The law and politics of Salami's travails By Jiti Ogunye

On Thursday, May 11, 2012, the National Judicial Council (NJC) resolved to “reinstate” Hon. Justice Isa Ayo Salami, the “suspended” President of the Court of Appeal (PCA) and sent a letter to President Goodluck Jonathan. The speculation about if and when the said letter was sent to the President and received by him was resolved on Tuesday, May, 23rd 2012, when the Attorney-General of the Federation, Mohammed Adoke, SAN said that although the letter of the NJC recalling Justice Salami from suspension was received on Friday, 18th of May, 2012, the Federal Government would not act on it, because there are cases in court wherein orders are being sought against the Federal Government to stay action on the recall from suspension. The matter is sub judice, and the Government would not take any action to overreach the court, said the AGF. Very instructively, the AGF stated that “in August 2011, the NJC informed Mr President that Salami has been suspended and recommended his retiremen

True,  the NJC at its Emergency Meeting of 18th August, 2011, “suspended” Justice Salami, the PCA, from office, directed him to immediately hand-over his headship of the Court of Appeal to Hon. Justice Dalhatu Adamu, JCA, and decided to recommend his retirement to the President of Nigeria.  Earlier, on August 9, 2011, the NJC had directed Justice Salami to apologize, based on the recommendation of an NJC Committee, chaired by Hon. Justice Auta, the Chief Judge of the Federal High Court. The Committee had reviewed the findings and recommendations of the Hon Justice Abdulahi, CFR (Rtd. President, Court of Appeal)-led NJC Investigation Committee into the allegations against Justice Salami and Hon Justice Katsina Alu, former CJN, respectively, allegations which arose from the handling of the Sokoto State Election Appeal by the Court of Appeal, and the unprecedented unconstitutional “take-over” of that Appeal by the Kastina Alu’s Supreme Court .

The Auta Review Committee found the CJN blameless and found Justice Salami, the PCA guilty of lying on oath against the CJN, and had thus recommended that Justice Salami be warned and asked to apologize to both the NJC, and the CJN within 7 days.

Rather than apologize, Justice Salami instituted an action in the Federal High Court, Abuja against the NJC and its members, challenging the constitution and recommendations of the Investigation and Review Committees of the NJC, and the NJC’s directives based thereon. It was that refusal of Hon Justice Ayo Salami to apologize to the NJC and CJN that attracted the sanction of suspension from office, directive to hand-over and recommendation that he be retired from the Bench.

Brushing aside the advice of the Nigeria Bar Association (NBA) that it should not endorse the action of the NJC,  President Goodluck Jonathan on Sunday, 21st of August, 2011 approved Justice Salami’s “suspension” by the NJC, and the “appointment” of Hon Justice Adamu, as acting president, “ pending when all issues relating to the President of the Court of Appeal would be resolved.”

The President claimed he acted in exercise of the power conferred on him by Section 238(4) of the Constitution of the Federal Republic of Nigeria, 1999 ( “the Constitution”). On Monday, the 22nd day of August, 2011, the former CJN, Hon Justice Katsina Alu swore in Hon Justice Adamu, as Acting President of the Court of Appeal. Following the action of the President, Justice Salami “updated” his litigation in the Federal High Court, by filing a Suit against the action of the NJC, suspending him from office, wherein the President was joined as a party for endorsing the NJC’s action.

The action of the NJC and the President against Justice Salami was widely condemned as illegal, unconstitutional, and an abuse of the rule of law, for Justice Salami had a pending action in court at the time those actions were taken against him. And the law is that once a matter, wherein a restraining order is being sought has been submitted to court for determination, parties should not resort to self-help, but must maintain the status quo, ante bellum, even though an order of injunction be not yet granted. See the Supreme Court’s decision in Ojukwu v Gov of Lagos State 1986 NWLR, Pt 18, pg 621 at 623.

More importantly, as the law stands today, the NJC has no unilateral power to suspend Justice Salami or any PCA from office. It can only, competently, recommend his suspension, to the President, in deserving cases, and the President can only act on such recommendation if it is supported by a two-third address of the Senate.

Although  the NJC has the power, under  the Third Schedule, Part I, Paragraph I, Section 21(b) of the Constitution  to recommend to the President the removal from office of the PCA and exercise “disciplinary control” over him, by virtue of Section 292(1)(a)(i) of the Constitution, any recommendation of removal of the PCA from his Judicial Office can only be effected by the President, acting on an address supported by two-thirds majority of the Senate, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or contravention of the Code of Conduct”.

Our understanding of the law is that just as in the case of removal of the PCA from office, any exercise of power of “disciplinary control” over him, such as the now rescinded suspension, must be subject to the approval of the President, acting on an address of two-third majority of the Senate.  The provisions of the Third Schedule, Part I, Paragraph I, Section 21(b); and that of Section 292(1)( a)(i) of the Constitution must be read and construed together. When this is done, the correct interpretation of the above-cited provisions is that if the PCA can be removed from office only when a two-third address of the Senate directs the President to do so, in the same vein, the PCA can only be effectually and consummately suspended from office by the NJC, with a two third endorsement of the Senate and a decision of the President to that effect. This is line with the principle of checks and balances that is crafted into the Constitution.

It was, therefore, a grave error of law for the NJC and the President, to have acted separately or in conjunction, as if either or both of them could get rid of Justice Salami, without recourse to the Senate, by unilaterally “suspending” Justice Salami  from office. If the trinity of the judiciary, the executive and the legislature has to co-operate to remove a judicial officer from office, it must also co-operate to suspend him from office. The NJC and the President could not have suspended Justice Salami from office under the “exercise of disciplinary control” clause in the Third Schedule, Part I, Paragraph I, Section 21(b) of the Constitution, and appointed an acting president in his stead, under Section 238(4) of the Constitution, when Justice Salami was not properly suspended or removed from office as stipulated in the Constitution. 

A PCA that is appointed by the President of Nigeria, subject to the confirmation by the Senate, cannot be cavalierly or capriciously removed from office by the NJC, acting alone, or acting in concert with the President of Nigeria, without the concurrence of the Senate. Disciplining a Judge, as stipulated in the Constitution, is not akin to a case of interdiction in the civil service, warranting the suspension of a civil servant, pending the outcome of an administrative investigation panel. The office of the PCA is created by the Constitution and protected by it. And the PCA is granted a security of tenure under the Constitution. The NJC cannot remove the PCA from office by latching on to “exercise of disciplinary control” shibboleth, and the NJC’s action cannot be validated by the President’s resort to Section 238(4) of the Constitution. In any case, when the purported suspension from office is tied to the recommendation for retirement, it becomes very clear that the NJC merely used the euphemism of “suspension” to actualize a desired removal. It was an unacceptable violation of the provisions of the Constitution.

Section 238(4) of the Constitution provides that “ If the office of President of the Court of Appeal is vacant, or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Court of Appeal to perform those functions”, and “ except on the recommendation of the NJC, an appointment pursuant to the provisions of Section 238(4) shall cease to have effect after the expiration of three months from the date of such appointment, and the president shall not re-appoint a person whose appointment has lapsed”.

It is our submission that before the President can competently invoke the provision of Section 238(4), “ the position of the PCA must be vacant or  the person holding the office is, for any reason, unable to perform the functions of the office”  There must be a real vacancy; not a simulated, induced or contrived vacancy. The office of the PCA was not vacant, when the President of Nigeria invoked the provisions of Section 238(4), for at that time, the NJC’s directive to Justice Salami that he should hand over to Hon Justice Adamu, had not been complied with, and up to now has not been complied with. So, there was no vacancy, as the purported suspension of the PCA by the NJC, all alone, was unconstitutional, illegal, null and void. To make that office vacant, there must be a valid suspension or removal, and there couldn’t have been a valid suspension or removal of the PCA, without the three arms of government acting in concert. So, there was no vacancy.

What the NJC and the President did was to conspire to swear in an Acting President of the Court of Appeal, when an incumbent had not been removed or validly suspended from office.Little wonder then that the reported NJC’s rescission of the suspension of Justice Salami has been greeted with wide acceptance in the legal profession community and outside it. The President, who, in two days, accepted the NJC’s recommendation to suspend Justice Salami, while Justice Salami had cases in court, is now tying his recall to cases that are pending in court. The President is not swayed by the groundswell of public opinion, including newspaper editorial opinions, calling on him to immediately assent to the recall of Justice Salami, in order to avoid further damage to the independence of the Judiciary.It is our view that the President cannot reject the “recommendation” of the NJC that Justice Salami be recalled. The President did not suspend him, in the first instance; so he is not the authority to recall him.

On records, the NJC did not, on August 18, 2011, recommend Justice Salami’s suspension to the President for his approval. What it did was that it “ suspended” Justice Salami from office, recommended his retirement to the President, and directed him to hand over immediately to the Justice of the Court of Appeal next to him in ranking, a directive with which Justice Salami did not comply. The NJC then communicated its decision and recommendation that Justice Salami be retired from the Bench to the President. Rather than act on what was recommended to him, by sending a request for Justice Salami’s retirement to the Senate, the President purported to have approved Justice Salami’s suspension. Assuming without accepting that the NJC possesses the unilateral power to suspend a PCA, what the NJC ought to do in righting the wrongs done to Justice Salami is to recall him from suspension, direct the Acting PCA to immediately hand over to him, and notify  the President of this exercise of power.

By this miscommunication of its decision to recall Justice Salami, the NJC has unwittingly created an avoidable legal conundrum, offering a President who seems eager to divide and rule the Judiciary a pretext to stalemate Justice Salami’s recall and a pedestal of hypocrisy to achieve his aim. The question ought to be whether the NJC’s recall of the PCA requires a presidential consent or approval, and not whether a President can delay or refuse to accept an NJC’s recommendation for the recall of a PCA from suspension.

Way forward? The NJC should lean on the provisions of Section 158(1) of the Constitution to resolve this impasse. The Section provides that in the exercise of its power to make appointments or to exercise disciplinary control over persons, the NJC, among other bodies listed in that Section 158(1), shall not be subject to the direction or control of any other authority or person. In response to the action of the President, daring it to a duel, the NJC should direct the Acting PCA to hand over to the substantive PCA, Justice Salami, immediately, and bring this matter to a closure. This is the path of law. Let the President and his AGF continue to tread the path of partisan politics. Posterity is watching and its judgment will come.

Jiti Ogunye is Principal Counsel, Jiti Ogunye Chambers, Lagos   

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