Mr. Falana argues that the Chairperson of the panel is a prosecution witness in a criminal case that is before the Lagos State High Court.
The Human rights lawyer, Femi Falana, has asked the Lagos State Governor, Babatunde Fashola, to replace the Chairman of the judicial panel of inquiry constituted to investigate the cause of the July 4, destruction of at least eight BRT buses by men of the Nigerian Army along the Ikorodu Road over questions surrounding his ability to discharge the duty without bias.
In a letter to the governor, Mr. Falana argued that for the purpose of fairness, the Chairman of the panel, Ebenezer Adebajo, who is a retired judge of the Lagos High Court, should be taken off the panel because he has been listed as a prosecution witness by the Attorney General of Lagos State in a criminal case between the Lagos State Ministry of Justice versus Quadri Kasali, pending before the Lagos State High Court.
Explaining the reason for his objection of the inclusion of Mr. Adebajo in the panel, Mr. Falana said that on March 1 2012, the retired judge complained to the police that while he parked his car to greet a friend along Moloney Street, Lagos, he was hit by one Quadri Kasali who was driving a commercial bus.
From the allegation, the incident looked like a mere traffic offence but Mr Adebajo pressured the Lagos State Ministry of Justice to charge Mr Kasali for attempted murder, Mr Falana explained.
“As Mr. Kasali could not afford the services of a legal practitioner for his defence our law office decided to defend him pro bono publico. But to our utter dismay, Justice Adebajo and the Ministry of Justice ensured that the poor defendant was denied bail by both the Magistrate Court (where he was initially arraigned on a holding charge) and the High Court where he is currently being tried.
“However, we succeeded in persuading the Court of Appeal to admit the defendant to bail in the most liberal terms. Thus, Mr. Kasali was able to regain his freedom after he had been detained in prison custody for about 18 months,” Mr Falana wrote.
While the case has been transferred to the Attorney General of the state for reassignment, after the initial judge handling the case withdraw from it for personal reasons, Mr. Adebajo is expected to testify on the matter when it resumes for hearing.
“Being a complainant and the principal witness in a case of attempted murder arising from a traffic offence which is being prosecuted by the Attorney-General of Lagos State Justice Adebajo cannot be said to be independent of the Lagos State Government with respect to the conduct of the proceedings of the Judicial Commission of Enquiry into the army/civilian clash traceable to another traffic offence. In other words, his lordship’s impartiality cannot be guaranteed until the conclusion of the criminal case in which he is an interested party and which is being prosecuted by the Attorney-General of Lagos State,” he said.
Quoting the declaration of the Supreme Court on the likelihood of bias on the part of judges, Mr Falana drew the attention of the governor, who is also a senior lawyer, to a 1969 case between Metropolitan Properties Co. Ltd. v. Lannon.
“In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or at the mind of the Chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other.
The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then, he should not sit. And if he does sit, his decision cannot stand.”
Mr Falana argued that if Mr. Adebajo is allowed to preside over the panel of inquiry, while at the same time appearing as a principal witness in the case of the Lagos State Ministry of Justice versus Quadri Kasali, the public might question his credibility thereby discrediting the outcome of the panel’s findings and the decision may be successfully challenged in the Lagos State High Court by aggrieved parties or a concerned member of the public. Thus he asked the governor to replace Mr Adebajo with another retired judge.
Mr. Fashola constituted the panel on July 21, with a 30-day mandate to submit its report.