OPINION: Ten questions Nigerians must ask on the use of ex parte order to suspend the Chief Justice of Nigeria

By Barrister Monday Ubani…

WHEN ALLOWED:

Ex parte orders are allowed in a situation where getting an immediate order is urgent and unavoidable and mostly in situations where damages or injuries inflicted on the property or party seeking it will not be compensated monetarily. If given, it is usually temporarily. The judge who grants must always insist on full hearing, that is hearing all the parties within a short period of time.

The essence of fair hearing is a fundamental rights enshrined in every constitutional democracy. For emphasis, ex parte orders are only allowed where getting an immediate order is urgent, really really urgent! Why this is so is because the order can be unfair and violate the due process requirement of every democratic constitution. Under the due process doctrine, both parties in every case must have the right to tell the court their own side of the story.

The President of Nigeria,President Muhammed Buhari anchored his suspension order on the CJN upon an ex parte order of the Code of Conduct Tribunal allegedly granted on the 23rd of January, 2019. Neither the CJN nor his legal team was put on notice before this order that determined rights and liabilities was given. CAN THIS PROCEDURE BE REGARDED AS CORRECT? This ex parte order elicited these ten questions:-

1. I thought that the CCT sat on the 22nd of January and adjourned its sitting to the 28th of January, 2019? Why was the CJN not put on notice for this 23rd of January proceedings in the absence of any extreme urgency that warranted the hearing of the ex parte application?

2. What was this extreme urgency in the matter of the trial of the CJN that warranted this ex parte application and relief, more so, when the said application and relief is to achieve the same purpose the trial sought to accomplish?

3. Can one really use ex parte application in law to determine the rights and liabilities of a citizen, most importantly that of a Chief Justice of Nigeria without putting him on notice?

4. Is this ex parte order liable to be set aside as is known in all rules of court? Most importantly what is the duration of this ex parte order since every ex parte order has a life span?

5. Is there any provision in the constitution, Code of Conduct Bureau Act or any other rules of court used by the CCT that allows the CCT to use ex parte order to suspend, remove or punish any public officer who is facing trial before it without going through the entire trial process as prescribed by the Act?

6. Can this ex parte be valid when before it was granted the jurisdiction of the CCT has been challenged by the legal team of the CJN and which issue has not be determined by the same court as settled by plethora of Supreme Court authorities known as precedents?

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7. Before this ex parte was granted, I thought there were several injunctive orders granted by superior courts of record restraining the CCT from going ahead with the hearing of the case involving the CJN before the CCT?

8. This ex parte was allegedly obtained on the 23rd of January, 2019 why was there no earlier report of its being granted by the court until the evening of 25th of January, 2019 when the President who was addressing the press exhibited the purported order signed by two out of the three members of the Tribunal?

9. Was this ex parte order obtained and dated the 23rd of January, 2019 to avoid a situation where it will be said that the order is illegal since the Court of Appeal has been seised of the matter since 24th of January and even made an interim order staying proceedings at the CCT? By dating it 23rd of January, 2019, CCT will likely absolve itself of any accusation of disobeying the order of the Court of Appeal! Clever move!

10. Under what law was the CJN, a head of another arm of government suspended by the President? Could it be under the 1999 constitution, or under the Code of Conduct Bureau Act, or under Interpretation Act, or under the Administration of Criminal Justice Act or perhaps under the Various Executive Orders signed before now by the President? The country is hungry to know MR PRESIDENT.

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