Justice Okon Abang of the Federal High Court, Abuja Division, yesterday, disqualified himself from adjudicating in a legal action instituted by the Incorporated Trustee of Oron Union, Akwa Ibom State, against the composition of the Niger-Delta Development Commission, NDDC, by the federal government.
The union had approached the court, challenging the nominations of Messrs Nsima Ekere and Frank George for appointment as Managing Director and Commissioner respectively.
It also asked the court to restrain further appointments into the board pending the outcome of the suit.
But Justice Abang handed off the case, as he returned the case file to the Chief Judge of the Federal High Court, Justice Ibrahim Auta, for reassignment to another judge.
Abang stated that his decision was borne out of the fact that both the plaintiff and the fifth defendant (Nsima Ekere) are from Oron community where coincidentally he hails from.
“Justice must not be seen to be done, but it must be seen to have been manifestly done. Considering the fact that I am from the same community with the plaintiff and the fifth defendant, it is only proper that I stay off from this case and remit it back to the chief judge for re-assignment to another judge in the interest of justice,” he said.
At the last sitting, Abang had enquired from parties to the suit who were present in court whether in their view he was qualified to preside over the case, considering that he is from the same community in dispute.
Although they all responded in the affirmative, he said he has decided not to go ahead with it.
According to him, the case will continue when judges resume from their annual vacation and will be reassigned to another judge.
But before ruling on self disqualification, the sixth defendant (Frank George) had written the chief judge of the Federal High Court, asking that Abang disqualify himself from adjudicating on the matter on the ground that he is from Oron.
He stated that his decision was not to slight the judge, but in the interest of fairness and justice.
In his reaction, Justice Abang said the party would have raised the issue during court proceedings rather than going to the extent of writing the chief judge.
Counsel to the defendant, however, tendered an apology on behalf of his client and consequently withdrew the application.
In suit no. FSC/ABJ/CS/603/2016 dated August 3 and filed on August 11, the community (plaintiff/applicant) represented by its President-General, Dr. Effiom Eduna, had told the court that the nominations of Ekere and George were wrongly made as both of them were not from the oil producing areas of Akwa Ibom State.
Counsel to the plaintiff, Mr. Jibrin Okutepa, SAN, having secured the leave of court to hear the case during its long vacation due to its urgent nature, asked the court to give an ex-parte order restraining the Senate President, Bukola Saraki, and the National Assembly from confirming the appointments.
He told the court that his application was supported by two affidavits, a 24-paragraph affidavit in support of the motion, disposed to by the president-general of the union, as well as the affidavit of urgency which was five paragraphs.
According to him, the NDDC Act sets out those qualified to be made managing director, MD, and commissioners of the board.
He added that Paragraphs 20 and 21 of the affidavit in support of the application stated that the fifth and sixth defendants were not from oil producing areas of Akwa Ibom State and as such, they were not qualified to assume positions that the federal government and the commission have forwarded their names to the National Assembly for.
Other prayers as contained in the affidavit include the fact that the appointment of the second defendant was done without regard to the provisions of Section 171 (5) of the 1999 Constitution and the provision of the NDDC Establishment Act 2004.
“As a result of the unconstitutional mode of appointment of the second defendant by the federal government, development in the Niger Delta region, national unity, national loyalty and security are threatened. That peace and development in the region are threatened as a result of ethnic and sectional marginalisation.”
The counsel therefore urged the court to grant the application in the interest of justice.
“Grant the application so that we can put them on notice, so that they will come and show us whether the fifth and sixth defendants are qualified for the positions they are nominated for”.
In his ruling, Abang stated that having carefully studied the ex-parte application argued by the plaintiff and the reliefs endorsed therein, and has listened to the oral argument of the plaintiff in asking the court for an order of interim injunction restraining Senator Saraki and the National Assembly from confirming the nominations and appointments of Ekere and George as MD and Commissioner respectively into the Board of the NDDC pending the outcome of a Motion on Notice, there is need to hear from the defendants before taking a decision.
“The injunctive order if granted is executory in nature, not declaratory. Therefore, before an impossible positive order is made, there is need to hear the other side, to hear the defendants before a decision is made.
“There is a compelling need to hear all sides. The issue is not whether the court will hear the application, but that of Sections 5 and 12 of the NDDC Act which is fundamental in nature.”
The judge added that the reliefs contained in the motion ex-parte were similar to the prayers contained in the Motion on Notice.