By NBF News

There is something patently incongruous, to say the least, in the injunction granted by Justice Paul Onamade against the Ogun Truth Commission on Thursday, October 27, 2011..

Former governor of Ogun State, Engr. Gbenga Daniel, had approached the Ogun State High Court, Abeokuta to restrain his successor, Senator Ibikunle Amosun, from probing, through the Ogun State Truth Commission, the reports of killings, maiming, kidnapping, disappearance of persons and wanton destruction of properties between January 2003 and May 2011, with a view to determining whether the acts 'involved the abuse or misuse of power by any person or persons holding public office or by any person or persons acting under the control or authority of such public office holder.'

For the sake of the ordinary readers, some points need to be clarified here. Generally, there are no restrictions or limitations on the supervisory jurisdiction of the High Court or any court of records on Administrative Tribunals and Inquiries (inferior courts) such as the Ogun State Truth Commission, especially on points of law. Such supervisory jurisdiction is exercised by means of prerogative orders otherwise known as certiorari, prohibition and mandamus. However, it must be clearly underscored and understood that these orders are not available to any applicant as of right but only granted at the discretion of the courts. In order words, they can be denied by the courts.

Any governor of Ogun State, according to Section 2 (1) of Ogun State Commissions of Inquiry Law, has the power to set up a Commission of Inquiry or in the instant case, the Ogun State Truth Commission. 'The Governor may, whenever he shall deem it desirable, issue a Commission appointing one or more Commissioners, and authorizing such Commissioners, or any quorum of them therein mentioned, to hold a Commission of Inquiry into the conduct of any officer in the public service of the State, or of any chief, or the management of any department of the public service, or of any local institution, or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare…'

Order 40 Rule 3 (4) of the High Court Rules provides that 'The Judge shall not grant leave unless he considers that the applicant has a sufficient interest in the matter to which the application relates.'

It is definitely clear that the applicant, Otunba Justus Olugbenga Daniel, was one of the many thousands of public office holders in Ogun State in the years under review. There is no evidence that he will be called upon by the Truth Commission, which had not even held its first sitting as at the time of the injunction, to testify. Nobody has even, before the Commission, accused him of any offence. He could therefore not be said to have demonstrated 'sufficient interest in the matter'.

It is clear from the above that Justice Onamade never considered Order 40 Rule 3 (4) before granting Daniel the leave to apply for judicial review. This is a monumental error of judgement and raises serious question on the exact intention of the judge. From the exact words of the judge above, it is clear that any Tom, Dick, or Harry could come forward to pick up the leave of the court once such fellow is 'coming under Order 40 of the Rules of this Court.' It does not matter whether the Tom, Dick, or Harry has the locus to approach the court for a leave.

Justice Onamade also left himself open to serious criticisms in his decision to further restrain the Ogun State Truth Commission from sitting 'until the final determination of the Motion on Notice'. Let me quote the exact words of the judge.

'By the provisions of Order 4o Rule 3 (6) (a) of the Rules of this Court, this grant of leave shall operate as a Stay of Proceedings on the Ogun State Truth Reconciliation Commission until the final determination of the Motion on Notice.' (Emphasis supplied)

Now, Order 40 Rule 3 (6) says 'Where leave to apply for judicial review is granted, then: (a) if the relief sought is an order of prohibition or certiorari and the Judge so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Judge otherwise orders.' (Emphasis supplied)

It is patently clear from the provision of Order 40 Rule 3 (6) (a) that the grant of leave does not automatically operate as a Stay of Proceedings as Justice Paul Onamade erroneously believed. It would have been preposterous for 'a grant of leave' to be synonymous with 'a Stay of Proceedings'. The grant of leave is one event, however wrong it is – in the instant case. But if the Judge so directs, a Stay of Proceedings can be granted. In order word, it was Justice Onamade that, of his own discretion, stopped the Ogun State Truth Commission from 'further/any' proceedings.

In recent years, the Chief Justices of Nigeria have warned against the issuance of frivolous injunctions or ex-parte orders, on account of which some judges have been dismissed by the National Judicial Council (NJC). The law should be used to reform the society and not to aid and abet impunity.

Adegbuyi writes from Okota, Lagos.