The Court of Appeal on
Wednesday, May 8th 2019 gave a ruling on the appeal filed by former CJN, Walter
Onnoghen, challenging the legality of the Ex parte order given by the CCT to
effect his suspension. While delivering its ruling, the Court of Appeal faulted
the ex parte order and the process it was obtained, maintaining that it affects
the right of fair hearing of Onnoghen. In holding this beautiful position, one
expected the court to flow with the fair hearing principles and make
consequential orders. But the Court committed what a witty lawyer would call
"judicial summersault" by abstaining to consider the implication of
the said position, canvassing that it would not consider the merit of the case
since the CCT has completed the trial process and found him guilty. The Court
therefore dismissed the appeal on that note.
This, to me,
is the first judicial wonder of the century! Call it a travesty of justice and
I will tell you that would be an understatement.
The Court of
Appeal committed a grave error when it failed to address the issue before it.
There is no relationship between the ex CJN’s suspension and his conviction.
These are two different issues that require different rules and principles.
The current
CJN is occupying a position that was necessitated by unlawful means based on
the finding of the court and so, the Court should have voided the process that
brought Tanko to office having found that it breached the ex CJN’s right to
fair hearing. Macfoy v UAC (1962) AC 158 is a trite law that you cannot build
something on nothing.
If the Exparte
Order was unlawfully obtained according to the Court, on what ground is the
appointment of Justice Tanko based?
Any Judgment
or ruling based on a breach of the Constitution will not be allowed to stand on
appeal. This is a trite law. I then ask again, on what ground is the Exparte
Order allowed to stand?
How can it be
explained that the ground upon which the breach of the ex CJN’s right to fair
hearing cannot be entertained, is that he has been convicted? Is conviction a
condition to decline jurisdiction or to dismiss a fundamental right case?
There is no
law to my knowledge that says the Exparte Order can only be appealed during the
pendency of the trial for it to be heard? Onnoghen's conviction is beyond
whether or not the CJN can be removed from office by an Exparte Order. It’s a
fundamental issue that requires a decision on merit. It has little or nothing
to do with the ex CJN.
Is the Court
of Appeal trying to say his rights can be overtaken by his conviction? Do we
take this as ruling that conviction extinguishes the right to appeal against a
breach of fundamental right or that conviction robs the Court the right to hear
a breach of fundamental rights?
If the last
hope of the common man is with the judiciary, it's time the judiciary rose
beyond partisanship and favouritism to take its place. Injustice to one is
injustice to all!
© Barr. Itsede K. Okhai
© Barr. Itsede K. Okhai
