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PROMOTION: Justice Salami drags CJN to court

JUDICIARY, the third arm of government which has enjoyed relative stability over the years and earned the confidence of the citizenry is beginning to fall apart as heads of the appellate court and the apex court have now dragged themselves before the lower court for adjudication over the issue of elevation to a higher bench.

Chief Justice of Nigeria, Justice Aloysius Iyorgher Katsina_Alu, had proposed to promote President of the Court of Appeal, Justice Ayo Salami, to the Supreme Court but Justice Salami has rejected the elevation and has gone to the Federal High Court, Abuja, to stop the promotion which he described as a ‘greek gift.’

A can of worms has, therefore, been opened in the process which will no doubt shake the institution to its foundations.

Justice Isa Ayo Salami 

Justice Salami, in his suit filed before the Federal High Court by his counsel, Lateef Fagbemi SAN, named the Federal Judicial Service Commission, the National Judicial Council and Attorney General of Federation, AGF, as Defendants/ Respondents.

Sokoto governorship tussle

In an affidavit which he deposed to personally, Justice Salami alleged that the Chief Justice of Nigeria asked him to compromise the Court of Appeal’s verdict on the protracted Sokoto Governorship legal tussle by either disbanding the original panel, which Justice Katsina-Alu believed was about to give a verdict adverse to Sokoto governor’s interest or direct the panel to give judgment in the governor’s favour.

Justice Salami also made weighty allegations that cast aspersion on the integrity of the Chief Justice which are contained in three sets of affidavits he deposed to.

He is asking the court to grant an interlocutory injunction restraining the defendants jointly and/or severally, by themselves, and all officers, servants and functionaries of the Federal Government or otherwise howsoever, from recognising, acting on, doing anything in recognition of or putting into effect any decision of the defendants purporting to appoint the plaintiff to the Supreme Court as a Justice of the Court pending the hearing and determination of the Originating Summons.

He also asked the court to set aside any recommendation or decision for his appointment as a Justice of the Supreme Court as well as an injunction restraining the defendants  from recognizing, acting on, doing anything in recognition of or putting into effect any decision of the defendants purporting to appoint the plaintiff to the Supreme Court as a Justice of the Court.

He then prayed the court to declare that the decision of the FSC reached at its meeting of 1st and or 2nd February, 2011 nominating  him to the NJC for appointment as a Justice of the Supreme Court was not binding on him.

Justice Salami is also asking the court to hold that having rejected his purported nomination by the FJSC for appointment to the Supreme Court, NJC could not lawfully or properly sit as a body under Section 153(1)(i) of the 1999 Constitution to exercise its power under Part (I) paragraph 21(a) of the Third Schedule to the Constitution to recommend such appointment to the President for approval.

He prayed the court for a “declaration that any approval by the President of any  recommendation by  the 2nd and 3rd defendants for the appointment of the plaintiff as a Justice of the Supreme Court is equivalent to a removal of the plaintiff from office as President of the Court of Appeal contrary to Section 292(1)(a)(i) of the 1999 Constitution.”

He also asked the court to declare that any appointment of the Plaintiff (who is currently the President of the Court of Appeal) to be a justice of the Supreme Court of Nigeria, without his consent and without any proven case of misconduct against him amounted to a removal from his office as President of the Court of Appeal contrary to the provisions of Section 292(1)(a)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

He urged the court to declare that the FJSC violated his constitutional right to fair hearing by taking a decision on a matter not on the agenda of the meeting and in respect of which the Plaintiff’s interest was to be prejudicially affected without giving him the opportunity of being heard in breach of his right   to fair hearing.

Justice Salami in his affidavit averred: “I have, all along, enjoyed my work as President of the Court of Appeal and did not have any issues or disagreement with the 1st defendant (Katsina-Alu) until the controversies over the gubernatorial election petition in Sokoto state came to light.

Pending petitions

“Following my appointment as President of the Court of Appeal, I found among the pending election petition appeals, the Sokoto State Gubernatorial election petition appeal. I set up panels of the Appeal Court to dispose of the pending petitions including that of Sokoto.

“I was, however, shocked when subsequent to the setting up of a panel on the Sokoto Gubernatorial election petition appeal, and after all parties had filed and exchange briefs, adopted same and judgment reserved the 1st defendant summoned me by telephone to his office in Abuja.

“The 1st defendant asked me to disband the panel I had set up for the appeal on the excuse that if the panel allowed the appeal and removed the Governor, the ripple effect would lead to a removal of our highly revered Sultan of Sokoto.

“The 1st Defendant could not convince me on the logic predicating his reasoning more especially as the Sultan was not a party to the election petition and as there is no nexus between any of the parties and the sultan, so I told him I would not disband the panel.

“The 1st Defendant then said in the alternative that I should direct the panel of justices to decide against the Appellant. To this again, I still said No. That I would not do anything to pervert the cause of justice.

“When the matter came before the 3rd Defendant (NJC), the Committee set up to look into the complaint vindicated me and in clear terms told the 1st Defendant, he had no Constitutional and Statutory power to stop proceedings in any division of the Court of Appeal as he did.

“Since then there has been no love lost between me and the 1st Defendant. That the appeal in the Sokoto Gubernatorial election petition which was pending before the Sokoto Court of Appeal was eventually dismissed by the Supreme Court on 21st November, 2010 notwithstanding that the appeal was not before the Supreme Court.

“That initially, it came to me as a rumour that plans were being hatched by the 1st defendant along with some others to remove me from the post of President of the Court of Appeal. While I did not want to believe such rumours about my removal nonetheless put my ears and eyes to the ground.

“However on 2nd February, 2011 what had earlier passed as mere rumour became a reality as it became known that the 1st defendant had vigorously moved the meeting of the 2nd defendant on 1st or 2nd February, 2011 to accept his proposal to move me to the Supreme Court

“It is strange in the extreme to me that such ‘Greek gift’ was not even mentioned to me by the 1st defendant, presumably because my view did not count for anything. Again the matter was also considered top most secret by the 1st defendant that it was not listed on the agenda for the meeting.

Statutory membership of FJSC

“That as president of the Court of Appeal of Nigeria, I am a statutory member of the Federal Judicial Service Commission, National Judicial Council amongst other judicial statutory bodies.

“That on Friday 28th day of January 2011, out of courtesy and respect for the 1st Defendant, I informed the latter of my inability to be present at the meeting of the 2nd defendant slated for Tuesday 1st day of February 2011.

“That I predicated my inability to attend the meeting aforesaid on the loss of an aunt whose eighth day Muslim prayers was fixed for Tuesday 1st day of February 2011 at Ilorin in Kwara State and the fact that the agenda for the meeting of the 2nd Defendant which had earlier been sent out to members did not contain anything to warrant cancelling of my trip to Ilorin.

“That I was encouraged by the 1st Defendant to attend my aunt’s eighth day prayer especially because there was nothing on the agenda serious enough to compel my attendance. That the purported meeting of the 2nd Defendant (Federal Judicial Service Commission) that the 1st Defendant directed that the deliberations should be kept a close secret.

“That at the purported meeting of 2nd February 2011 before the commencement, the 1st and 4th Defendant [Attorney General of Federation] held a private secret meeting in the chambers of the 1st Defendant where the plan was hatched for my removal to the Supreme Court.

“Notwithstanding the foregoing, the 2nd defendant (FJSC) on the 1st or 2nd February, 2011, resolved to nominate me to the 3rd defendant for appointment as a Justice of the Supreme Court. Obviously, the game plan to move me to the Supreme Court will facilitate the efforts of the 1st defendant to plant his own minion or stooge as the President of the Court of Appeal to do his biddings as and when needed.

“That I was not heard before the 2nd Defendant took its decision to recommend me for appointment as a Justice of Supreme Court of Nigeria.

“Quite naturally, when I became aware of the ill_motivated decision to move me to the Supreme Court, I wrote to the 1st defendant as Chief Justice of Nigeria and Chairman of the 3rd defendant to reject the decision. A copy of my said letter dated 4th February, 2011 is Exhibit A herewith.

“I know as a matter of fact that such ill_motivated decision to move the President of the Court of Appeal to the Supreme Court has never happened in our legal history.”

He therefore prayed the court to answer the following questions:

(i) Whether  where the 2nd defendant in exercise or purported exercise of its powers under Part E, paragraph 13(a) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999, nominated any person for appointment to the Supreme Court,  such a decision has any  binding effect on such a person?

(ii) Whether where a person nominated for appointment to the Supreme Court by the 2nd defendant has declined such appointment, the 3rd  defendant can still sit as a body under Section 153(1)(i)  of the 1999 Constitution to exercise its power under Part I paragraph 21(a) of the said Constitution to recommend such a person to the President for  approval?

(iii) Whether the appointment of the President of the Court of Appeal to the Supreme Court as a Justice of the Court without his consent and without any proven case of misconduct against him does not amount to removal from his office as President of the Court of Appeal contrary to the provisions of Section 292(1)(a)(i) of the 1999 Constitution?

(IV)Whether the Federal Judicial Service Commission has not violated the Fundamental rights of the Plaintiff by taking a decision on a matter not on the agenda of the meeting and in respect of which the Plaintiff’s interest is to be prejudicially affected but was never heard?
Justice Adamu Bello has fixed February 16, 2011 for hearing.

Reactions

Reacting to the suit filed by Justice Salami yesterday, constitutional lawyer, Professor Itse Sagay, said:  “If Justice Salami is saying it, then, it cannot be a joke. As far as that is concerned, it is a capital offence. Two things are wrong; one, when it comes to the responsibility of the judges, in some cases the judge has no boss. He can be transferred from one jurisdiction to another, but when he is handling a case, his authority is unique to him.

So, for another judge, this time, the CJN to actually start telling him (Salami) what to do is a capital offence in a judicial culture. I hope it is not true because if it is true, the consequences will be devastating for the CJN.”

Bringing judiciary to ridicule

Another legal luminary, who lent his voice to the on-going tussle, Mr Bamidele Aturu , called for resignation of the CJN. He said: “It means that the CJN should resign because that means he has to be brought to the witness box and give evidence. That means he has brought the judiciary to ridicule, if he does not go, then, the Senate should remove him (CJN).”

Chief Emeka Ngige, SAN said: “He has every right to go to court as a Nigerian. I believe as his action is going on in court, the primary issue can still be resolved. I believe what he has done is to forestall untowards action against him. I believe this does not foreclose any settlement of the matter. This is the time for the retired Justices of the Supreme Court, the senior members of the Bar and Bench to intervene in the matter and get it settled.”

Jiti Ogunye, a Lagos lawyer said: “The decision of Justice Ayo Salami was to show his grievance over the decision to move him as the President, Court of Appeal. His action is unprecedented, it is also noble. The step he took was the only step available to him to stop the NJC from accomplishing or achieving their objective to forcibly remove him from the Court of Appeal and banish him to the Supreme Court.

This step enjoys our support.

“For people who may have reservation about his action, I will say that it is an action that begets reaction. The steps taken by the CJN and the NJC, in itself novel and unprecedented. It is strange and therefore Justice Salami has every right to challenge the unprecedented action.

The fact that Justice Salami’s action we may say does not have precedent, should not mean that he can’t approach the court to redress over his constitutional rights. If a man who has been in a system for over 23 years felt bad about certain issues, he reserved every right to approach the court. He has the legal rights under the constitution to seek cover at the court. We endorse and support him. We want to encourage him to continue to take to the path the rule of law.”

-Sun

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Posted by on Feb 8 2011. Filed under Headlines, Judiciary. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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