As calls for caution continue to trail the Kogi State House of Assembly’s recommended removal of Justice Nasir Ajanah as the Chief Judge, there is unease in the confluence state. James Azania reports
On Tuesday, the Kogi State House of Assembly recommended the sack of the state’s Chief Judge (CJ), Justice Nasir Ajanah. The move, which had been on the board since late last year, was temporarily aborted by the injunction of the state High Court sitting in Koton-Karfe. The suit was instituted by the CJ and the Registrar of the Kogi State High Court.
The onslaught against Ajanah thickened last weekend and led to a protest by judicial officers in Lokoja. This did not stop the assembly from taking its the following day.
The Kogi House of Assembly accused the CJ of gross misconduct, including financial breaches. Details of the misconduct are contained in the report and recommendations of the House Committee on “Public Accounts on the State Auditor General’s Report on 2016 Financial Statements,” in Lokoja.
Presenting the report, the chairman of the committee, Alhaji Ahmed Mohammed, said the CJ should step aside to defend himself over the alleged indictment by the state Auditor-General.
Mohammed, at the plenary sitting on Monday, said the Public Accounts Committee was set up in line with Section 103 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
The committee, according to him, was mandated to investigate reported cases of financial breaches, noncompliance with financial regulations and poor handling of financial records by various ministries, departments and agencies (MDAs) of the government.
He said the Kogi State Judiciary in 2016 expended its budget above the approved limits provided in the 2016 Appropriation Law to the tune of N7,574, 850 without the approval of virement application.
“It was also reported by the State Auditor-General that Kogi State High Court made huge cash withdrawal to the tune of N137,607,334.11. The cash was withdrawn from High Court Bank account in the year under review.
“This transaction breached the provisions of chapter 6, Regulation 632, which stipulates that the use of cash for payment is hereby prohibited,” he said.
The committee, which recommended the removal of the CJ, gave a second alternative of stepping aside, pending his appearance before the House Committee on Public Accounts to defend himself.
It also recommended that the Chief Registrar should be referred to the Judicial Service Commission (JSC) for disciplinary action and that the state government should commence immediate payment of judicial staff salaries.
The Majority Leader of the House, Abdullahi Hassan-Balogun moved for the adoption of the report and was seconded by the Deputy Minority Leader, Oluwatoyin Lawal.
Another member, Haruna Musa, in his contribution, however, urged the House to take cognisance of the subsisting court order on the impasse between the house and the judiciary, and be guarded adequately.
In his contribution, the Chief Whip, Victor Adewale Omofaiye urged that efforts should be made to pay judiciary staffs the nine months salary arrears while the investigation went on.
Speaker of the House, Prince Matthew Kolawole adopted the report and recommendations following majority voice votes by members present.
All these notwithstanding the December 18, 2018 application that was brought before Kogi High Court sitting in Koton-Karfe seeking an out of court settlement of the impasse.
The application to resolve out of court the legal impasse between the CJ, the State Governor and the House of Assembly was granted.
Justice Alaba Omolaye-Ajileye granted the application of counsel to the state governor and the assembly who are defendants in the suit instituted by the CJ and Chief Registrar of the state judiciary.
Counsel for the defendants, Mr Rotimi Oguneso (SAN), made known his personal conviction that the nature of the matter was such that ought to be resolved out of court.
Oguneso, therefore, applied for an adjournment to allow him to explore the possibility of settlement out of court.
Leading four others for the appellants, Chief Adegboyega Awomolo (SAN), did not oppose the application.
He, however, applied for an extension of time of the lifespan of the earlier orders of the court, ‘to avoid embarrassment to the parties to preserve the res.’
In his ruling, Omolaye-Ajileye noted that it was part of the duties of a court to encourage amicable settlement of matters out of court.
He commended the initiative of Mr Oguneso, in seeking to get the matter resolved out of court, but held that the fears expressed by Awomolo over the need to preserve the res of the matter were well-founded.
He said it was expedient that the lifespan of his earlier orders should be extended, in the interest of justice and in order to prevent the occurrence of any irreparable mischief.
He accordingly ordered that his earlier order remained in force, pending the hearing and determination of the motion on notice of 12th December 2018.
Justice Omolaye-Ajileye further restrained the defendants from taking any step, under any guise, to frustrate the case and adjourned the case to February 4th, 2019.
The CJ and Chief Registrar had approached the court to challenge the purported plan by the assembly to investigate them and the state judiciary.
Back then, the house had allegedly constituted a committee to investigate the judiciary upon receipt of a petition by the Secretary to the State Government (SSG), Folashade Arike Ayoade, over alleged impasse between the judiciary and the state government.
The appellants had sought and were granted three injunctions restraining the defendants from threatening or interfering in the discharge of the duties of the applicants.
They also urged the court to restrain the defendants from taking cognizance of any report emanating from the ad-hoc committee set up by the state assembly on the 11th December 2018 pending the determination of the substantive suit.
On March 5, 2019, the Judiciary Staff Union of Nigeria (JUSUN), Kogi State chapter dragged the state governor, Alhaji Yahaya Bello, the CJ and seven others before the National Industrial Court sitting in Lokoja, challenging alleged constitutional breach of non-remittance of funds accruing to the state judiciary, leading to accumulated salary arrears of eight months and strike action.
In the originating summons filed at the court by Chief Moses Enwere, counsel to the union, JUSUN said it went to court as a last resort.
It alleged that the state government did not make any concrete effort towards resolving the impasse that necessitated the strike action which started December, last year.
Other defendants in the matter are the state Attorney-General, the Commissioner for Finance, the Accountant-General, the Auditor-General, the Grand Khadi, the President of the Customary Court of Appeal and the state’s Judicial Service Commission (JSC).
The union posed three fundamental questions among others, for determination by the court.
They include, “whether Kogi State judiciary is not entitled, as of right, amounts standing to its credit in the Consolidated Revenue Fund of the state and payable to the heads of courts in line with section 231(3) of the 1999 Constitution (as amended) and section 5 of the Kogi State Public Finance (Judiciary Special Provisions) Law No 6 of 1991.
“Whether the governor and his appointees joined in the case have the power or right to withhold judiciary’s funds and thereby failing in the payment of monthly salaries, allowances and emoluments of judiciary staff.
“Whether the executive arm can place such conditions as staff screening, staff data capturing, table payment or any other condition as a prerequisite for the release of the funds without respect for the doctrine of Separation of Powers as envisaged by the Constitution, the Kogi State Public Finance Law.”
The union also urged the court to determine whether the executive arm had the powers or constitutional right to usurp the powers of the JSC, by scheming to take over payment of judiciary staff salaries and other emoluments without reference to and approval of the commission.
It also sought the determination of the Industrial Court, whether on the other hand the CJ and other heads of courts, had received any subvention since 1st July 2018 and have refused to pay the salaries and emoluments of staff.
It, therefore, urged the court to declare that subject to the provisions of the Constitution and laws of Kogi State, amounts standing to the credit of Kogi State judiciary in the Consolidated Revenue Fund of the state be paid directly to the heads of courts.
It also urged the court to declare that the executive lacked the power to withhold funds accruing to the judiciary and its continued refusal to remit such funds due to the judiciary, as unconstitutional, illegal, ultra vires, wrong, null and void and of no effect.
JUSUN, therefore, asked for an order of the court directing the full payment of the accumulated eight months subvention owed the three courts and the JSC, which resulted in the industrial action that commenced December, last year
It further asked for a perpetual injunction restraining the governor and his agents from further withholding of amounts standing to the credit of the state judiciary in the Consolidated Revenue Funds.
JUSUN also urged the court to restrain the executive from “taking steps that tends towards usurping the powers of the JSC, in terms of payment of emoluments and discipline of judiciary staff.”
The originating summons was supported by a 21-paragraph affidavit deposed to by Mr Emmanuel Waniko, JUSUN chairman in the state, in which he declared that the staff could no longer afford transport to work and were neither creditworthy.
The court is yet to give a date for commencement of hearing the matter.
Following the institution of JUSUN’s suit, Governor Yahaya Bello, in a state broadcast said that funds meant for payment of staff salaries and allocations to the judiciary are “sitting idly in banks awaiting readiness” of their leadership to submit staffs to table payment.
Bello said money for several months salaries for the judiciary staff were intact.
He explained that the problem was the refusal of the leadership of the Kogi State Judiciary, in collusion with the leadership JUSUN, to forward the staff payroll for a ‘pay parade.’
“My preoccupation is how to get that money to the innocent staffers without breaching applicable service rules or our collective agreement with labour. I trust the Almighty God that reason will prevail sooner than later.
“In any case, monies amounting to several months salaries due to Kogi State civil servants working in the judiciary are sitting in the banks,” the governor said.
On the lawsuit filed against the governor and his administration along with the state CJ and six others by JUSUN, Bello said it was politically motivated.
He said, “I am not surprised by the timing of the case, considering the season we are in, and the politicisation of institutions all over the place.
“The refusal of the leadership of the Kogi State Judiciary to forward their staff payroll for the Pay Parade, with the collusion of JUSUN leaders, is well documented.
“I have pleaded unsuccessfully with them for months now to do the needful and spare their innocent members this trauma”.
He added that the state house of assembly had also tried to intervene, only to be stopped by an “injunction from the judiciary, curiously obtained while courts claimed to be on strike.”
Bello said he had already petitioned the Chief Justice of Nigeria (CJN), to intervene since November, last year, but was yet to receive any feedback from the CJN.
“We look forward to being educated on how a pay parade across all branches and cadres of our civil service is prejudicial to the independence of the judicial arm, but not the Legislative”, he enthused.
CJ reacts
The CJ, in a statement issued on Wednesday, through Saqeeb Saeed, Senior Information Officer, Kogi State Judiciary, said: “Yesterday afternoon, Tuesday, 2nd April 2019, the media, especially the social media, was awash with the report of the recommendation of the Kogi State House of Assembly to His Excellency on the Honourable Chief Judge, the content of which we are yet to know. Today, the news reportage in most traditional media didn’t come to us as a surprise. It was expected, following the events occurring in Kogi State in the last 72 hours.
“Within this period, the leadership of the Kogi State branch of the Judiciary Staff Union of Nigeria had protested against the plot by the state governor, His Excellency, Alhaji Yahaya Bello and the Kogi State House of Assembly, to oust the Chief Judge of the state, Hon. Justice Nasir Ajanah.
“Despite the media report of the denial by Mr Kingsley Fanwo, Media assistant to the governor, who even accused the judiciary of peddling rumours, JUSUN’s fears were confirmed by the macabre dance reportedly displayed by the Kogi State House of Assembly yesterday, through its speaker, Rt. Hon. Mathew Kolawole.
“This development has necessitated our call for caution and restraint on the part of the executive and legislative arms of Kogi State government to avoid overheating the polity. We make this submission reliant on the subsisting order of the Koton-karfe division of the High Court of Kogi State, which ordered the three arms of government in the state to maintain the status quo ante belum, on 13th December 2019.
“If it should be contemplated that any of the heads of the three arms of government in Kogi State would ever disobey any court order or contravene provisions of the constitution, the leadership of the judiciary would definitely not be counted among. This is the more reason why His Excellency, Governor Yahaya Bello and Speaker of the Kogi State House of Assembly would have cautiously abided by their oaths of office, to uphold and defend the Constitution, which they swore allegiance to.
“The report purportedly presented to and acted upon by the assembly remains only within its purview and probably that of the executive. While neither the Honourable Chief Judge nor Chief Registrar of the High Court received any correspondence, not to talk of appearing before any House Committee to defend themselves against any allegation, even if trumped up, before and since the court order was issued. His lordship takes exception to the use of such words as “gross misconduct” in reference to him.
“We’re very sure that the framers and users of this phrase that is capable of tarnishing the reputation and image of the Hon. Chief Judge knows the implication and likely consequence of any malign against the Hon. Chief Judge over unsubstantiated allegations.”
On its part, the Kogi State chapter of the Social Democratic Party (SDP) warned against unconstitutional removal of the Chief Judge of Kogi State, when his tenure is not yet over.
In a statement signed by the state chairman of the party, Alhaji Mouktar Atimah, the party noted that similar removals done were reversed by the Supreme Court, saying that this will not also stand.
The Peoples Democratic Party (PDP) in the state also faulted the lawmakers’ decision.