IN THE SUPREME COURT OF NIGERIA
ON TUESDAY, THE 21ST DAY OF MAY 1996
ABIOLA ............................................ APPELLANT/APPLICANT
FEDERAL REPUBLIC OF NIGERIA ......................................... RESPONDENT
BEFORE: Salihu Modibbo Alfa Belgore; Abubakar Bashir Wali; Michael Ekundayo Ogundare; Yekini Olayiwola Adio; Anthony Ikechukwu Iguh , JJSC
Whether the Justices of this Court should disengage themselves from having anything to do with the case when it comes to court?
The Justices of this Court had instituted an action against Concord Newspapers Limited which was substantially owned by the appellant.
1. On self disqualification of Justices
That the 16 May judgment did preclude the panel, as constituted, from involving itself in any issue relating to the appeal pending in this Court in respect of the appellant.
Chief G.O.K. Ajayi, SAN, (with him Alao Aka-Bashorun; Oye Ogedegbe and F. O. Desalu. (Miss) for the appellant/applicant
Chief F.R.A. Williams SAN, (with him, Chief Afe Babalola SAN, Ladi Williams SAN., L.O. Fagbemi, O. Ojo, A. O. Jagun, O. Olowolafe, (Miss) and A. Adenipekun) for the applicant/respondent
Tochukwu Onwugbufor, Solicitor-General of the Federation (with him A.D. Sodangi, C.I. Okpoko, (legal officer) Usman Mohammed Rama Shehu (Legal Officer) and Grace Inyang) for the respondent
Belgore, JSC (Delivered the Leading Judgment):- On 16 May 1995, this Court on a motion on notice by learned Counsel for the appellant, Chief G.O.K. Ajay SAN, 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 context 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 CJN, 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, JSC and Wali, JSC who are precluded by the judgment of 16 May 1995 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 May 1995. 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 Counsel or by any others means eg 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 May 1995 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, JSC:- Having listened to the Ruling of my learned brother Belgore, JSC. I also agree that and for the reasons contained in that Ruling, the preliminary objection by Chief Ajayi SAN is hereby sustained. I subscribe to the order contained in that Ruling.
Ogundare, JSC:- I agree with the Ruling just read by my brother Belgore, JSC. 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, JSC:- I agree.
Iguh, JSC:- I agree entirely with the ruling just delivered by my learned another, Belgore, JSC. 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.