President of the Court of Appeal, Justice Ayo Salami

By Tobi Soniyi and Adebiyi Adedapo

The National Judicial Council (NJC) Tuesday told a Federal High Court in Abuja that it does not require President Goodluck Jonathan’s permission to recall the President of the Court of Appeal, Justice Ayo Salami, who has been on suspension since August 18, 2011.

It also told the court that the continued stay in office of Justice Dalhatu Adamu as the acting President of the Court of Appeal was illegal, unconstitutional and invalid.

Responding to a suit filed at the court by the Registered Trustees of Centre for the Promotion of Arbitration, challenging the refusal of Jonathan to reinstate Salami as recommended by the NJC, the council said it was against the constitution for the president to continue to re-appoint Adamu as the interim Appeal Court president.

The council also stated that it has the exclusive constitutional powers to reinstate Justice Salami.
NJC's counsel, Usman Isa Kana, said by virtue of Section 238(5) of the Constitution, the fifth defendant (Adamu) cannot be re-appointed after the expiration of three months without the recommendation of the third defendant (NJC).
It, therefore, said Adamu’s continued stay in office was unconstitutional and illegal.

The plaintiff had asked the court to restrain Justice Adamu from further acting in that capacity.

It also urged the court to determine five questions bordering on the interpretation of the powers of the NJC vis-a-vis the powers of the president as it relates to the exercise of disciplinary powers over justices of the Court of Appeal as enshrined in the constitution.

The council argued that disciplinary powers and the recall of a suspended justice of the Court of Appeal were exclusively vested in it.

It further argued that by virtue of Sections 153, 158(1) of the constitution and the NJC’s powers to exercise disciplinary control over judicial officers, the council was legally authorised to suspend and recall Justice Salami without any recourse to the president.

It said: “By the combined provisions of Sections 153, 158(1) of the constitution and the NJC’s powers to exercise disciplinary control over judicial officers contained in Paragraph 21(1) of Part 1 of the Third Schedule of the constitution, NJC is to unilaterally and exclusively exercise disciplinary control over judicial officers, which we submit, include the taking of any disciplinary measures by way of punishment, for instance, in the form of suspension, and lifting the disciplinary measure taken, for instance, in the form of recalling and reinstating the disciplined officer back to his position without recourse of any sort to the president.”

Kana submitted that by virtue of Section 238(5) of the constitution, the fifth defendant (Adamu) could not have been re-appointed after the expiration of three months without the recommendation of NJC, as such, his continued stay in office was unconstitutional and illegal.

NJC therefore urged the court to hold and resolve the issue against the plaintiff.

Others joined as respondents in the suit are the Attorney General of the Federation and Minister of Justice, NJC, Justice Salami and Justice Adamu, who are the second and fifth defendants, respectively.

When the matter was mentioned yesterday, counsel to the plaintiff, Jiboto Akanike, told the court that they had served all the respondents and asked the court to fix a hearing date.
Counsel to the fifth respondent, D.O Kanda, told the court that he had a preliminary objection to the jurisdiction of the court. He prayed the court to hear the objection first before going into the substantive suit.

Justice Adamu Bello, however, fixed December 4 to hear the preliminary objection.

The plaintiff, among others, is asking the court for an order of mandamus directing NJC to implement the recommendation of its three-man panel urging the recall of Justice Salami forthwith.

It also wants the court to declare that Jonathan has no power to exercise disciplinary functions over the justices of the Court of Appeal and particularly Justice Salami and that the further reappointment or approval of the extension of the tenure of Justice Adamu is unconstitutional, illegal, null and void.

The plaintiff is further seeking an order of perpetual injunction restraining Jonathan from further re-appointing Justice Adamu and NJC from further recommending to the president the extension or reappointment of Justice Adamu.