A senior advocate of Nigeria, Mr. Femi Falana yesterday urged the Lagos state governor, Mr BabatundeFashola, SAN, to reconstitute the judicial commission set up by the Lagos State government to investigate the army/civilian clash which occurred along Ikorodu Road, Lagos on July 4, 2014 on the ground that its chairman, Justice Ebenezer Adebajo (rtd.) does not fit for the post.
In a petition to the Governor, Falana said Justice Adebajo will be biased in his assignment because he is already a witness in a case being prosecuted by the state government.
According to Falana, in the letter titled, “Request for re-constitution of the Judicial Commission into the army/civilian clash of July 4, 2014” and dated July 23, 2014, he explained that he opposed the inclusion of Justice Adebajo in judicial commission because his appointment is not in line with section 36(1) of the Constitution which stipulates that a court or other tribunal established by law shall be constituted in such manner as to secure its independence and impartiality.
He therefore urged governor Fashola to remove Adebajo from the Judicial Commission to investigate the incident that led to the alleged burning of about 3 BRT buses belonging to the Lagos State Government and the alleged killing of a soldier, while retaining other members of the panel.
Efforts to reach Justice Adebajo for his reaction failed as his phone was not reachable as at press time.
Falana stated, “the ground of our objection is that Justice Adebajo has been listed as a prosecution witness by the Attorney-General of Lagos State in a criminal case pending before the Lagos High Court. His lordship had complained to the Police that while he packed his car to greet a friend along Moloney Street, Lagos on March 1, 2012 he was hit by the driver of a commercial vehicle, Mr. Quadri Kasali.
“Even though the allegation confirmed that it was a traffic offence his Lordship caused the Lagos State Ministry of Justice to charge the suspect with attempted murder before the Lagos High Court. The case is currently being prosecuted by the Attorney-General of Lagos State on the basis of the complaint of the retired judge.
“As Mr. Kasali could not afford the services of a legal practitioner for his defence our law office decided to defend him pro bono publico. But to our utter dismay, Justice Adebajo and the Ministry of Justice ensured that the poor defendant was denied bail by both the Magistrate Court (where he was initially arraigned on a holding charge) and the High Court where he is currently being tried.
“However, we succeeded in persuading the Court of Appeal to admit the defendant to bail in the most liberal terms. Thus, Mr. Kasali was able to regain his freedom after he had been detained in prison custody for about 18 months”, he stated.
Falana stated further, with respect to the substantive case, that two witnesses have given evidence for the prosecution while Justice Adebajo is due to testify in the matter any moment from now.
Although the trial judge, Justice Balogun has withdrawn from the matter on personal grounds, the case file has been sent to the Chief Judge for reassignment to another judge who will commence the trial de novo.
“To that extent, Justice Adebajo is disqualified from heading the aforesaid Commission of Enquiry into the army/civilian clash on the ground of likelihood of bias”,
Falana stated adding, “being a complainant and the principal witness in a case of attempted murder arising from a traffic offence which is being prosecuted by the Attorney-General of Lagos State, Justice Adebajo cannot be said to be independent of the Lagos State Government with respect to the conduct of the proceedings of the Judicial Commission of Enquiry into the army/civilian clash traceable to another traffic offence .
“In other words, his lordship’s impartiality cannot be guaranteed until the conclusion of the criminal case in which he is an interested party and which is being prosecuted by the Attorney-General of Lagos State”, he stressed.
To buttress his argument on why Justice Adebajo should be disqualified, the learned silk cited several cases including Metropolitan Properties Co. Ltd. v. Lannon(1969) 2 Q.B. 167 on likelihood of bias on the part of judges and the case of The State of Lagos v Quadri Kasali (Charge No: LCD /212/2012) pending in the Lagos High Court in which Justice Adebajo has been listed as a prosecution witness his lordship will be led in evidence at the trial by the Attorney-General of Lagos State or any of the counsel assigned by him.
He argued that in the circumstance, all reasonable members of the public will believe that there will be likelihood of bias on the part of his lordship if he remains the Chairman of the Commission of Enquiry adding, “It is our submission that it offends the rules of natural justice for a witness of the Lagos State Government in a pending criminal case to be invited to preside over an enquiry set up by the Governor of the State.
Falana recalled the questionable findings of the Justice Kalu Anya Probe Panel which blamed an “unknown soldier” for the burning of the residence of the late Fela Anikulapo-kuti at Agege motor road in Lagos State on February 17, 1977.
With regards to this development, Falana urged governor Fashola to ensure that the investigation into the incident of July 4, 2014 is conducted in strict compliance with the law, “otherwise, the constitution of the Commission investigating the commotion caused by the soldiers may be successfully challenged in the Lagos High Court by any of the aggrieved parties or concerned members of the public.”
“Having regard to the facts and circumstances of the Kasali case, we urge Your Excellency to reconstitute the membership of the Commission of Enquiry in conformity with the provisions of section 36 (1) of the Constitution. As justice should not only be done but seen to have been done. Your Excellency may wish to replace Justice Adebajo with another retired judge as the Chairman of the Commission”, he stated.