Chief M. K .0. Abiola V. Federal Republic Of Nigeria (1996)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

On 16/5/95 this court on a motion on notice by learned counsel for the appellant, Chief G.O.K. Ajayi S.A.N., prayed that because eight of the justices in this court had instituted an action in libel against Concord Newpapers Limited substantially owned by the appellant and as such though he was not alluding to bias by any of the justices but in the con of Nigerian Society the nicety of Concord Press and Chief Abiola being two different legal persons would not be understood.

In that case it would be wise, to avoid the notion of likelihood of bias for the eight named justices, to disengage themselves from having anything judicially to deal with the case whenever it comes to court. The panel of five, led by Bello C.J.N., ruled that the eight justices, for overriding principle of avoiding any notion of bias should no longer be involved in this case that is yet to take off on substantive issue in Federal High Court. Our self disqualification is a binding decision on this court unless a full court revisits the issue and upturns it.

But that is not what is before us now. In the matter now before us, two justices, i.e. Belgore, J.S.C. and Wali, J.S.C. who are precluded by the judgment of 16/5/95 aforementioned, are in the panel. Chief Ajayi raised by way of preliminary objection that this panel is not properly constituted to hear the motions now before the court because of the tenor of the judgment of 16/5/95. All counsel addressed us on this question.

The big issue is who is representing the appellant. One counsel filed motion to withdraw a subsisting appeal and Chief Ajayi’s objection as to competency of this panel hearing it is now to be decided. The best person to decide who represents him as counsel is the appellant, and that is his Constitutional right. To my mind the energy of the parties should be directed to the appellant to intimate his choice.

Time honoured practice is for this issue of representation to be decided by counsel after consulting the appellant, or the appellant writing to intimate his choice of counselor by any others means e.g. affidavit showing who will be his counsel. It is always a privilege, the matter of counsel-client relationship, and I do not believe it is right to involve the court in this.From the materials before us all the parties say that access is not easy to the appellant, even though no letter or application to the effect has been exhibited, but we have no reason to doubt the learned senior counsel. In the best traditions of legal practice we hope the Attorney-General of the Federation will afford counsel now claiming authority to represent the appellant the means of knowing what he (appellant) wants. This could be in the form of any three ways mentioned above

i.e. by having physical access to him to give his instructions in writing, or by his swearing to an affidavit, or even writing a letter under his own long hand to the trial court and the contending counsel.

However, I will reiterate that the judgment of 16/5/95 precludes this panel as now constituted from taking any contentious issue relating to the appeal pending in this court in respect of the appellant.

All the applications are therefore adjourned sine die as the preliminary objection is upheld.

WALI, J.S.C.: Having listened to the Ruling of my learned brother Belgore, J.S.C. I also agree that and for the reasons contained in that Ruling, the preliminary objection by Chief Ajayi S.A.N. is hereby sustained. I subscribe to the order contained in that Ruling.

OGUNDARE, J.S.C.: I agree with the Ruling just read by my brother Belgore, J.S.C. I hope and believe that the Federal Attorney-General will, in the best tradition of his office, prevail on the Executive authorities in whose custody the appellant presently is, to allow access, by counsel, to the appellant with a view not only to resolve soonest this controversy over his legal representation but also the preparation of his defence. The ends of justice require not less. And the image of this country deserves not less.

ADIO, J.S.C.: I agree.

IGUH, J.S.C.: I agree entirely with the ruling just delivered by my learned brother, Belgore, J.S.C. My only regret, speaking for myself, is that this entire controversy surrounding the appellant’s legal representation has served in no small way in prolonging the determination of the charges preferred against the appellant. I sincerely hope that the issue should be resolved without further delay to assist in the expeditious and judicious determination of the main case in the interest of all concerned.

Preliminary objection upheld

SC.246/1994