*Frowns at ex-parte order used to remove ex-CJN
The Court of Appeal in Abuja on Thursday faulted the Code of Conduct Tribunal (CCT) for ignoring orders given by four High Court judges to stop the trial of former Chief Justice of Nigeria (CJN), Justice Walter Onnoghen before the tribunal.
A three-man panel of the court, led by Justice Stephen Adah, held that, rather than closing its eyes to the valid and subsisting orders meant to restrain it, the only option opened to the CCT, when the orders were brought to his attention, was to have appealed.
The panel, which delivered judgments in four interlocutory appeals filed by the ex-CJN, equally faulted the ex-parte order issued by the CCT, and on which President Buhari acted in suspending Onnoghen.
The court noted that, since Onnoghen was not yet arraigned as at January 23, 2019 when the ex-parte order was issued, it was wrong for the prosecution to have stealthily gone behind him and his lawyers to obtain an order for his removal from office.
Despite its observation, however, the court declined to set aside the order, noting that the ex-parte order was no longer of any use since the substantive trial has been concluded.
It advised parties in the case to pursue the appeal in relation to the judgment in the substantive trial.
The court also rejected the objections raised by the Attorney General of the Federation (AGF) and held that the appeals were validly filed.
It held that, as against the AGF’s contention, anyone dissatisfied with any decision of the CCT, whether interlocutory or substantive, is not required to first, obtain the tribunal’s leave before filing an appeal.
The three issues were mainly those the court resolved in favour of Onnoghen among the many issues he raised in the four appeals.
The court noted that events have overtaken most of the reliefs sought in the appeals, and proceeded to dismissed them.
Justice Adah read the lead judgment in the first appeal, marked CA/A/76C/2019, which challenged the competence of the ex-parte order granted the prosecution on January 23, 2019 and prayed that it be set aside.
Justice Adah said it was wrong for the prosecution, to have gone back to the tribunal on January 23 to secretly obtain the order, having agreed with the other parties on the previous hearing date, for an adjournment to January 25.
He noted that; “The mode of securing the ex-parte order has raised some question.” He further noted that the respondent (prosecution) went behind the appellants to obtain the ex-parte order after parties had joined issues in respect of a motion on notice earlier filed by the prosecution for the same purpose.
“Justice must not be shrouded in secrecy. The prosecution is expected to be transparent in carrying out its prosecutorial duties,” Adah said.
In declining the appellant’s prayer that the ex-parte order be set aside, Adah noted that “the ex-parte order is spent having overtaken by events. Since the appeal cannot remain in court, it is hereby struck out.”
He advised any party in the case, who is dissatisfied with the final judgment of the CCT, to pursue his appeal in respect of the substantive case, since the trial has been concluded.
Other members of the panel, Justice Tinuade Akomolafe-Wilson and Peter Ige agreed with the lead judgment.
Justice Adah, who equally read the lead judgment in the second appeal marked: CA/A/114C/2019, dismissed it for not being improperly filed and therefore, incompetent.
Adah noted that, although the appeal was directed at the bench warrant issued against Onnoghen by the CCT, to compel his appearance, the appellant omitted to include a copy of the order of bench warrant in the record of appeal transmitted to the court.
“I cannot find the order in the record transmitted to this court by the appellant. There is no supplementary record compiled. The decision of the lower tribunal, appealed against, is not before the court. There is nothing to be looked into.
“If the appeal is about the bench warrant issued by the lower tribunal, the matter has been concluded, and the appellant went before the tribunal without the bench arrant being executed.
“Since the trial has been concluded, there is nothing worth looking into any more. This appeal is dismissed,” Justice Ige said.
The lead judgment in the third appeal, marked:CA/A/44C/2019, as read by Justice Akomolafe-Wilson.
In the appeal, Onnoghen challenged the ruling by the CCT, in which it elected to the motion, with which Onnoghen challenged its jurisdiction to try him, and the motion filed by the prosecution, seeking among others, to compel the ex-CJN to vacate office while his trial lasted.
Akomolafe-Wilson dismissed the objection raised by the respondent against the appeal and held that no leave is required to file interlocutory appeal, at the Court of Appeal, against any decision of the CCT.
She also faulted the appellant’s argument that the only option opened to the tribunal was to first hear Onnoghen’s application challenging its jurisdiction.
Akomolafe-Wilson held that such assertion was not correct in the face of the provision of Section 296(2) of Administration of Criminal Justice Act (ACJA).
She said: “The totality of this appeal is based on speculation and apprehension. It is inchoate and is dismissed.
In his contribution, Adah said: “It is presumptuous, and hereby dismissed.”
Justice Ige, who read judgment in the fourth appeal,marked: CA/A/63C/2019 also dismissed it after resolving two of the three issues, raised for determination, in favour of the appellant.
Ige said the reliefs sought in the appeal, which was against the CCT’s refusal to be bound by the High Courts’ orders, could no longer be granted.
He rejected the respondent’s challenge of the appeals’ competence and held that Section 246 of the Constitution gave appellant the unimpeded right to appeal the decisions of the CCT without obtaining the tribunal’s leave.
Ige said it was wrong for the CCT to have refused to obey the restraining orders given by Justices Evelyn Maha (of the Federal High Court), Sanusi Kado (National Industrial Court), Valentine Ashi (High Court of the Federal Capital Territory) and Inyang Ekwo (Federal High Court) in January this year.
The judges had, shortly before Onnoghen’s arraignment before the CCT, issued the orders stopping the ex-CJN’s trial pending the determination of the various suits before them, challenging the competence of the charge filed against Onnoghen before the CCT.
Ige, in further faulting the CCT, said: “The law is that any judgment or ruling of any court remains sacrosanct and valid until set aside.
“The lower tribunal was bound by the orders immediately when its attention was drawn to them.
“In this case, the lower tribunal ought to have tarried awhile in order not to cause confusion.
“The option opened to them (CCT) was to have appealed the decisions. The lower tribunal cannot sit on appeal on such orders made against it.”
On the claim that the CCT Chairman made some pre-judicial statements, that breached the appellant’s right to fair hearing, Ige said Onnoghen could not prove that claim.
He noted that, although it was true that the Chairman of the lower tribunal pontificated a lot about its jurisdiction,
“I am of the view that the tribunal’s Chairman’s allusion to special status of the tribunal and its members have no relevance to the case before it.
“The appellant’s claim to breach of fair hearing has not been proved by the appellant.”
Ige upheld the CCT’s decision not to grant stay of proceedings in Onnoghen’s trial, noting that the Court of Appeal equally, on January 30 this year, failed to grant stay when the ex-CJN prayed it to.
“The reliefs sought in this appeals are not grantable. This appeal is struck out,” Ige said.
While speaking after the judgments, Onnoghen’s lawyer, George Ibrahim said his client intends to challenge the decisions at the Supreme Court.
“This is not the end of the road for my client. We will appeal to the Supreme Court.. We still have three appeals pending before this court (Court of Appeal.)
“Is it not surprising that the CCT Chairman that went about the trial with speed is yet to release copies of the final judgment to us? We are yet to get copies of the final judgement that was delivered on April 18 this year,” Ibrahim said.