’s daughter, to whom Mr. Ohikhuare let out the second duplex.
To be sure, Mr. Ohikhuare is currently dispossessed of his twin-duplex property on Plot 1809, Asokoro, but he is contending before the Court of Appeal, Abuja that Ambassador Malami and Sir Offor have forcibly seized his property from him on the strength of a judgment fraught with fraud, concealment of facts and brazen collusion. However, his faith in the Court of Appeal, Nigeria’s judicial system in general and the rule of law to recover Plot 1809, AsokoroS remains unshaken.
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