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Promoting Good Governance.

Agba Jalingo casts doubt on judge’s fairness

Says he'll go on with secret trial if court allows electronic recording

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AGBA JALINGO, Publisher of CrossRiverWatch who was in August charged by the Nigeria Police with treason and disturbance of public peace, has said he is “willing to face his trial even in secret” as ordered by the court if the proceedings are recorded fairly and verbatim through an electronic system.

In a notice of motion filed on Wednesday by his counsel and obtained by The ICIR, Jalingo urged the Federal High Court in Calabar to provide for an electronic recording that is to be done separately from the judge’s long-hand recording and to adjourn the trial till the application is ruled on.

A similar application had previously been made orally, Jalingo’s lawyer James Ibor stated in an attached affidavit, but “His Lordship refused to record the oral application but responded to it by accusing our lead counsel of coming from Lagos to disturb the peace of Calabar, the Cross-River State, and his Court”.

“Since the Court did not record the oral application and his peremptory dismissal of it, we have deemed it appropriate to formalise the application,” Ibor added.

Some of the grounds for the application include that the court has ruled in favour of a secret trial, the defendant’s lead counsel Adeyinka Olumide-Fusika (SAN) has raised concerns about the integrity of the court’s records, and reliable records will not prejudice the defendant’s case at the appeal court.

Ibor, in his statement, also made reference to instances during the trial that gave the impression that the trial judge, Simon Amobeda, “harbours some predetermined notions or positions in the case, and that he was lending his weight and authority to one side against the other”.

He said Amobeda, in some of his rulings, failed to fully reflect the arguments of Jalingo’s lawyers and sometimes either mischaracterised their submissions or attributed to them statements they did not make.

“Our client, Mr. Agba Jalingo, had earlier expressed to me his own reservation regarding what he perceives of the independence of the Court and his chances of being treated fairly and getting justice in the case,” he said.

“His reason for this was that whereas the application made to the Court by the Prosecution was specifically for ‘AN ORDER,.. granting leave to the Complaint/Applicant (sic) in Charge No. FHC/CA/59C/2079 to produce her witness in court being mask (sic) on the next adjourned date on till (sic) they finally completed given their evidence”, his lordship granted that “The trial of the Defendant
shall now be undertaken in camera… Members of the public and the press shall be denied access to the Courtroom during the evidence of the Complainant/Applicant’s witnesses and the identity of the Prosecution witnesses shall be protected from the Defendant and his counsel…”

In other words, a number of the orders granted by the court were not prayed for by the prosecution.

Ibor concluded: “After witnessing what transpired today, the Defendant has again expressed to us his doubt as to the fairness of the Court but we have assured him that he will have his opportunity to have his case reviewed by a higher court. lt is for this reason that the Defendant seeks a verbatim record of the trial proceedings by electronic means to ensure completeness of the record beyond what his lordship is able to take down in longhand.

Justice Amobeda had on Thursday ruled that the first testimony of masked witnesses will be heard on Wednesday, November 20 and that Jalingo should be remanded at a medium-security custodial centre till then.

‘Your life now is in the court’s hands,’ Amobeda tells Jalingo

In a leaked audio recording of Amobeda, while he was addressing a group of lawyers earlier in the week, he recalled that he told Jalingo his life is now in the court’s hands following a walk-out staged by Olumide-Fusika and the defence legal team.

He said he only takes instructions from God and will not be intimidated by anybody. He also denied conniving with the prosecution and repeatedly emphasised that he will not subvert the course of justice.

“If you come here and the matter is not in your favour, go to the Court of Appeal, not come and make noise,” he said, referring to the conduct of Olumide-Fusika.

“I don’t have anything against any person. I don’t know any person in this place and by the grace of God nobody has tribal marks like me in this place,” Amobeda said as others laughed lightly. “So why will I now say because you have tribal marks like me, I will now begin to favour you? I don’t do it. If I want to favour it’s in my chambers. If you give me good thing I will favour you in my chambers, but when you do not give me … ”

It is not clear what the judge means by “good thing” and granting favours in his chambers.

Here is the full transcript:

(Inaudible parts are indicated through the use of ellipses.)

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… Senior Advocate of Nigeria … a criminal matter; criminal matter that has a death sentence attached to it. Late … walked out on the tribunal in the Ogoni matter. Ken Saro Wiwa. What happened? The matter went on and Ken Saro Wiwa was convicted and sentenced to death. … play the gallery and you were addressing us, the press … this and that … he went and hired all these small … to come and … I don’t care about any person. I can never take instruction from any person. No. It’s not possible. I take instructions from God Almighty, whether you believe it or not.

When it goes in your favour, you say Justice Amodeba knows how to do this job, but when it goes against you, the next thing is this. He brought an application before me; the application was argued vehemently, seriously. And I delivered the ruling. And you are now going through the backdoor again to introduce a similar application. Of course, he should know that I will reject that application, only for you to say ‘ehn, bias.’ Bias in what? It is so unfortunate that some lawyers who came with the Senior Advocate of Nigeria, who think he is a very big man … Senior Advocate of Nigeria 2019. {Laughter.} He didn’t know I could investigate him… The moment you appear before them, they begin to ask questions about you. How I get to know about him, he will not know. I am not an arrogant person, but I told some person, if it were those days, if not because of this. Let’s go to … junction and see whether you can get it. If you get it, you go free, if you don’t get it, you get fined. If you come here and the matter is not in your favour, go to the Court of Appeal, not come and make noise.

Senior Advocate of Nigeria, the three times he appeared before me, the first time was to bring down the court, the second time he was gentle, the third time he was saying ‘waoh, waoh, waoh’, he was shouting on top of his voice. I told myself, I refuse to be intimidated, not this man, it can never happen. So lawyers should learn… when it goes against you, don’t carry your pen and go … A Senior Advocate of Nigeria came from Lagos, carried his books and left. The lawyers with him from this division who have appeared before me and I’ve given judgement in favour, all of them, let my people go.

If you are representing your client, do it very well, not to come and shout and shout. And if you shout at me, where will you go to? Nowhere. The first day he shouted, ‘Pra! Pra! Pra! Heyyy!’… I was looking at this young man… Some lawyers were here yesterday, they didn’t even protect me at all. It is unfortunate.

{Lawyer: Sorry, my lord.}

A man is shouting at the court, it is left for you to say, ’ah ah, when you are going to his lord, this court is not like that.’ Lawyers of this jurisdiction, they are not known to be shouting at the judges. Somebody was shouting, that is not the first time he did; and then you kept quiet and were looking at him. He was gallivanting and shouting at the judge, and then looking at the small small persons … it’s just submission o. You have already argued an application and there was a response from the prosecution and I said, ‘Okay, re-file your points of law.’ He began to … and you want me to recover that you have said it, for what? It is a critical matter, one that carries the death penalty. If you walk out… And I told the young man yesterday, ‘Your life now is in the hands of the court.’ Choose: Are you going to defend yourself or you … I will give you an adjournment. I am not here to bring injustice, it is not possible. Some of you have been in this court when I discharged and acquitted somebody who was supposed to spend 15 years or 25 years in prison. I said go, you did not commit the offence. How can somebody just wake up from the dream and say, ‘ehn. I am conniving with the prosecution.’ For what now? I am urging him to do what he needs to do.

The matter is adjourned till tomorrow, so let’s see what will happen, whether they will come or not. But one thing I know is that the trial will go on. I don’t have anything against any person, I don’t know any person in this place, and by the grace of God nobody has tribal marks like me in this place {laughter}, so why will I now say because you have tribal marks like me, I will now begin to favour you? I don’t do it. If I want to favour it’s in my chambers, if you give me good thing I will favour you in my chambers, but when you do not give me … (incomplete sentence). Let us avoid running down judges, it is not good for us. It is not good for the system. You see what we go through on a daily basis. I did not invite these security men here, but the whole of this place … both the DSS, the police, and Civil Defence. I didn’t call any person. Perhaps, maybe because of what they do, maybe because of the threats here and there. When the policeman said they threatened him, they were quarrelling that they didn’t threaten … How about me?

I got a letter of threats. Yes! I got a letter of threats, and the one who is threatening me does not even know the kind of person he is threatening. I got a letter. The man put his name there, his address, said if you like go anywhere. I said I don’t need to go anywhere. I will not go anywhere. But one day God will catch him. Somebody will carry a … write a letter, address it to the judge. Is that not? Let us avoid doing some things that will bring down the image of the bar and the bench. … my senior sister has been kidnapped for more than how many years. Who is saying something? I expect that the NBA in this country will down the tools and … The NBA, they just did the Yorubas will say ‘boju boju o, boju boju.’ The woman is still there; they are asking for N200 million. We made available N20 million, they said it is not enough for them. A justice of the court of law… So me I should be careless and somebody will come and shout at me, ‘hey! Amodeba has been kidnapped’ and … it is not possible.

{Lawyer: I want to apologise on behalf of…}

You were not here yesterday. I know some of you, yesterday you challenged the young man. How can you say you were a lawyer for 35 years before you became a Senior Advocate of Nigeria? Something was wrong somewhere. His antecedent is to go and shout at judges and shout at lawyers, that was why they denied him of that SAN for so many years. Because you are an SAN 2019 and then you want to come and vent your grievances on the judge … I can never be a … for the wicked man…It is rather unfortunate. But some lawyers, they were just watching him and probably clapping hands. But he gave me and I gave it back to him. You know me, my own is bumper to bumper. If you give me, I will give you back. He was shouting and shouting, I asked them to call the next case. ‘Call your case my friend…’ He packed his bag and vanished and left the court. Who won the battle now? Is it me that won? Ehn ehn now. He left and I will …

{Lawyer: I want to apologise on behalf…}

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Don’t apologise, because it is not your making. You didn’t do it. Because you people believe if somebody comes from outside the jurisdiction, he’s like this. So he’s from Lagos and so what? I grew up in Lagos. This man grew up in Lagos… senior lawyers from here. … appeared within. James Ibor appeared within. Eve appeared within. I don’t know … they walked out on me. These are lawyers within the jurisdiction. Ah ah. I’m not stating grammar. All of them walked out… they left him behind. And I told him ‘young man, you are alone here now.’ All these people … you are the one here now who is going to face the music. Where do you go from here?

{Lawyer: My lord, I am sorry to hear that such incident…}

If you are here, I know you jumped on that man. I know you are a …—cal person.

{It is rather unfortunate. However, my lord, a good dancer comprehends the …of a good drama. I am even though disappointed that lawyers of this jurisdiction were here…}

They did not say anything!

{Lawyer: … and yet they did not…}

… was here. … is a senior member of the bar.

{Lawyer: …A Senior Advocate of Nigeria at that. It is rather unfortunate. If I were here myself, I would have caused the Senior Advocate of Nigeria to know that… if at that status in our legal profession, one should exhibit such tendency, without looking back, then why should people like us be aspiring to be there? It’s a very disappointing situation. My lord, at the same time, I want to say that that development will even make my lord stronger because that gives you an opportunity to now… in the future and then get a better judgement. So sorry my lord.}

I can never subvert the course of justice. I told the young man yesterday, if you … very well, I will discharge and acquit you and the heaven will not fall. That is me. But if you don’t give me well, I will convince and sentence you and the heaven will also not fall. It is the law we are talking about here. Unfortunately for them again, they brought a late application yesterday. The man you are shouting at, that if not until I invite a verbatim recorder he will no longer appear in this matter again, how? That I did not record him very well… Eh! Sorry, let’s go on with the business of the day… I am equal to the task, and then God has given me that boldness to do what I’m supposed to do. But let it be known, I can never on this seat subvert the course of [justice].

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