March 16, 2015
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- Law News
The line, “justice must be done”, seems to have become the mantra of a former governor of Adamawa State, Murtala Nyako, as he runs against time in his legal battle for his return to office after his impeachment on July 15, 2014.
Had he not been impeached, his second tenure in office would expire on May 29, 2015.
All his attempts last year to stop the impeachment proceedings of the panel which recommended his impeachment had failed.
He had also, after he was impeached by the state House of Assembly on July 15, filed about two cases challenging both the proceedings of the impeachment panel which recommended his removal from office and the proceedings of the state House of Assembly which passed the resolution for his removal.
The cases had made little or no progress since they were filed in August 2014.
In November 2014, Nyako, through his counsel, Mr. Olukoya Ogungbeje, approached the Federal High Court in Yola with another suit filed under the fundamental human rights procedure alleging that he was denied fair hearing by the impeachment panel which recommended his removal.
The respondents in the suit are the Adamawa State House of Assembly, the Chairman of the impeachment panel, Mr. Buba Kaigama and the Inspector General of Police.
Luckily for the former governor, the presiding judge, Justice Bilikisu Aliyu, heard the matter on February 2, and adjourned till February 12 for judgment.
However, since the day after the hearing of the suit, it has been a tale of one controversy or the other.
It started with the application by the Chief Judge of Adamawa State, Justice Ishaya Banu, seeking to be joined as a co-defendant in the suit.
But Aliyu dismissed Banu’s application on the grounds that he was not a necessary party in the suit.
But the displeased Banu, through his lawyer, Mr. Festus Keyamo, headed for the Court of Appeal and subsequently sought an order to stay the proceedings before Aliyu.
What Nyako, through his lawyer, Ogungbeje, had considered troubling about the desire of Banu to join the suit as a party was that Banu “had refused to hear” an earlier suit filed in August 2014, before him.
It was this impediment that led the former governor to file the suit before Aliyu, in which judgment was subsequently reserved till February 12.
But the case took on a new twist when a party in the suit was said to have written a petition concerning the suit on February 3 and on the account of that the Chief Judge of the Federal High Court, Justice Ibrahim Auta, later called for the case file.
The events that followed Banu’s intention to join the suit, including the controversial withdrawal of the case file by Auta from Aliyu have not helped the image of a judiciary that is struggling to gain the confidence of the ordinary man on the street.
CJN, NJC petitioned
On February 18, Nyako, through Ogungbeje, asked the National Judicial Council and the Chief Justice of Nigeria, Justice Mahmud Mohammed, to probe Auta’s handling of the case.
Ogungbeje and the former governor’s media aide, Alhaji Ahmad Sajoh, while addressing journalists in Abuja, accused Auta of seizing the case file to stop the delivery of judgment in the case.
But the Chief Registrar of the Federal High Court, Mrs. Rosemary Oghoghorie, had, in a reaction to the allegation, insisted that the case file was not seized but that the Chief Judge only “called for” it to clear a petition dated February 3, 2014 written to his office by a party in the suit.
“Until the petition is treated, the file will not be released. The judge handling the case has not responded to the petition and until that is done, the case file will not be released. That is the right procedure to follow,” Oghoghorie said.
She added that another twist had been introduced into the case with a stay of proceedings granted by the Court of Appeal in Yola on February 17.
“The stay of proceedings supersedes everything. So even if the CJ releases the file today, he cannot ask the judge to go on. But I want to tell you that the CJ has not seized the file, he has not interfered with the case,” she added
However, the same stay of proceedings had now been set aside on March 10 by the appellate court’s ruling on the main application for stay of proceedings filed by Banu.
In a unanimous decision of the appeal panel, the appellate court held that the application for stay of proceedings after a case had been fixed for judgment was unknown to the law.
Justice Olukayode Bada ruled in his lead judgment, “In my view, this application is intended to arrest the judgment of the court below. As at the time this application was filed in this court, there was nothing left in the proceedings of the lower court except the delivery of judgment so reserved.
“The position of the law is that this type of application is not recognised by the Court of Appeal Rules, 2011, and our laws in Nigeria. As a result, the application is incompetent.”
But the appellate court also knocked Justice Aliyu for being in a hurry to hear and determine the case.
Ogungbeje had insisted that the call for the case file was unnecessary; arguing that what the CJ ought to have done was to allow Aliyu to deliver her judgment as scheduled while the CJ should have encouraged the petitioner to go on appeal against the judgment if dissatisfied with it.
The lawyer added that Auta ought to have, in the alternative, treated the petition with dispatch.
His petition sent to the NJC and the CJN on February 13, 2015, read in part, “Our concern is, why would the respondent’s counsel, a senior member of the Bar, write a frivolous petition ostensibly to forestall the delivery of the court judgment? Why would counsel, who had argued and adopted their processes before the court adjourned for judgment, not want judgment delivered? Why?
“Whose interest is Justice Ibrahim Auta serving by obstructing, forestalling and arresting the reserved judgment of the court on February 13, 2015? Why would Justice Ibrahim Auta put the cart before the horse by having the case file transferred and seized before treating the supposed frivolous petition to his office?”
In a separate petition also sent to the CJN and NJC on February 13, Ogungbeje also sought the probe of Banu, “for showing questionable interest in the case.”
The petition read in part, “My Lord, we state most categorically that this is the first time in the annals of our judiciary for a serving judicial officer in the person of the Chief Judge of Adamawa State (Justice Ishaya Banu) to want to join in the fray of litigation involving politicians.
“Our concern is what is the interest of Justice Ishaya Banu in the above mentioned suit? Why does Justice Ishaya Banu want to join in the above mentioned suit when he is presently adjudicating on another case involving our client at the Adamawa State High Court if though if though at slow and snail pace? Whose interest is Justice Ishaya Banu serving? Why has Justice Ishaya Banu turned politician overnight?
Why is another matter involving our client before Justice Ishaya Banu at snail speed?”
Justice Auta sued
Ogungbeje, had subsequently filed a suit marked, FHC/CS/217/15, before Justice Ibrahim Buba of the Lagos Division of the Federal High Court, seeking leave to apply for an order of mandamus compelling Justice Auta to release the case file to Aliyu to allow the delivery of the reserved judgment.
The action was instituted against Auta in both his personal and official capacities.
But the trial judge, Justice Ibrahim Buba, on March 5, refused to grant Nyako the permission to apply for a mandamus order compelling Auta to return the case file to Aliyu to deliver judgment in the matter.
Buba, held that Auta, by virtue of Section 63 (1) of the Federal High Court Act, enjoyed immunity and could not be held liable for any act he carried out or ordered to be carried out while discharging his judicial responsibility.
Buba also faulted the filing of the application in Lagos rather than in Abuja, where Auta’s office is situated, but he said he would not transfer the application to Abuja so as to stop Nyako from “doing the impossible”.
In the affidavit filed in support of the application and deposed to by one Adekunle Adegunle, the deponent averred, “That the respondent (Auta) has connived and colluded with the respondents in the case (Kaigama and others) to deny the applicant justice.
“That the suit is time-bound as the tenure of the office of the applicant is due to expire on May 29, 2015.
“That the respondent hatchet plot is to obstruct the wheel of justice, forestall the delivery of the court judgment and postpone the evil day till after May 29, 2015 when the tenure of the applicant would have expired.
“The respondent is bent on frustrating the case of the applicant in a bid to render the outcome of the case academic.
“The respondent, who ought to be fair, independent and unbiased, is now being used as a tool by the respondents to frustrate the case of the applicant, render the outcome of the applicant’s case academic and deny the applicant of justice.’’
Case transferred to Bauchi
The case file has now been released but transferred to the Bauchi Division of the court.
It is still unclear whether the new court where the CJ transferred the matter to would hear the matter afresh.
It is also not known whether the decision of the CJ to transfer the matter to a new court was connected to his findings on the said petition about the suit.
What happens next?
With the case transferred to Bauchi and date for further proceedings fixed for March 17, observers can only wait to watch as events unfold.
Meanwhile, Ogungbeje had written Justice M.G. Umar of the Bauchi Division of the Federal High Court not to entertain the suit on the grounds of lack of jurisdiction.
His letter dated March 12, 2014 informed Umar that his court lacked jurisdiction to entertain the suit.
The lawyer therefore urged the judge not to hear the case but to order it to be transferred back to Yola
The letter was titled, ‘Passionate request for the transfer of the case file to the Federal High Court Yola, Adamawa State on jurisdictional grounds’.
The letter read in part, “My Lord there is no gainsaying the fact that the cause of action that gave rise to the present suit arose in Adamawa State. There is also no doubt that the applicant and the respondents are based in Adamawa State.
“There is also no scepticism that the right to fair hearing of the applicant was infringed upon by the respondents in Adamawa State without saying that there are plethora of authorities on the present suit before my lord.
“My Lord, it is our humble submission again that there are jurisdiction issues inherent in all ramifications on the above mentioned suit being in the wrong division.”
While urging the court to transfer the case to Yola Division to enable Justice Aliyu to deliver the reserved judgment, Ogungbeje expressed his client’s readiness to accept whatever the verdict of the Yola Division would be.
NJC’s action unclear
Our correspondent scould not ascertain from sources as of Friday whether the NJC or the CJN had taken any action on Nyako’s petitions.
I have no comment –Keyamo
When contacted for his comment on the developments in the case, Keyamo, who represents Banu at the Court of Appeal, said it was unethical for him to talk about a matter pending in court.
“It is unethical and unprofessional to talk about it since it’s already in court,” he said
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