Appellant’s Brief of Argument has been filed in an appeal against the decision of Calabar Judicial Division of the Federal High Court refusing to enforce the fundamental rights of Honourable Justice Akon Ikpeme when the Cross River State House of Assembly refused to confirm her as Chief Judge of the State on discriminatory ground that she poses a security risk, not being an indigene of the State.
The Appellants are Kunle Edun, Esq., the current Publicity Secretary of the Nigerian Bar Association, Ike Augustine Esq, an Owerri based legal Practitioner, Emmanuel Ewere, O. Adams Ochuagu and Adedapo Adejumo, Abuja based legal Practitioners while the Respondents are Speaker of the Cross River State House of Assembly, Cross River State House of Assembly and Government of Cross River State.
In the Brief made available to TheNigeriaLawyer (TNL) settled by Chief Ferdinand Orbih, SAN, Femi Falana, SAN, Anthony Malik, SAN, Daniel Kip, Assam and other lawyers, the Appellants formulated two issues for determination:
“a. Whether the Learned Trial Judge was right to have held that there was nowhere in the Appellants’ claim or exhibits that showed that the basis for which the Respondents’ refusal to confirm Hon. Justice Akon Ikpeme as the Chief Judge of Cross River State was due to her place of origin. Distilled from Grounds 1, 3 & 4
“b. Whether the Learned Trial Judge was right to have discountenanced and not attached any probative value to Exhibits 1 & 2 attached to the Appellants affidavit, but relied solely on the Respondents’ Exhibit CRS1 in determining basis for the Respondents’ refusal to confirm Hon. Justice Akon Ikpeme as the Chief Judge. Distilled from Ground 1”
The Appellants contended that of the two Exhibit they attached to the Affidavit in support of their application before the lower court, Exhibit 1 was a report recommending the confirmation of Justice Ikpeme as Chief Judge of Cross River State while Exhibit 2 opposed her confirmation. They said none of the Exhibits was challenged as fake or not emanating from the second respondent (Cross River State House of Assembly).
Citing a case in support of their argument, they said “what is admitted needs no further proof”
They also argued that an appeal court can employ its powers to interfere with the evaluation of documentary evidence by a trial court. They relied on the case of
CPC & ANOR V. OMBUGADU & ANOR (2013) LPELR-21007(SC) where the Supreme Court held as follows:
“An appellate Court enjoys the same position as the trial Court in evaluation of documentary evidence as in this case where the controversy is limited to the interpretation of the documents. Where the findings of the trial Judge on documentary evidence is perverse an appellate Court will employ its appellate power to correct the perversity. See Iwoha v. Nipost (2003) 4 SC (Pt 11) p.37; Egba v. Ogodo (1984) 1 SCNLR 372; Whyte v. Jack (1991) 2 NWLR (Pt.431) 407; Audu v. Okeke (1998) 3 NWLR (Pt.542) 373.” Per NGWUTA, J.S.C. (Pp. 63-64, Paras. G-B)
They therefore urged the Court to reevaluate the Exhibits.
On issue for determination number two, the Appellants vehemently contended that the trial court was wrong to have discountenanced and not attach any probative value to Exhibits 1&2 attached to the Appellants affidavit, but relied solely on the Respondents’ Exhibit CRS1 in determining basis for the Respondents’ refusal to confirm Hon. Justice Akon Ikpeme as the Chief Judge.
The crux of their argument on the second issue is that the trial court ought to have considered all the sequence of events that took place in the House of Assembly. If the court had done so, it would have found that the House rejected Justice Ikpeme on the basis of Exhibit 2
“The House did not reject Exhibit 2 during its deliberations on the 2nd of March, 2020 as falsely claimed by the Respondents at paragraph 8 of the same Counter-Affidavit. Paragraph 10 shows clearly that the Respondents adopted, relied on and voted in favour of Exhibit 2 referred to in the said paragraph as the dissenting report. For it was in Exhibit 2 that dissenting security concerns were raised about the Nominee for the position of Chief Judge of Cross-River State. Those “security concerns” as we saw under issue one of this brief, were based on the fact that the Hon. Justice Ikpeme was not an Indigene of Cross River State. If indeed Exhibit 2 was rejected by the House, how come that the same Exhibit was used by the House to ground its non-confirmation of the nominee? Moreso, when there was no other report apart from Exhibit 1&2 before the House that day. Surely the Respondents should not be permitted to speak from both sides of their mouths on this issue.” the Appellants argued
The Appellants therefore urged the court to allow the appeal and set aside the decision of the trial court.
TNL recalls that the Cross River State Government has been enmeshed in controversy over the appointment of a substantive chief judge of the state.
The most senior judge in the state, Akon Ikpeme, who ought to be appointed the chief judge in accordance with the Nigerian Constitution and legal tradition, was disqualified by the state assembly allegedly because of her family ties with neighbouring Akwa Ibom.
Cross River governor, Ben Ayade, instead nominated the second most senior judge, Maurice Eneji, to replace Ms Ikpeme as acting chief judge, an action which lawyers in the country said is unacceptable.
It is against the backdrop of the foregoing that the Appellants before the trial court sought an order enforcing the right to freedom from discrimination of the said Justice Ikpeme.
The reliefs read:
“1. A DECLARATION that Hon. Justice Akon Ikpeme is a citizen of Nigeria and entitled to be appointed to any office in Cross River State by virtue of her citizenship and is guaranteed the right to freedom from discrimination by the Constitution of the Federal Republic of Nigeria 1999 (as amended).
“2. A DECLARATION that the Non-Confirmation of Hon Justice Akon Ikpeme as the substantive Chief Judge of Cross River State by the Cross River State House of Assembly solely on the basis that she is not from Cross River State is unlawful, unconscionable, discriminatory and amounts to a gross violation of her constitutionally Fundamental Human Rights to freedom from discrimination.
“3. A DECLARATION that the non-confirmation of Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State by the Cross River State House of Assembly on the basis that she is not from Cross River State and therefore a security risk is a violent contravention of her Fundamental Human Rights to freedom from discrimination.
“4. AN ORDER setting aside the decision of the Cross River State House of Assembly made on the 2nd of March, 2020 as to the Non confirmation of Hon. Justice Akon Ikpeme for being a nullity as same is in gross violation of her fundamental right to freedom from discrimination.
“5. EXEMPLARY AND SPECIAL DAMAGES in the sum of N50,000,000.00 (Fifty Million Naira only) against the Respondents jointly and severally for the untold hardship and public ridicule/humiliation suffered by Hon. Justice Akon Ikpeme as a result of the violation of her right to freedom from discrimination.
“6. AND for such further or other Order(s) as this Honourable Court may deem fit to make in the circumstances of this application.”
The suit failed, hence, the instant appeal