Two former Nigerian Bar Association (NBA) Presidents Dr Olisa Agbakoba (SAN) and Abubakar Mahmoud (SAN), as well as Chief Adeniyi Akintola (SAN) yesterday backed the non-appearance of Chief Justice Walter Onnoghen at the Code of Conduct Tribunal (CCT).
This was as a professor of law Yemi Akinseye-George described the charge of non-declaration of assets as “incompetent”.
They spoke in separate interviews with our correspondents.
Agbakoba said: “The CJN did not appear before the CCT mainly on grounds that there was no personal service of the charges, a point conceded by learned prosecution counsel.
“But more important, no one is obliged to obey an unconstitutional document or direction.
“So, as the President enjoys official immunity from prosecution by virtue of the Constitution, the CJN cannot be compelled to appear before the Tribunal in exactly the same way President Buhari cannot be compelled to appear in court as he is protected by constitutional immunity.
“The only way to proceed against the CJN is to either approach the NJC or Senate.
“In respect of the Senate, the procedure is that an impeachment process will be held.
“So, these are only two lawful methods to summon the CJN before a court,” he said.
Mahmoud said Chief Justice Onnoghen’s non-appearance at the CCT must have been based on advice from his lawyers. To him, he must have been properly advised.
The SAN added: “The charges don’t really look credible. The Bar association has condemned it and that is the correct position.”
On the CJN’s non-appearance at the CCT, Mahmoud said: “I’m sure he must have been properly advised by his legal team.”
Akintola said Chief Justice Onnoghen or any other defendant is perfectly within his legal right to not enter appearance in a criminal trial unless and until he is personally served with the charge.
He said: “The CJN’s non-appearance in court has no legal implications. In the first place, the CJN has not been served personally. In the eyes of the law, there’s nothing against him. He must be served personally.
“Again, if he has objection to the jurisdiction of the court, he needs not appear. When you look at the law, all the noise and media hype being made are of no moment.
“As far as I’m concerned, from the little I’ve read on the pages of newspapers and what transpired today (yesterday), there is nothing against the CJN until he is served.
“You can’t shave a man’s head in his absence. You have to serve him personally and he has a right to raise objections to the charge, which he has done.
“It is not peculiar to the CJN or any other accused person. The Constitution and the Administration of Criminal Justice Act say that you have to serve the accused person personally.
“In criminal trials, you must serve the accused person personally. You can’t serve information indicting somebody by proxy.”
Akinseye-George said the charges, which he described as incompetent, cannot stand in law because they were not prepared in accordance with the due process of law.
“The due process of law is that the CJN or any other judge who is still serving must first be investigated and then findings made by the NJC before he can be exposed to either the CCT or regular courts.
“We should not allow political expediency to make us truncate democracy. The rule of law requires maturity. It requires even-handedness. The judiciary has done a lot to advance the anti-corruption fight. So, this whole issue is an unnecessary distraction,” Akinseye-George said.
But, Ogun State Judicial Service Commission member Abayomi Omoyinmi said the CJN should have appeared before the CCT
“Fundamentally, the service of court summons on any defendant is a condition precedent for appearance and or response to such summons of any court processes.
“However, I believed that the CJN should have appeared before the CCT, notwithstanding that evidence of personal service of the summons on the CJN was an issue before the court.
“The CJN having been represented by eminent senior lawyers in court, one would have argued that the CJN need not have refused to appear before the court, even if personal service of the summons was not effected on him, but he has notice of the hearing against him before the CCT,” Omoyinmi argued.
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