A Legal Practitioner, Ogbom Goodluck, Esq., has faulted the decision of the Court of Appeal in striking out the appeal of the former Chief Justice of Nigeria, Walter Onnoghen, JSC, against the Ex Parte Order by the Code of Conduct Tribunal which led to his suspension.
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According to him, the Court of Appeal failed to address the issue before it. That there is no relationship between the ex CJN’s suspension and his conviction that must co-exist.
He added that 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. Quoting the famous judicial pronouncement that one cannot place something on nothing and expect it to stand, the learned counsel asked whether Justice Tanko is not standing on a collapsed building.
‘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 as the whole edifice will collapse.
If the Exparte Order was unlawfully obtained according to the Court, on what is the appointment of Justice Tanko based? Is Justice Tanko not standing on a collapsed building? Can he continue to stand on a collapsed building? I think no.
‘Again, the court was emphatic when it stated thus: “A hearing cannot be said to be fair if any of the parties is refused hearing or denied the opportunity to be heard or to present his case. Any Judgment or ruling based on a breach of the Constitution will not be allowed to stand on appeal”. See FBN PLC 15 NWLR (Pt. 1216) 247 @ 303 paragraphs A – H. The question is: on what ground is the Exparte Order allowed to stand?’ he asked.
Speaking further, he added that where in any proceedings, the rules of natural justice or the principles of fair hearing are breached, such a breach renders the entire proceedings null and void and the appropriate consequential order is one of retrial before another judge of the court or void the process, stressing that in the instant case, the Exparte Order was obtained in breach of the ex CJN’s right according to the court and so should be declared null and void.
How can it be explained that the ground upon which the breach of the ex CJN’s right to fair hearing can not be entertained, is because he has been convicted? Is conviction a condition to decline jurisdiction or to strike out 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? The Appellent conviction has nothing to do with whether or not the CJN can be removed from office via an Exparte Order. It’s a fundamental issue that require a decision on merit. It has little or nothing to do with the ex CJN.
He emphasized that his rights can not be overtaken by his conviction except the appeal is withdrawn. According to him, if the process is not defined, it becomes the law, except the Court of Appeal has now conveniently ruled 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.
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Authored by Ben Ijeoma Adigwe Esq., ACIarb (UK), LL.M, Dip. in Artificial Intelligence, Director at the Delta State Ministry of Justice, Asaba, Nigeria.
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