The strange and unjust ruling of Justice Olatoregun Ishola

By Fatoregun Olawale
On January 26, 2017, students of National Open University of Nigeria (NOUN)
were waiting for the ruling of the case between rusticated student leaders
of the Congress of NOUN Students and management of NOUN which started over
a year ago, but what came out from Justice Olatoregun Ishola’s court was an
outright rape of justice, never seen or heard before in the history of
Nigeria’s Jurisprudence. Olatoregun Ishola not only granted an unknown
application by NOUN to “arrest the judgment’’ about to be delivered for the
second time, she practically murdered justice, right inside the court of
law.
The matter was first reserved for judgment on 18th April, 2016, but
judgment wasn’t delivered due to a defective application to arrest judgment
made by the counsel to National Open University. The matter went on and on,
until the matter was eventually reserved for judgment on January 26, 2017.
However, rather than deliver judgment as expected; Justice Olatoregun
instead stabbed the students in the heart by helping the unjust benefit
from their injustice, through granting their request to arrest judgment
without any basis of law.
The ancient philosopher Plato had said “To do injustice is the greatest of
all evils’’, but according to Justice Mustapha Dahiru, a former Chief
Justice of Nigeria, “Metaphorically, an unjust judge is more harmful to the
society than a man who runs amok with a dagger in a crowded street. The
latter as you know can be restrained physically, but the former
deliberately destroys the moral foundation of the society and causes
incalculable distress to individuals, while still answering ‘honorable’”.
To say this in another way, nothing is more unjust, than the injustice
perpetrated in the court of law, by a so called judge, under the illusion
of doing justice. Justice Ishola is one of those unjust individuals,
sitting in Nigerian courts, destroying the moral foundation of our society
and still answering ‘honorable’ and if one traces the root cause all evils
in our society, there is no doubt whatsoever that injustice in high places
will most likely be number one on the list. It is the cause of all problems.
The perpetrators of these injustices hide under the guise of law, power and
authority, but more importantly, they are aware that should their act of
injustice find no law, no power or authority to cite as justification, they
can still rely on their fellow unjust partners in the justice department to
use what is now described by Justice Olatoregun Ishola of the Federal High
Court, as “personal discretion’’ in a matter already settled by the Supreme
Court as non-existent.
We all recall how National Open University of Nigeria (NOUN) illegally
expelled two leaders of  Congress of NOUN Students (CONS) namely Abdulrazaq
Oyebanji Hamzat and Elias Ozikpu for exercising their rights to free
association and expression in November 2015. The students and their
colleagues at the Congress approached a Federal High Court in Lagos to
challenge their illegal expulsion and the matter first came up for hearing
on 26th January 2016.
While the students’ counsel  has consistently followed the laid down
procedures as contained in the provisions of Fundamental Rights
(Enforcement Procedure Rules) 2009, the Open University counsel whose name
is Nas Ogunsakin appeared to be outright incompetent or deliberately
following wrong procedures to frustrate the speedy delivery of justice.
For example, where Fundamental Rights (Enforcement Procedure Rules) 2009
says:
“Where the respondent intends to oppose the application, he shall file his
written address within 5 days of the service on him of such application and
may accompany it with a counter affidavit”,
NOUN lawyer would deliberately refuse to respond as stipulated. When the
counsel eventually files his papers, it would be done in a wrong manner to
waste time and delay the course of justice. This unprofessional conduct has
led to several adjournments.
In other instances, when NOUN counsel secures adjournment, he would
deliberately absent himself from court in the next hearing date, forcing
another adjournment to be made by the court. And as this practice
continued, the matter was eventually reserved for judgment after all
written addresses had been filed in line with of Order XII Rule 3 of the
Fundamental Rights (Enforcement Procedure Rules) 2009 which states clearly
thus:
“When all the parties’ written addresses have been filed and come up for
adoption and either of the parties is absent, the Court shall either on its
own motion or upon oral application by the Counsel for the party present,
order that the addresses be deemed adopted if the Court is satisfied that
all the parties had notice of the date for adoption and a party shall be
deemed to have notice of the date for adoption if on the previous date last
given, the party or his counsel was present in court.”
It was after the matter had been reserved for judgment that NOUN counsel
felt the need to file an application to “arrest judgment’’ under the guise
of fair hearing, something unknown to the Nigerian legal system.
However, rather than throw away such baseless application and deliver her
judgment, Justice Olatoregun decided to turn her court into a temple of
injustice by granting the unknown defective application to arrest judgment
under the illusion of fairness.
The real question however is, under what authority did Justice Olatoregun
granted such unknown application? The answer is not far-fetched, there was
none. This is a perfect example of outright abuse of authority. Appeal and
Supreme Courts have consistently ruled that such application has no room in
Nigeria legal system. It only exists in Olatoregun’s discretion.
In the case of S.I.E.C. EKITI STATE VS N.C.P. (2008)12 NWLR [PT1102]733, it
was held in respect of a similar application as follows:
“The rules of court do not make provisions for an application for an arrest
of judgment which is about to be delivered by a court. An application not
recognized by the rules of court cannot be described as a proper
application. An application to arrest a judgment about to be delivered is a
cynical attempt to taunt the trial court. In the instant case, the
appellant by its application to arrest the judgment of the learned trial
court did its best to treat the proceedings of the court with disdain”
Additionally, In the case of FORGO BATTERY COMPANY LIMITED v. ALAO LAIDE
ADEBAYO & ANOR in Ilorin Division of the Appeal Court with suit number:
CA/IL/58/2013, the Court of Appeal had this to say about arrest of judgment:
“The procedure for arrest of judgment is exotic to our legal system… The
applicant herein cannot and does not have any right to rewind the
proceedings to the starting point after the appeal has been heard and
judgment reserved. His reason that he wants to inject life into the notice
of appeal seems quite funny and a gawky attempt to play hooky. The
appellants’ dread of the notice of appeal came too late in the day when the
appeal has been heard and reserved for judgment. It behooves the parties to
await the decision of the court on the merits of their respective
arguments. It is implausible for an appeal already heard to recommence all
over by extension of time to file the same notice of appeal. The fact that
date for delivery of the judgment has not been fixed notwithstanding. The
applicant cannot at this stage be heard to complain about any right to fair
hearing, which he has already enjoyed. The principle cannot be unduly
invoked by the Court in favour of one of the parties to the disadvantage of
the other party.”
And finally at the Supreme Court, in the case of Newswatch Communications
Ltd vs Alhaji Aliyu Ibrahim Atta on 28th day of April, 2006, SC.101/2001.
The apex court held about a similar application as follows:
“…the application to arrest the judgment of the Court is only a gimmick
designed to forestall the delivery of the judgment for as long as the
defendants wish… the procedure for arrest of judgment is now hardly known
in our civil jurisprudential system.”
Therefore, it is very clear that Justice Olatoregun Ishola has perpetrated
the most despicable act of injustice, by granting the application to arrest
judgment. No wonder most people prefer to take laws into their own hands,
rather than approach the court for redress.
Fatoregun Olawale is a civil rights activist based in Ondo