Removal of Kogi CJ: You Are Unkind to Me, Judge Rules in an Application for Disqualification

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Tuesday, 28th May, 2019 was a busy day at the High Court of Justice, Kotonkarfe, Kogi State, for the court and lawyers in the the on-going case involving the three arms of the Government of Kogi State: the Legislature, Executive and the Judiciary.

The Chief Judge of Kogi State, Justice Nasiru Ajanah, and the Chief Registrar of the High Court, Alhaji Yahaya Adàmu, had approached the Court to restrain the Kogi State House of Assembly and the Governor, Alhaji Yahaya Bello, from removing the Chief Judge from office.

When the case came up on Tuesday, two contentious applications were argued and determined. The first application asked for the disqualification and recusal of the trial court judge, Justice Alaba Omolaye-Ajileye, from further adjudication on the matter, while the second application sought for a stay of execution of the court’s order nullifying the resolution of the Kogi State House of Assembly recommending the removal of the Chief Judge.

The governor and all the defendants had caused an affidavit to be sworn before the court alleging bias or likelihood of bias against the trial judge. It was stated in the said affidavit that the court sat on certain days while the Judiciary Staff Union of Nigeria (JUSUN) embarked on a strike action and shut down all courts in Kogi State. It is further alleged that the registry of the court only opened on the days the matter came up.

Secondly, the application for the Judge’a disqualification was based on what the the defendants described as ‘unusual contradictions’ in the enrolled experte order of the court of 13th December, 2018 and the ruling of the court on 2nd May, 2019.

It is further alleged in the affidavit that on the day the ruling for the nullification of the resolution of the state House of Assembly recommending the Chief Judge for removal was given, counsel to the defendants were absent in court.

In the counter-affidavit by the respondents, it was stated that Judges of the High Court of Kogi State, including the Judge of the court, are not members of JUSUN and do not go on strike. It is asserted that during the last JUSUN strike, workers of Kogi State Judiciary, on the directives of the national headquarters of JUSUN, volunteered to render services to the court in the light of the uniqueness and seriousness of the matter since the dispute in the case involves all the three arms of the government in Kogi State in order that peace and order were not disrupted in the state.

The counter-affidavit also affirmed that what was described by the applicant as unusual contradictions in the order of the court of 13th December, 2018 was a mere typographic error. It was also said that text messages were sent to all counsel to inform them of the date of the ruling of the application for nullification of the Assembly’s resolution of 2nd April, 2019.

Arguing the motion, Chief A. A. Adeniyi, counsel to the defendants, argued that in an application for recusal, what an applicant is to show is not that the Judge was indeed biased or has favoured any party above the other, but whether a reasonable man or right-thinking member of the society looking at the circumstances of the case will have an impression that the Judge was indeed biased or partial. Chief Adeniyi contended that based on the facts stated in the affidavit of the applicant, a real likelihood of bias exists. He therefore urged the trial Judge to disqualify or recuse himself from the matter.

In his response, Chief Adegboyega Awomolo (SAN), leading other two Senior Advocates of Nigeria, Tawo Tawo (SAN) and A. M. Aliyu (SAN), submitted that a party who makes an allegation of bias or lack of impartiality and applies for recusal of a Judge must prove his allegation with credible and admissible evidence. Chief Awomolo (SAN) submitted further that there must be a reasonable apprehension of bias on the part of the Judex such that a right-minded or right-thinking person can easily come to the conclusion that the Judex has not been fair and has not led the scale of justice evenly between the two parties. He contends that the facts deposed to in the affidavit of the applicant have woefully failed to establish a case of bias or likelihood of bias that would warrant the recusal of the trial Judge.

In his ruling, the trial Judge, Justice Alaba Omolaye-Ajileye, held that from the affidavit evidence before him, it was clear that there was nothing against his person, character or conduct as a judicial officer that has been brought forward by the applicants to call for his disqualification or his recusal in the case. He stated that the remark of the applicants’ counsel in his written address of his incorruptibility in the case defeats the essence of their application for his recusal. The judge held that “this application smarks of nothing but mischief and mala fide…particularly realising the fact that the application is coming on the heels of the ruling of the court that went against the applicants.” He described the allegation of bias or likelihood of bias against him as “an unkind and inarticulate step orchestrated once again to intimidate the court and obstruct the course of justice”.

The Judge hoped that the day will never come when a judge will timidly and timorously succumb, submit or surrender to the antics and intimidation of litigants who, after a ruling was decided against them, would come under the guise of an application for recusal on unsubstantiated allegation of bias or likelihood of bias.

He described as most uncharitable, the attempts of the defendants to impeach the sittings of the court now on the ground of JUSUN strike action when all counsel for all the parties participated fully in the proceedings without raising any complaint. The court held that it was unfair to use the facts of the court’s sittings during the JUSUN strike to seek for his disqualification and recusal.

He also held that the conclusion of bias or likelihood of bias by the defendants from a typographic error on a document of the nature highlighted in the affidavit is the height of frivolity and most bizarre.

In addition, it is the finding of the Judge that in so far as Adeniyi & Co were not part of the proceedings of the court as at the time the ruling of the court was delivered nullifying the recommendation of the House of Assembly, there was no way any counsel from his chambers can authoritatively assert that no hearing notice was served on the former counsel. He described the evidence of the counsel on this point as inadmissible heresay.

On his association with the Chief Judge as a judicial officer, Justice Omoaye-Ajileye held that if he was disqualified on the basis of his association with the first respondent as a judicial officer, all judges in Kogi State will be equally disqualified from hearing the case and this will defeat the inviolate legal maxim that where there’s a wrong, there must be a remedy.

On the whole, Justice Omolaye-Ajileye held that the allegation of bias, or likelihood of bias against him on the frivolous and superficial grounds presented was misplaced, vague, suspicious and mischievous such that it was not sufficient to call for his disqualification or recusal. The application was dismissed.

In the same vein, the Judge also dismissed the application for stay of execution of the order nullifying the resolution of the Kogi House of Assembly of 2nd April, 2019 on the ground that having found the House of Assembly violating his initial order, granting this application would amount to allowing the House to continue in its contempt. He also found that no special circumstance had been established to call for the exercise of his discretion to order a stay of execution of the order for nullification.

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