The application today comes after the National Court on October 29 temporarily stayed the Leadership tribunal reconvening until November 6.
Namah’s lawyer Greg Sheppard moved the motion this morning saying the appointment of the tribunal by the Chief Justice Sir Salamo Injia was unconstitutional and invalid as the Chief Justice was involved in one of the allegations in Namah’s referral.
He said being involved in one of the allegations, the Chief Justice ought not to have appointed the tribuna,l saying the appointment was invalid.
Sheppard said the Ombudsman Commission after investigation should have directed the Chief Justice to deem himself ‘unable and unavailable’ to make the appointment and appoint another judge to act on the Public Prosecutor’s referral.
He said this would ‘avoid the embarrassment’ since he (Chief Justice) was already involved in one of the allegations.
He asked the court to determine whether Sir Salamo’s appointment of the tribunal was jurisdictional since he was involved.
Lawyer for the Tribunal members Laias Kandi said the application was an abuse of process suggesting the only remedy for such cases was for the court to refer a question to the Supreme Court as per section 18 of the Constitution or seek a judicial review.
He said such applications should not be before the Human rights tracks and that damages could be an appropriate remedy.
Lawyer for the Ombudsman Commissioner Michael Efi said pursuant to section 18 s(2) of the Constitution, the tribunal can refer questions to the Supreme Court in the proceeding.
He said the Public Prosecutor had not yet presented the reference to Namah so that the tribunal proceeding had not been activated yet.
Efi said the tribunal had not yet been activated, it was not considered a question yet to refer to the Supreme Court on the issue of the tribunal’s appointment.
Justice Cannings will make a ruling on that application tomorrow (Nov 5).