Judge to Mustapha: I've No Reason to Disqualify Myself
By Abimbola Akosile
An Ikeja High Court judge, Justice Olubunmi Oyewole, yesterday ruled that there was no basis for the application by Major Hamza Al-Mustapha, former Chief Security Officer to the late General Sani Abacha, asking him to withdraw from hearing the case on the grounds of bias.
Al-Mustapha is standing trial along with four others for the atempted murder of The Guardian publisher, Mr. Alex Ibru.
The judge said that the application was baseless, frivolous and diversionary.
In a 30-minute ruling, Justice Oyewole, against whom Al-Mustapha had filed six grounds for his application, averred the application carried far-reaching implications for the administration of justice in the country and criminal justice in particular.
Quoting Justice Edozie of the Court of Appeal, Oyewole said, "bias is a very serious attack on the person and integrity of a judge and a counsel who decides to attack a judge on that must show concrete evidence in support of the charge".
"If it may be fairly inferred by reasonable persons sitting in court from the circumstances, that there is a real likelihood of bias against one of the parties on the part of the trial court, it must follow irresistibly that that party's right to a fair hearing had been contravened and the decision on the issue between the parties by the trial court in such circumstances cannot stand", he added.
He said that bias must be strictly proved and should not be based on mere conjecture, speculation, mere accusation or the subjective view of the party or his counsel.
"To charge a court with bias or likelihood of bias is a grave matter and the accuser must be able to establish the facts and grounds he relies upon before he can succeed in his complaint", the judge stated.
On the propriety of the court presiding over its own cause, Justice Oyewole said: "It is a fundamental principle of fair hearing that none must be a judge in his own cause, and administrative power was vested on the Chief Judge of the State to forestall and handle such situations as this. The application, is in my humble view, misdirected and incompetent".
On an alleged directive that the State would receive service of proceedings in court, Justie Oyewole said he had at various times allowed service of proceedings by defence counsel in the matter, so there was no basis to call the integrity of the court to question. He also declared that he had refused several applications by State and that each application was considered on its merit.
Replying Al-Mustapha on the correctness of court records, Justice Oyewole stated that all cases cited by Ojo had no relevance in the instant matter, as the record of proceedings in those cases were not being challenged before the trial court directly, and that a court cannot be expected to depose to affidavit before itself on its own record.
"It simply stands logic on its head. The judge is not expected to be a verbatim recorder and he exercises his discretion on content of his records and cannot therefore abandon it. In the circumstances therefore, I am precluded from considering the various affidavits filed on this issue as they are totally extraneous and inadmissible to this court as supplements to the record kept and signed by this court.
"About the supposed indecorous language used by some counsel against the court in the course of this application, I must appeal to all counsel for caution and restraint in their choice of words. Sanctions exist within the purview of the court to regulate this and there are also disciplinary measures within the profession. Counsel must never lose sight of the fact that their duties are not only to their clients but also to the court and to the profession from which they earn their livelihood", he added.
He stated that the court would not shirk its responsibilities to do justice to all without fear or favour, recognising that both the judge and the judged are subject to the laws of the Almighty and must give account. "I have searched my conscience and perused my oath of office and the code of conduct for judicial officers. I have no reason to disqualify myself from further adjudication in this case and I shall not do so", Oyewole ruled.
"My commitment to proceed expeditiously with this trial without encouraging delay is what I perceive to be in the best interest of the accused persons who have held various high public offices in this country and have stayed in custody for years.
"It is in the best interest of the complainant who also must have its complaint disposed of one way or the other, and in the overall best interest of the judicial system. In all, I hold this application is baseless, frivolous and diversionary, and it is accordingly dismissed," he added.
Although the defence counsel promised to appeal the latest court ruling, Justice Oyewole adjourned further hearing in the matter till September 22.
Al-Mustapha, currently being held in an undisclosed location by the Directorate of Military Intelligence (DMI) over allegations of breach of national security, is standing trial alongside former Army Chief, Lt. General Ishaya Bamaiyi (1st); James Dambaba, former Police Commissioner of Oyo and Lagos States (2nd); Colonel Jubrin Bala Yakubu (rtd.) former Military Administrator of Zamfara State (4th); and CSP Rabo Lawal, former Leader, Mopol Unit at Aso Rock Villa (5th).
The former CSO had earlier filed two reply affidavits to a counter-affidavit filed by the state to his earlier application on the jurisdiction of Justice Oyewole to continue hearing the matter over allegations of bias against him.
He filed the 47-paragraph affidavit of reply, and another 10-paragraph affidavit challenging the correctness of court proceedings relating to the application in court. He also alleged that the records of proceedings for July 1 did not show that the state was allowed to use same counter-affidavit filed on behalf of the SSS on January 15, 2004.
The attempted murder case has been on since accused persons were first arraigned in 1999. The attempt on Ibru's life was made on February 4, 1995, in Lagos.
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