It’s often fantasized by laymen that a certain lawyer is a wizard and has not since practicing, lost a single case. Some say victory is certain whenever a Senior Advocate of Nigeria (SAN) is hired to face another in court, who is not of that class, and who is often intimidated and bullied to defeat. Those belonging to this school of thought are perhaps behind the rumour that in the ongoing Presidential Elections Petitions cases holding at Abuja, a certain petitioner has perfected plans to fly in a legal expert from Russia, who shall on arrival, lead the petitioner’s legal team and bamboozle the court to secure victory for his client.

The truth Is that a legal practitioner who is actually in practice and who has not lost a case, does not exist. Where one is found, he’s probably a new wig or a non-litigation counsel attached to a government department or one who though exposed to litigation, has none of his cases progressed to judgement. While it is indisputable that sound knowledge of the law combined with admirable advocacy prowess, are inalienable in any successful legal practice, every lawyer’s prayer is to represent a client who has a good case and in which the law, facts and evidence are on his side. In other words, where the law and evidence do not support the case of a party, the fact that he resurrected Lord Denning or Nigeria’s Rotimi Williams from the grave, to represent him, will not make much difference.

A good lawyer is therefore one who takes full advantage of a good case by knowing where to find the law and who deploys his vast knowledge, skill and experience to win the case. On the other hand, a bad lawyer is one who despite having a good case, messes it up due to lack of requisite skills to present relevant laws and evidence before the court for appropriate evaluation. He makes costly mistakes and commits blunders which could lead to his matter being dismissed on technical grounds rather than on the merits.

In summary, when a case is bad, it’s bad and has no other description. In a criminal trial for example, where an accused person was caught on camera killing another with an identified weapon, and witnesses enthusiastically appear to testify seeing him kill, in addition to other pieces of evidence pointing irresistibly to the accused as being the killer and no one else, the only option left for a good lawyer, in the circumstance, is to appeal to the court to have mercy on his client, being a first offender among other prayers in an alocutus. This is so, because he cannot by spewing grandiloquent legal jagons, unblemished grammar or by his spellbinding advocacy, conjure or transmogrify clear evidence into something else.

The above scenario appears apt in the ongoing election petitions challenging the declaration of Mr Peter Mbah of the PDP as winner of the 2023 gubernatorial election, before the Enugu State governorship and State Assembly Elections Petitions Tribunal. Having found evidence against their client in a certificate forgery allegation, weighty, and overwhelming, Mbah’s lawyers have resorted to clutching at straws and beating about the bush. It is not that the legal team is not formidable enough or peopled by world class jurists, but simply because neither the law, facts nor evidence, is on their client’s side. Section 182(j) of the Constitution of the Federal Republic of Nigeria, as amended, dealing on disqualifications for the office of governor, clearly made submission of forged certificate to the Independent National Electoral Commission, one of the disqualifying offences. On what constitutes forgery as referred to in the section under reference, available evidence abundantly derived from both the Independent National Electoral Commission and the NYSC, do not suggest that Peter Mbah, the new governor of Enugu State, did not forge the NYSC discharge certificate he submitted to the Independent National Electoral Commission INEC.

It is thus not surprising that the governor’s lawyers have begun to resort to trial and error tactics as well as other absurdities in a desperate attempt to save his office. After taking the NYSC to court and obtaining an academic order to stop it from publishing further disclaimers on Peter Mbah, the legal team has suddenly realized that it shot itself in the foot while the entire gamble has turned terribly counterproductive.

First and foremost, the disclaimers had already been published and in wide circulation, while the legal team’s main relief from the court and which was to stop the tribunal from accepting any evidence from the NYSC, was refused. What then did they achieve from the bravodo other than awful publicity for their client?

Their misery did not stop there, the NYSC in its counter affidavit and defence filed recently, exposed more of Mbah’s sins than were already known; something that could have been avoided, if the absurd idea of dragging the organization to court, was not conceived. He who lives in a glass house, should indeed not throw stones.

According to grapevine, since the NYSC filed its defence to Peter Mbah’s so-called 20 billion suit, before the Abuja High Court, his team of lawyers have disappeared, leaving the governor with no legal representation in the last two adjournments. No need to continue since their ill-advised gamble had backfired. That might not be the end of the matter since the NYSC if it counterclaimed, could continue and push the court to make a declaration that Peter Mbah forged his discharge certificate.

But wait a minute, did Peter Mbah’s lawyers reasonably expect the NYSC, as a responsible organization, not to defend itself and allow its hard earned reputation to be tainted by a guilty mind who should be running from the law? Time to face reality.

The reality is that their rash and preposterous suit against the NYSC as well as the purpoted interlocutory order they obtained, have proved incapable of stopping the Labour Party and indeed other parties at the election tribunal, from tendering evidence of forgery against Mr Peter Mbah. What then could be done to avert the danger?

In their latest trial and error move, the Peter Mbah legal team, having earlier front loaded a judgement of an FCT High Court in favour of Peter Mbah, has now filed a motion asking the court to strike out ground one of the Labour Party’s petition ( which is in respect of Mbah’s forgery allegation), since according to them, an Abuja High Court had already made a pronouncement on the matter and thus could not be reopened. The team by the application, is effectively pleading what is known in law as ‘res judicata’

WHY THE JUDGEMENT RELIED UPON, IS WORTHLESS

Peter Mbah’s counsel are through their motion, demanding a declaration from the tribunal that the Abuja FCT High Court judgement , which held that a preelection suit in respect of Mbah’s disqualification was incompetent, effectively barred it from reopening the matter.

My considered opinion is that the judgement sought to be relied upon is a worthless document, lacking in both probative and evidencial value and incapable of constituting res judicata for the following reasons;

(a) Firstly, the so-called judgement was not a final judgement having not been heard on the merits. Only a final judgement can constitute res-judicata.

(b) The Abuja FCT High Court not being a Federal High Court, had no jurisdiction to entertain the matter. Whereas the jurisdiction of a Federal High Court is nationwide, an FCT High Court having the status of a state high court, lacked both territorial and subject matter jurisdiction to entertain a matter originating from Enugu State. On the question of subject matter, only a Federal High Court under section 251 of the Constitution, can entertain a matter involving the federal government or any of its agencies. The Independent National Electoral Commission being a necessary party to the Abuja suit, the matter ought to have been commenced in a Federal High Court.

(c) TheThe FCT High Court and an election tribunal are courts of coordinate jurisdiction hence the decision of one does not bind the other. Under the principle of stare- decisis, decisions of higher courts bind those of lower courts and not vice versa. The Enugu State governorship and State Assembly Petitions Tribunal, is therefore not bound by the decision of another High Court including that of the FCT.

(d) The plaintiffs in the FCT High Court case, in question, did not join both the Labour Party and Chijioke Edeoga as parties to their suit. The law is that no one, institution or body is bound by a decision of a court to which he was not made a party and afforded an opportunity to defend himself. That is in line with section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, dealing on fair hearing.

Apart from the issue of fair hearing, which is constitutional in nature, a judgement cannot constitute resjudicata where parties are different. The parties before the Abuja FCT High Court are not the same as the parties before the Enugu election tribunal.

€ Finally, the issue of a candidate’s disqualification is one which could be challenged either in a regular court or in an election tribunal. If a preelection matter, it could be challenged in a regular court subject to section 285(9) of the 1999 constitution. The section provides that for one to have the requisite locus standi to do so, the application would have been brought within 14 days of occurrence of the event.

On the other hand, If the qualification of a candidate is being challenged as a post election matter, the petitioner can come under section 182 (1) and (2) of the constitution or section 134(a) of the Electoral Act 2022, as the justice of the case might require. The Enugu State governorship and State Assembly Elections Petitions Tribunal, is thus competent to entertain the issue of disqualification of a candidate brought before it to the exclusion of any other court as a post election matter.

The Peter Mbah legal team should therefore stop wasting the time of the court by trying to hang on non-existent loopholes as both the law, evidence and facts are not on their side. They just cannot help but allow truth to prevail.

•Justin Chukwulozie writes from Enugu.

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