March 2, 2024

William Shakespeare and Osun Judiciary – Tragedy of Errors

By Henry Agbabiaka

If what is currently happening in Osun State Judiciary is a Nollywood movie, the producers and the scriptwriters would have been roundly condemned for their lazy imagination and brazen lack of creativity. Or how else could one describe a situation where the Judiciary – the last hope of the common man – has been in coma without a discernible head for the past few weeks.

It is unthinkable, at least for any thinking human being, that the Judiciary of a State could exist without a leader – substantive or otherwise – for weeks. Even at the peak of the Military Era, the Judiciary is always treated as the sacred cow that must not be sacrificed at the altar of politics.

It is no longer news that His Lordship Honourable Justice Adepele Ojo has been directed to “step aside” from the office of the Chief Judge of Osun State by the State House of Assembly. This was premised on a petition allegedly written by a group which called itself Concerned Citizens accusing His Lordship of corruption. The decision taken by the House was “to allow for proper investigation of the allegations…”

It is also no longer news that the House of Assembly directed the Governor of Osun State, Ademola Adeleke, to swear in the most next judge in the state judiciary as the acting Chief Judge.

It was premised on the foregoing that the embattled Chief Judge had approached the Court for intervention for the purpose of salvaging her career. The Court did not hesitate before granting His Lordship an order of interim injunction on 16 November 2023 which restrained the Governor of Osun State from interfering with the office of the Chief Judge of Osun State.

As later events were to show, it appeared that the State Government had taken a defensive position and was not ready to abide by the orders of the Court. The government invited the most senior judge to the Government House to be sworn in as the acting Chief Judge. It is gratifying that the next in rank to the Chief Judge was not ready or willing to be used as a sacrificial lamb. His Lordship refused to make himself available to be sworn in. This singular action has gone a long way to redeem the image of the Osun Judiciary. The judges of the State must be commended for toeing this path of honour, and if public opinion is anything to go by, they are being commended for the neutral role they have decided to play in the saga.

This is not only natural having regard to the settled position of the law as decided in the case of Nganjiwa v FRN (2017) that any misconduct attached to the office and functions of a judicial officer must first be reported to and determined by the National Judicial Council (NJC). One then wonders where the House of Assembly -an assemblage of lawmakers – got the legal advice that it had the power to direct a Chief Judge to ‘step aside’.

One could only have imagined the implication for the judiciary if the most senior judge or even any other judge in the judiciary for that matter had accepted the Greek gift offered to them by the Legislature. The judiciary would have undoubtedly become the laughing stock in the country.

It was therefore a surprise, and not a pleasant one at that, to learn that miffed by the decision of the State Government, Justice Ojo had been granted another interim injunction by the National Industrial Court– the second in the series. This time around, the NIC granted an order “setting aside and nullifying every action or thing done or caused to be done in contravention of the Order of this Court issued on 16/11/23.”

The order did not end there. An order of interim injunction was also granted “restraining Hon. Justice David Afolabi and/or any other judge in the Osun State Judiciary from taking up the appointment as the acting Chief Judge of Osun State pending the hearing of the motion on notice before the Court.”

If William Shakespeare – the redoubtable English playwright – were to be alive today to witness the events which are unfolding in Osun Judiciary, he would not have hesitated to dub it “A Tragedy of Errors”. This is because there is nothing comical about the sacrilege we are all witnessing in Osun State.

In the first place, does the House of Assembly have the constitutional power to suspend a judge or direct a judge to step aside? It is significant to point out that the Supreme Court in Elelu-Habeeb & Anor v AG Federation & Ors (2012) has clearly stated that the Chief Judge of a State cannot be removed under any guise including the infamous “step aside style” by the State Government without recourse to the NJC.

The second issue is whether a Court of law could grant an order against a person who is not a party to the proceedings before it? It is instructive to note that the four listed defendants in the suit filed by His Lordship are the Governor of Osun State, the Attorney General of Osun State, Osun State House of Assembly and Accountant General of Osun State. None of the judges of the State High Court is a party to the case. One therefore wonders the basis upon which the Court granted the orders against their Lordships.

It is the law that an order of court made against a person who is not a party to the proceeding is a nullity and of no effect. In the case of Alioke v. Oye & Ors [2018] the Supreme Court held that: “…an order made against a person who was not a party to the action before the court, though not a nullity, is to no avail. It cannot stand the test of time and is not binding on such non-party to the action.”

It is again clear that the order of the Court against the judges of the Osun State is another tragic error which is calculated to drag the jurists into the judicial bullring. It is a needless order and it is unnecessary having regard the fact the conduct of these judges -as exemplified by the decision of the most senior judge not to appear for the scheduled swearing in -has been blameless and commendable. So one may ask, why would the Chief Judge want to drag her colleagues who have maintained a dignified position into the matter?

It has been stated above that Judiciary is the last hope of the common man. It is also an indubitable fact that Judiciary is the only institution that does not change -irrespective of the governance system in place, be it military or democracy. Judiciary is always constant. It is therefore in the interest of all that we do not allow the judiciary to be dragged in the mud of ignominy. Judiciary is the golden door through which citizens must pass to access the temple of justice, the fundamental question is this shall we allow this door to be closed against the people?

For how long, we ask, shall the Osun State Judiciary, like a rudderless ship, be without a head?

Henry Agbabiaka
For: Concerned Justice Sector Stakeholders

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