There are decisions in judicial proceedings which, by their very timing and context, raise unavoidable question on due process; and the recent revocation of the bail of Omoyele Sowore, coupled with the issuance of a bench warrant, in the face of a pending recusal application, falls squarely within that category.
The settled position of the law in SOWORE v. FRN (2022) LPELR-57439(CA) is clear that as much as the court has such discretion to grant or revoke bail, it must be exercised judicially and judiciously, upon relevant materials and in accordance with due process, failing which it becomes vulnerable to the charge of arbitrariness.
The material facts are not in serious contest as the matter was fixed for ruling on a recusal application challenging the continued participation of the learned trial judge, Justice Mohammed Umar. This same Justice Umar had disrespected the Bar some weeks before now, ordering Sowore’s lawyer, my egbon, Comrade Marshal D F Abubakar , Esq., to kneel down in open court; on the said date set for the ruling of the application for recusal of Justice Umar, Sowore was present in court, but the court did not sit; thereafter, Sowore addressed a formal letter to the Deputy Chief Registrar of the Federal High Court seeking clarification on the next date even suggesting dates for my lord( one the law permits), which was reportedly minuted and transmitted to My Lord; and notwithstanding this sequence, the court proceeded to revoke bail and issue a bench warrant the following day upon the oral application made by the overzealous counsel to the Department of State Services (DSS), Akinkolu Kehinde (SAN).
With respect, nothwithstanding that the court had ordered day-to-day trial, once a court fails to sit on a scheduled date, the law is settled that parties are entitled to notice of the adjourned date, as held in the case of Masta & Ors v. Yobe State Government & Ors (2020) LPELR-49810(CA) and reaffirmed in Ananike v. Akowa Microfinance Bank Ltd (2024) LPELR-80490(CA), where the Court of Appeal emphasised that fresh hearing notice becomes mandatory where proceedings continue after a failed sitting.
Against that legal background, the immediate question becomes unavoidable, that, how does a defendant (Sowore) who attended court, where the court did not sit and who subsequently sought clarification through the Registry, become the basis for a revocation of bail and issuance of a bench warrant without a clear finding of disobedience, abscondment or breach of bail conditions?
There is yet a more fundamental concern which is that, the recusal application was still pending determination; and once the impartiality of a judge has been formally challenged, prudence and the appearance of justice ordinarily require that such threshold issue be resolved before coercive orders affecting liberty are made in the same proceedings.
Finally, the necessity for a bench warrant is difficult to justify on the known facts, given that Sowore is not a fugitive; his whereabouts are public and known; and he has consistently attended court whenever required.
The real issue, therefore, is not the power of the court, but whether in these peculiar circumstances that power was exercised in a manner consistent with fair hearing, notice and judicial restraint.
That is the question the law insists must be answered.
Bolaji Oluwatosin
Ikeja, Lagos.
07031380894
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