In Honour of Retiring Justice Oyebisi Folayemi Omoleye, JCA

In this tribute, learned Senior Advocate, Femi Falana, combines appreciation and stock-taking. He assesses the record of Honourable Justice Oyebisi Folayemi Omoleye, JCA as she retires from the Bench, having attained the mandatory retirement age of 70: the defence of judicial independence under political pressure, the insistence on substantial justice over technicality, and a line of human rights decisions on detention, frozen accounts, ouster clauses and access to court. He also notes where her Ladyship took a more conservative view, particularly on public-interest litigation and joint fundamental-rights applications

Introduction

Retirement from judicial office is ordinarily a moment of transition, but it is also an occasion for taking stock. A Judge leaves behind more than the office occupied, or the number of judgements delivered. What ultimately constitutes a judicial legacy is the quality of the questions confronted, the fidelity with which the law was applied, the courage to determine difficult controversies, and, above all, the extent to which the judicial process remained an instrument for the vindication of justice. It is by these standards that Justice Omoleye’s years on the Bench, deserves recognition.

A Trail Blazer

In a patriarchal society like Nigeria, it is not an easy task for women to reach the apogee of their career. But, by dint of hard work and dedication to duty, the Honourable Justice Oyebisi Folayemi Omoleye made history in the Judiciary, when she was appointed the first female Judge in Ekiti State before rising to become the first female Chief Judge. Her appointment paved way for future generations of women. Because Justice Omoleye had blazed the trail, Ekiti State produced another female Chief Judge in the person of Justice Modupe Fasanmi, JCA who has since retired from the Court of Appeal.

 To Justice Omoleye’s credit, the Ekiti State Judiciary has since continued to record a significant increase in the appointment of female Judges to the High Court, Customary Court of Appeal and the Magistrate Courts. Indeed, her Ladyship’s daughter, Justice Oyinkansola Oluboyede, is a serving Judge in Ekiti State. As a chip off the old block, she is consciously following the footsteps of her mother in every material particular.

Her Audacity, Candour, Resilience and Integrity 

It is however, pertinent to recall that during her tenure as Chief Judge of Ekiti State, Justice Omoleye navigated unprecedented political challenges, including attacks against the institution of the  Judiciary and its officers. But, she displayed exceptional audacity, uncommon candour and rare resilience in maintaining the independence and impartiality of the State High Court, despite the external pressures. On the basis of her meritorious service in the Ekiti State Judiciary, Justice Omoleye was appointed a Justice of the Court of Appeal in 2006. For the past two decades, she has performed her duties in the Court with discipline, honour and integrity.

 As we mark her 70th birthday and retirement from the Bench, we know that Justice Omoleye has served the country with unflinching fidelity to judicial oath of office. Her Ladyship’s judicial career has traversed a considerable range of legal disputes, including commercial, electoral, criminal, land, administrative and constitutional matters. 

Some Human Rights Cases

Yet, of particular interest to those of us engaged in the practice and advancement of human rights is her immense contribution to the jurisprudence concerning the protection of fundamental rights, and the limitations imposed upon public authorities in Nigeria. In several human rights cases, Justice Omoleye demonstrated that fundamental rights are not merely declaratory aspirations, but rights for which effective remedies must be made available in a constitutional democracy where security agencies frequently exercise coercive powers with impunity.

 I was privileged to have appeared before her Ladyship, in a number of cases. I can confirm, without any fear of contradiction, that she created a type of jurisprudence that talked directly to the needs of the people. Her Ladyship regularly insisted that technical and abstract justice, must give way to substantial justice. In the case of Osalumhense v Ahoro  (2005) 16 NWLR (Pt.951) 2004, Omoleye JCA opined that “Nowadays, the  courts have shifted away from the orthodox method of narrow technicalities approach to justice. The weight of judicial opinion is now predominantly in favour of a court doing substantial justice, rather than undue adherence to rules of courts and technicalities”.

 In her leading judgment in the case of State Security Service & Anor v El-Rufai (2018) LPELR-45080(CA), Justice Omoleye upheld the decision of the lower court on the illegality of the detention and restriction of movement of the Respondent by the Appellant. She further held that fundamental rights are higher than other laws in the hierarchy of superiority of laws and that procedural technicalities or standard limitation laws cannot prevent an aggrieved citizen from seeking legal remedy for an infringement of fundamental rights. It was the view of Omoleye JCA that constitutional rights are not merely declaratory aspirations, but rights for which effective remedies must be available under a democratic dispensation.

Justice Omoleye’s participation in cases concerning personal liberty and the powers of law-enforcement agencies, demonstrates the continuing tension between the legitimate interests of the State in investigating crime, and the equally legitimate obligation to protect citizens against arbitrary arrest, detention and other forms of coercive state action. Thus, in Guaranty Trust Bank Plc v Odeyemi Oluwoyinka Joshua (2021) LPELR-53173(CA), her ladyship presided over the panel of the Court of Appeal which held that the EFCC lacks the power to freeze the account of a citizen without a court order. 

 In defending the supremacy of the Constitution against ouster clauses contained in some laws, Omoleye JCA stated in Njikoye v MTN (2008) 9 NWLR (Pt. 1092) 339, that “The provisions of Section 90 seem strict sensu, not a condition precedent per se, but a naked attempt at usurpation of judicial powers. It appears well settled, that the courts will disregard any enactment which purports to usurp or whittle down the judicial powers conferred by the Constitution. Thus: The courts would disregard any statute that seeks to regulate and obliterate their judicial powers conferred on them by the express provisions of the Constitution, the supreme [law] and grundnorm of Nigeria… the provisions of any other law which improperly restricts, impedes, or curtails a complainant from commencing an action as laid down by constitutional provisions, will be disregarded and declared void”.

 In Eregbowa v Obanor (2010) 16 N.W.L.R. (Pt. 1218) 33 at 57, her Ladyship equally maintained that that access to justice cannot be arbitrarily restricted, when she held that, “The right of action in Court, is also a constitutional right exercisable by a person who has complaints touching his civil rights obligations against another person, government or authority…”. However, in Bewaji v Obasanjo (2008) 9 NWLR (Pt. 1093) 540, she turned round to reject public interest litigation, when she held that tax payers cannot invoke fundamental rights to challenge any injury that affects all members of society, unless they can demonstrate specific personal injury. Thus, in a rather conservative manner, she affirmed the decision of the lower court that the Appellant lacked the locus standi to enforce public interest. 

Procedural Justice 

The same concern for procedural justice is evident, in the case of Federal Polytechnic Bauchi & Anor v Aboaba & Anor (2013) JELR 34041(CA) where Justice Omoleye rightly held that an institution that exercises power capable of affecting a person’s status, livelihood, education or reputation, is duty bound to observe fair procedure before taking a disciplinary action against the citizen. Since the Appellant failed to comply with the statutory procedure and fair hearing enshrined under the Federal Polytechnic Act, the termination of the Respondents from employment was set aside.

 In EFCC v Mr Chiedozie Ekeocha (2008) JELR 51737 (CA), the Court of Appeal (per Omoleye JCA) held that requirement of 14 days within which to file a motion on notice upon the granting of leave for the enforcement of fundamental rights was mandatory under the 1979 Fundamental Rights Enforcement Procedure Rules, and that failure to comply with the rule robbed the court of jurisdiction. It was also held that an Applicant’s must ensure that the principal relief sought is a violation of a fundamental right under Chapter IV of the Constitution, as the court has will have no jurisdiction if it is accessory or ancillary to the main claim. It is pertinent to note, an Applicant is no longer required to seek and obtain leave, as a prerequisite for enforcing a fundamental right  under the 2009 Fundamental Rights Enforcement Procedure Rules.

 In Nasiru & Anor v EFCC & Ors (2022) LPELR-56976(CA), the main issue for determination before the Court of Appeal was whether a joint application can be filed by more than one person to enforce a fundamental right under the FREP Rules. In the majority judgement of the Court, Justice Omoleye held that fundamental rights are personal to individuals which should be individually enforced. Her Ladyship concluded that “the joint application of the Appellants before the trial court amounts to a misjoinder of action and it is incompetent. The trial Court was right to uphold the objection of the Respondents in that regard, and properly declined jurisdiction to entertain and determine the said application for incompetence, thereby striking out the same.” However, in his minority opinion, Abiru JCA (as he then was): “The reality is that, contrary to the assertion in the lead judgement, there is no express provision in the FREP Rules, forbidding two Applicants from filing a joint petition for enforcement of their fundamental rights”

 In the case of Total Exploration & Production (NIG) LTD v OKWU & ORS (2024) LPELR-62623(SC), the Supreme Court categorically asserted that where the Applicants share the same cause of action or share a common interest, a single application before a Court of law for redress by multiple Applicants in an application for the enforcement of their fundamental rights, which they allege have been breached, can suffice. It is interesting to note that the leading judgement of the Apex Court was delivered by Abiru, JSC (after his elevation from the Court of Appeal).

Fidelity to her Oath of Office

Based on Justice Omoleye’s understanding of the importance of honesty and integrity, she consistently maintained fidelity to her oath of office. Hence, in handling electoral disputes, she usually based her decisions on her profound mastery of the law and courage. She did justice without fear or favour, affection or ill will to all parties that appeared before her court. Notwithstanding the controversial nature of electoral cases, she never manipulated to instal riggers of election. It is indisputable that Justice Omoleye will always be remembered, for her immense contributions to the development of progressive electoral jurisprudence in the country. 

Conclusion 

As Justice Omoleye brings this chapter of public service to a close, the Nigerian Judiciary owes her a debt of gratitude and appreciation, for the years she devoted to the administration of justice. The Nigerian Judiciary is strengthened, not only by her landmark pronouncements, but also by the cumulative effect of the hundreds of decisions through which she resolved disputes, interpreted statutes, protected constitutional guarantees and maintained the rule of law.

 Having left her footprints on the sands of time, may Justice Omoleye’s retirement afford her the opportunity to enjoy the rewards of a life devoted to the law and public service. May the years ahead be marked by good health, peace, fulfilment, abiding happiness and the satisfaction that comes from knowing that her Ladyship’s contribution to Nigerian jurisprudence will remain part of the legal record, long after the robes have been laid aside.

 We congratulate Justice Omoleye for a distinguished judicial career, and best wishes for a fulfilling retirement. 

Femi Falana, CON, SAN