The Acting President of the Court of Appeal, Justice Dalhatu Adamu, has urged the Federal High Court to reject the National Judicial Council’s (CJN’s) position on the recall of Justice Isa Ayo Salami.
The NJC has asked the court to declare that its decision on Justice Salami is final and that the President has no role in the matter.
The position of Justice Adamu, who is a member of the National Judicial Council (NJC) by virtue of his is positiuon, is against the suit by the Registered Trustees of Centre for the Promotion of Arbitration.
Filed by 11 Plaintiffs before the Federal High Court, the suit is seeking the reinstatement of Justice Salami to his duty post.
The NJC, acting on the recommendation of three-member panel, decided to reinstate Justice Salami and has communicated its decision to President Goodluck Jonathan.
The plaintiffs are: Mr. Jitobo Akanike, Idris Musa, Allens Agbaka, Ibrahim Bawa, Princewill Akpakpan, Obruche Ayeteni, Nosa Ihaza, Timothy Odumosu, Stewart Salomi, Egogo Lawrence and Maxwell Adeniran.
The Defendants are Jonathan, the Attorney General of the Federation and Justice Minister, NJC, Salami and Justice Adamu.
While Jonathan and AGF were yet to file their responses as at the last sitting, NJC, in its response, agreed with the Plaintiffs that the power to recall suspended Justice Salami solely and exclusively belongs to it without any recourse to the direction or authority of any other person outside the council including the President.
But Justice Adamu has asked the court to discountenance the council’s position and dismiss the suit in its entirety.
Contrary to the argument of the NJC, Justice Adamu said the council was wrong to say that it has absolute power to reinstate Justice Salami without the approval of the President. That will “amount to usurpation of the powers of the President,” he said.
His assertion is contained in his written address filed by Sebastin Hon (SAN) in opposition to the Plaintiffs originating summons.
Justice Adamu said: “It is not correct, as urged by the Plaintiffs/Respondents’ Counsel that by the clear wordings of paragraph 21(b) of Part 1 of the Third Schedule to the Constitution, the 1st Defendant (Jonathan) has no disciplinary powers to exercise over a Judicial Officer.
“Since both suspension and dismissal mean temporary or permanent removal, respectively, from office on disciplinary grounds, it then means that the NJC, having in this case recommended to the President of Nigeria the suspension of the 4th Defendant, the President was right to have suspended the 4th Defendant; and it is no more within the competence of the 3rd Defendant(NJC) to turn around to overreach the President and or torpedo his action on the said recommendation, by unilaterally recalling the 4th Defendant (Salami). This will, with respect, amount to usurpation of the powers of the President.
“The power of the President to exercise such disciplinary powers over the 4th Defendant on the recommendation of the NJC is akin to the powers of the Governor over other named judicial officers.
“We further submit that there is no constitutional provision which binds the 3rd Defendant to implement any recommendation relating to the recall of the 4U Defendant.
“It our submissiçn that even if there is a recommendation by any panel of the 3rd Defendant to recall the 4th Defendant, such recommendation cannot be binding on the 1st Defendant to act upon.
“..,,the President of Nigeria has constitutional powers to exercise disciplinary powers over the President of the Court of Appeal. Mr. President having not yet lifted the suspension of the 4th Defendant in this case, it is futile to posit, with due respect, that with the so called recommendation of the 3rd Defendant’s three-man panel that the 4th Defendant be recalled (which in any case is not proved), all issues relating to the suspension/recall of the 4th Defendant have been put to an end.
Justice Adamu, through his counsel, also submitted that Plaintiffs’ evidence on the recommendations of the NJC three-member panel chaired by the incumbent Chief Justice of Nigeria (CJN), Mariam Aloma-Mukhtar, is “hearsay evidence and therefore inadmissible to form the basis for the determination of this Issue”.
But the NJC, in its written address to the Plaintiffs’ originating Summons stated 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.
It also stated that the extension of Justice Dalhatu Adamu’s appointment as the Acting PCA is unconstitutional, illegal, null and void by virtue of section 238(5) of the 1999 Constitution.
The NJC argued that Justice Adamu cannot be re-appointed by President Jonathan after the expiration of the three months in office without its recommendation.
“By the combined provisions of Sections 153, 158 (1) of the Constitution, and the National Judicial Council’s power to exercise disciplinary control over Judicial officers contained in paragraph 21 (1) of the part 1, third schedule of the Constitution, the 3rd Defendant is to Unilaterally and Exclusively exercise disciplinary control over the Judicial officers.
“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.
“The foregoing submission is strengthened by Section 158 of the Constitution as amended which states that the 3rd Defendant “shall not be subject to the direction or control of any other authority or person”.
By the provision of Section 158 (1) of the Constitution, the NJC argued that it needs no recourse at all to the President in exercising its powers as expounded above.
