the breach or likely breach of the constitutionally guaranteed right of the third accused to fair hearing is a matter affecting the jurisdiction or competence of the trial judge or the court to exercise any adjudicatory power in the case.
Moving the application, Ojo submitted, among others, that the application was competent and timeous.
Ojo said that the alternative option would be for the third accused to, in accordance with the provisions of Section 56 of the High Court Law of Lagos, apply to the office of the chief judge for transfer but which option, according to him, does not arise, for he could predict the outcome and such decision of the chief judge would not be applicable.
Opposing the application, Osinbajo prefaced his arguments by condemning what he called the direct insults hurled at the court by the defence counsel, which he felt went beyond bound and should be deprecated by the court.
Osinbajo submitted that there was no basis for a judicial finding of bias and that the burden of proof was on the person making the accusation.
Ruling on the matter, Justice Oyewole noted that the application was one which carried far-reaching implications for the administration of justice in the country and criminal justice in particular.
Bias, he said, 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.
Considering the propriety of the court presiding over its own conduct to assess itself and give a verdict, Justice Oyewole said: "It is a fundamental principle of fair hearing that none must be a judge in his own cause and it is to forestall situations such as this that section 56 of the High Court Law, Cap H3, Laws of Lagos State 2003 was put in place, vesting the chief judge with powers to handle situations such as this."
Assuming jurisdiction over the application, Justice Oyewole noted that the first point of the third accused's complaint seemed to revolve round an application filed by him on the issue of discovery, which the court dismissed.
He ruled that the refusal to stay proceedings based on the applicable principles and the peculiar facts of the case cannot form the basis of bias.
The second part of the complaint was as to an alleged procedural unfairness in not allowing his counsel to make reference to the withdrawn counter affidavit of the SSS in that same application while allowing the prosecution to make use of it.
Justice Oyewole ruled that this was very far from the truth in that not only did the record of proceedings replete with references and arguments by Ojo, to the withdrawn counter affidavit, but also the ruling on the application contained all his references.
On Al-Mustapha's third allegation that the court had always upheld the position of the prosecution since taking over the case, Justice Oyewole said: "Again, nothing could be farther from the truth. The record of the court is replete with several applications of the prosecution that were refused by the court and this is even a non-issue, for every application is considered on its merit and the administration of justice is never based on numerical balancing."
Justice Oyewole also said a judge was not expected to be a verbatim recorder and can exercise his discretion on the content of his records and cannot therefore, subsequently abandon it or depart from it.
As for Osinbajo's vehement complaint about the "indecorous" language used by some counsel against the court, Justice Oyewole said the complaint was well founded.
He appealed to all counsel to exercise restraint in their choice of words.
The judge pointed out that the legal profession comprises gentlemen who must at all times, be decorous in their choice of language either to the court or to fellow counsel or even to litigants.
Even as the court dismissed the seventh application, four others from the accused persons are pending.
The case has been adjourned to September 22, 2004.
