Justice Isa Ayo Salami

Unless it is quickly resolved, Davidson Iriekpen writes that the Presidency and National Judicial Council (NJC) may soon clash over the reinstatement of the suspended President of the Court of Appeal, Justice Isa Ayo Salami and the continued retention of Justice Dalhatu Adamu in acting capacity

Indications that the Presidency and the National Judicial Council (NJC) may soon get in the way of each other emerged last week when the former challenged powers of President Goodluck Jonathan to continue to retain Justice Dalhatu Adamu as acting President, Court of Appeal (PCA) and his refusal to reinstate the suspended Justice Isa Ayo Salami. The position of the council was contained in its written address in a fresh suit filed at the Federal High Court by 11 lawyers, who are challenging the President’s power to exercise disciplinary functions over Justices of the Court of Appeal, including Salami.

The plaintiffs under the platform of Registered Trustees of Center for the Promotion of Arbitration, had approached the court presided by Justice Adamu Bello through an originating summons for an order of mandamus directing the NJC to recall Salami as substantive President of the Court of Appeal.

The council told the court that President Jonathan has no power or role under the 1999 Constitution or any other law to recall or reinstate Justice Salami or any other justice of the appellate court. Citing the provisions of sections 153, 158 (1) of the 1999 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 told the court that it is clothed with the power to suspend and recall Justices without any recourse to the president. Section 158 in reference provides that “in exercising its power to make appointment or to exercise disciplinary control over persons, …the National Judicial Council,…shall not be subject to the direction or control of any other authority or persons.”

The council argued that the only instance it exercises its powers in conjunction with the president was in the appointment and removal of judicial officers and did not extend to its (NJC) disciplinary control over the judicial officers and reinstatement /recalling of suspended judicial officers as these were residual powers exercisable exclusively by the council. While urging the court to resolve the suit in favour of the plaintiffs, counsel to the NJC, Usman Isa, argued that the exercise of disciplinary power and recall of a suspended Justice of the Court of Appeal was exclusively vested in the NJC by the Constitution.

Both the plaintiffs and the counsel also faulted the re-appointment of Justice Adamu as Acting President of the Court of Appeal, describing his continuous stay in office as unconstitutional and illegal by virtue of section 238 (5) of the 1999 Constitution. They are urging the court to declare the extension Adamu’s tenure as as unconstitutional, illegal, null and void and contrary to section 238 (5) of the 1999 Constitution.

The section states: “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect, after the expiration of three months from the date of such appointment and the president shall not reappoint a person whose appointment has lapsed.”

The posers this has raised now are; at what point did it suddenly done on the NJC that the reinstatement of Salami does not need a presidential approval? Was the law not in place before the immediate past CJN, Justice Dahiru Musdapher, sought President Jonathan’s approval for Salami’s reinstatement? Salami was suspended last year by the NJC following his face-off with former chairman and Chief Justice of Nigeria, Justice Aloysius Katsina-Alu.

He had accused Katsina-Alu on oath, of attempting to lure him (Salami) to pervert the course of justice in a gubernatorial appeal arising from the conduct of the 2007 governorship election in Sokoto State. The attendant controversy shook the nation’s judicial system to its very foundations with everybody calling for his resignation. To resolve the issue, the NJC constituted a five-man probe panel, headed by retired Justice Umaru Abdullahi, to investigate allegations of professional misconduct against the former CJN. At the end, the panel not only cleared him of wrongdoing. Instead, Salami became the scapegoat.

Soon after the retirement of Katsina-Alu, his predecessor, Musdapher was inundated with pressure to recall Salami from suspension. Part of the efforts he made was to constitute the Justice Mohammed Uwais committee to come up with recommendations that would move the judiciary forward. After about two months of intense deliberation, the committee among others recommended that Salami be reinstated to lay the feud in the judiciary to rest, once and for all.
After a hotly debated meeting of the NJC, members in a vote of 10 against eight recalled Salami from suspension. This prompted the council, under its former Chairman and immediate past Chief Justice of Nigeria (CJN), Justice Dahiru Musdapher, to lift the suspension but referred the issue of his reinstatement to the President for his approval. Being a weekend, expectations of his reinstatement were high the following week at the council. But the Presidency has been lethargic in acceding to the advice ostensibly because of two separate suits filed at the Federal High Court in Abuja by one Noah Ajare and Wilfred Okoli for a stay of action.

The two suits that are still pending are praying for a perpetual injunction restraining the President and his agents from taking any actions on the council’s advice, pending the determination of the substantive suit. The applicant joined the Attorney-General of the Federation alongside the President in the suit.

In a 22-paragraph affidavit deposed to by one Omolara Adeogun, the plaintiff said he was not against the reinstatement of Salami, but wanted due process of the law to be followed in order not to set an unhealthy precedent capable of sustaining such uncanny controversies in the future.

There are however, suspicions in some quarters that the filing of the suits was a grand plan to take advantage of the court process to delay the reinstatement of embattled PCA. That aside, analysts are also not happy with the NJC for not letting Nigerians know how it arrived at the decision to reinstate Salami.

Another section of Nigerians is at a loss as to why the Presidency does not want to recall Salami. Recall that while many Nigerians were still criticising the NJC for a wrong decision, Jonathan confounded them with the haste with which he upheld the NJC’s recommendations and accepted Salami’s suspension and appointed Adamu, the next in rank, in acting capacity.

The Presidency’s swift acceptance of the NJC’s recommendations, observers noted, further confirmed speculations that the entire drama was a product of a highly contrived plot aimed at easing out the untrammeled Justice Salami from office.

Salami, they argued, was seen as a serious threat in view of his antecedent and the fear that he would not be amenable when he would be required to play the Presidency’s card at the hearing of the petition by the Congress of Progressive Change (CPC) against President Jonathan’s election.

Thus, observers wonder why the Presidency is not willing to deploy the same haste with which it accepted the NJC’s recommendation of last year in acceding to the request to restore Salami to his position.

Some senior lawyers, who spoke on condition of anonymity because of the sensitivity of the matter, said the delay in recalling Salami, as recommended by the Uwais Committee, is attributable to ego and political considerations. They advised Justice Mukhtar not to deviate from the path identified by the Uwais Committee. To them, acting otherwise would confirm insinuations that the delay was aimed at effectively keeping Salami away at all cost.

While breaking the Federal Government’s silence on the issue, Attorney-General of the Federation and Minister of Justice, Mohammed Bello Adoke (SAN), said government would not place any value on the NJC’s recommendation to recall Salami because it would amount to an affront to the rule of law as the matter is “subjudice”, adding that a lot of “misperception” had trailed the NJC recommendation.

“No responsible government will act on it in the present circumstances of the case. The matter is subjudice. As soon as the judiciary puts its house in order, government will make its position on the matter known. The Federal Government immediately approved his suspension and forwarded the aspect on his retirement to the National Assembly and put on hold the issue of retirement. The government appoints an Acting President of the Court of Appeal,” Adoke said.

He said “on May 11, 2012, the NJC recalled the suspended President of the Court of Appeal and forwarded its recommendations to the President. There are several litigations by way of processes served on the President on the issue and until these are resolved he cannot act.”