By IKECHUKWU NNOCHIRI
ABUJA – The National Judicial Council, NJC, yesterday, maintained that President Goodluck Jonathan lacked the constitutional powers to stop it from reinstating the suspended President of the Court of Appeal, PCA, Justice Isa Ayo Salami. The legal body made the declaration on a day it urged the Abuja Division of the Federal High Court to declare the re-appointment of the Acting PCA, Justice Dalhatu Adamu, by President Jonathan as unconstitutional and illegal.
In a written address filed in court yesterday, NJC, argued that by virtue of section 238(5) of the 1999 Constitution, Jonathan, lacked the powers to reappoint Justice Adamu as Acting PCA after the expiration of three months from the day Salami was ousted from office, saying the action amounted to an act of illegality since such recommendation never emanated from the Council as required by the law.
It would be recalled that President Jonathan had ordered Justice Adamu to take over the position of Justice Salami who was on August 18, 2011, axed from office by the NJC over alleged “judicial misconduct.”
Salami was accused of lying on oath against a former Chief Justice of Nigeria, CJN, Justice Aloysious Katsina-Alu, who the embattled PCA, in an affidavit he personally deposed in court, said pressurized him to pervert the course of Justice in a governorship election appeal involving Sokoto State.
Following Salami’s refusal to either recant his allegation or tender written apology to both the council and the ex-CJN, at the end of its seventh emergency meeting in Abuja, the NJC, directed him to hand over the affairs of the appellate court to the next most senior justice of the court, a directive that culminated in the appointment of Justice Adamu by President Jonathan.
Justice Isa Ayo Salami and President Goodluck Jonathan
Extension of tenure of Acting PCA illegal—NJC
Nevertheless, after almost a year and two months since Salami vacated his office, the Presidency has extended the tenure of the acting PCA for five consecutive times, an action the NJC said was illegal and unconstitutional.
Specifically, section 238 (5) stipulates that: “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of sub-section 4 of this section shall cease to have effects after the expiration of three months from the date of such appointment, and the President shall not reappoint a person whose appointment has lapsed.”
Thus, without the recommendation of the NJC, the first tenure of the acting PCA ought to have expired in November, 2011.
Thus, without the recommendation of the NJC, the first tenure of the acting PCA ought to have expired in November, 2011.
Though the NJC while under the immediate past CJN, Justice Dahiru Musdapher, implored President Jonathan to go ahead and reinstate Justice Salami, however, the Attorney General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN, took time and adduced reasons why he said the Presidency could not heed the call.
He maintained that the matter was already sub-judice, saying the Presidency would not recall the suspended PCA, pending when all the litigations pertaining to his removal from office, were fully resolved by the courts.
Meanwhile, the NJC which is currently under the leadership of the first female CJN, Justice Aloma Mariam Muktar, yesterday, insisted that it has the exclusive constitutional powers to reinstate Justice Salami to his position, “without recourse of any sort to the President.”
Arguing in favour of a suit that was filed before the High Court by a Non-Governmental Organization under the aegis of Centre for the Promotion of Arbitration, the NJC, said: “We submit that the exercise of disciplinary power and recall of a suspended Justice of the Court of Appeal is exclusively vested in the NJC by the constitution.
“By virtue of the combined provisions of sections 153, 158(1) of the constitution, and the NJC’s power to exercise disciplinary control over judicial officers contained in paragraph 21(1) of the part 1, third schedule of the constitution, the council is clothed with the power to suspend and recall the 4th Defendant (Salami) without any recourse to the president (the 1st Defendant).
“Section 158(1) of the constitution provides that “in exercising its power to make appointment or to exercise disciplinary control over persons… the NJC…, shall not be subject to the direction or control of any other authority or persons.
“The only instances the 3rd Defendant exercises its powers in conjunction with the President is in appointment and removal of judicial officers and do not extend to the 3rd Defendant’s disciplinary control over the judicial officers and reinstatement/ recalling of suspended judicial officers; these, we submit, are residual powers exercisable by the 3rd Defendant exclusively.
“My Lord, we therefore submit that it is within the constitutionally vested powers of the 3rd Defendant to recall/ reinstate the 4th Defendant as the President of the Court. We urge my lord to so hold and resolve this issue as argued in the plaintiffs’ favour.”
Meantime, in the fresh originating summons before the high court, the plaintiffs are among other things, seeking a declaration that the refusal of the NJC, to implement the recommendation of its three-man panel headed by Justice Muhktar, before she became the CJN, urging the recall of Justice Salami, constitute a breach of the constitution of the Federal Republic of Nigeria.
“An order of court directing the 3rd Defendant to recall the 4th Defendant to resume his duties as the President of the Court of Appeal forthwith.
“An order of court directing the 3rd Defendant to recall the 4th Defendant to resume his duties as the President of the Court of Appeal forthwith.
“A declaration that the President of the Federal Republic of Nigeria has no power whatsoever and/or howsoever to exercise disciplinary functions over the Justices of the Court of Appeal and/or Justice Isa Ayo Salami, the PCA.
“A declaration that the further reappointment and/ or approval of the extension of the tenure of the 5th Defendant( Justice Adamu) as the Acting PCA by the 1st Defendant (Jonathan), is unconstitutional, illegal, null and void.
As well as, “An order restraining the 5th defendant from further acting as the President of the Court of Appeal.”
The plaintiffs equally urged the court to among other things, determine: “whether the President of the Federal Republic of Nigeria, has any step to take within the provisions of sections 153 and 21 Third Schedule of the 1999 constitution, as amended, in relation to the recall of Justice Salami as recommended by the NJC.”
Suit adjourns till Dec 4
Even as the prayed the court to go ahead and determine “Whether the NJC’s three-man panel recommendation for the recall of Justice Salami has not put an end to all disputes in relation to his suspension/recall.”
Listed as 1st to 5th defendants in the suit were President Jonathan, the AGF, NJC, Justice Salami and the Acting PCA, Justice Adamu.
However, Presiding Justice Adamu Bello adjourned the case till December 4 to enable the parties to file and adopt their written arguments on the matter.
