The National Judicial Council (NJC) has asked the Pr,esident of the Court of AJ2Peal (PCA), Justice Isa Ayo Salami, to apologise in writing to the Chief Justice of Nigeria (CilllJustice Aloysius Katsina-Alu and the NJC within a week, beginning from August 10. The NJC said it found Justice Salami guilty of false claims and breaching of Rule 1(1) of the Code of Conduct for judicial officers. Lawyers have faulted the directive, which expires tomorrow. They said the NJC acted ultra vires because it has usurped the powers of the courts. Only a court has the power to declare a person guilty of perjury, and not the NJC, they argued. JOHN AUSTIN UNACHUKWU, ERIC IKHILAE and JOSEPH JIBUEZE sought their views.
FOR the Chief Justice of Nigeria (CJN), Justice Aloyius Katsina-Alu, the President of the Court of Appeal (PCA), Justice Ayo Isa Salami and the National Judicial Council (NJC), tomorrow means a lot. The day marks the expiration of the seven-day ultimatum given to Justice Salami to apologise to Justice Katsina-Alu as part of the NJC’s decision on the face-off between Justice Katsina-Alu, rho is retiring on August 28, and Justice Salami.
Justice Salami, NJC said, should apologise to Justice Katsina-Alu for lying against him on oath. Lawyers, who have so far reacted to this decision, feel that the NJC, which comprises mainly judges should know better than to make such pronouncement. In law, a man cannot be found guilty 6f a criminal offence by an administrative panel. It is only the courts that have the power to try and convict for criminal offences. This is why lawyers are worried by NJCs stand.
Was the NJC working to a predetermined position? Many lawyers believe it was.
From the way the NJC went about its brief, the lawyers said many be tempted to query the type of justice being dispensed daily by the courts. According to them, if judges and others in the NJC cannot ensure “true and untainted” justice among themselves, how then can they claim to understand what justice implies when adjudicating on litigants’ disputes?
The NJC was acting in good faith when it constituted the Justice Bolarinwa Babalakin panel to look into the dispute between the CJN and the PCA over the Sakoto, Ekiti and Osun governors election disputes.
On the completion of its task on March 8, last year, the Babalakin panel, among others, found “That the CJN as the chairman of the NJC has no power to interfere with any proceedings in any court as was done in this case.” It absolved Justice Salami of any wrong doing.
Apparently dissatisfied with this outcome, the NJC on March 9,2011 constituted the Justice Umaru Abdullahi panel.
The panel, besides reviewing what the Babalakin panel did, also looked into fresh petitions by ex-Governors Olagunsoye Oyinlola (Osun) and Segun Oni (Ekiti) and the Peoples Democratic Party (PDP) against some Justices of the Court of Appeal, who sat on the governorship appeal election petitions in those states ..
The ex-governors alleged that Justice Salami had a relationship with the Action Congress of Nigeria (ACN) and its leaders. They submitted some MTN call logs to prove that Justice Salami allegedly compromised in removing them from office and declaring opponents, the ACN and its candidates, as the winners. The panel also looked into Sokoto, Ekiti and Osun states governorship appeals.
“At the end of its assignment, the Abdullahi panel reported among others, that: “Upon the totality of the evidence and the material placed before the panel, it finds:
(i) that the call logs relied on by the petitioners lack authenticity and, therefore, have J10 evidential value;
(ii) that there is no sufficient evidence to establish the alleged unethical communication and to make finding of fact that there was such communication;
(ill) that there is nothing to show that the statement credited to Justice Salami, that he makes use of judges he trusted is indicative of an adverse connotation.
On Sokoto Governorship Appeal, the panel said there was no leakage of the judgment of the Court of Appeal as alleged against Justice Salami and Justices of the Court.
The panel, however, said the NJC and the CJN have no power to interfere in any judicial proceedings as Justice Katsina-Alu did on Sokoto Governorship Election Petitions before the Court of Appeal.
Rather than rut the nail on the head, the panel chose a middle ground, preferring not to rock the boat. “The panel, however, finds no semblance of ill-motive, selfishness of an individual or sectional interest being used to subvert the Constitution in the steps taken by the CJN, Chairman of NJC.
“In view of the surrounding circumstances, the panel finds that the CJN was motivated by an apparent urge to protect the administration of justice and avoid Dreach of peace. The panel finds that the CJN acted in good faith to have taken the steps he took,” the Abdullahi panel said in its report .
. Still unsatisfied, the NJC constituted the Justice Ibrahim Auta panel, to make recommendations based on the Abdullahi panel. Justice Auta, though a member of the NJC by virtue of being the Chief Judge of the Federal High Court, is the most junior of all the heads of the three panels set up by NJC over the Katsina-Alu/Salami dispute.
The NJC said: “Having therefore established that the allegation by Justice Salami against Justice Katsina-Alu, regarding the Sokoto Gubernatorial Election Appeal was false, Council decided that it is a misconduct con~ to Rule 1 (1) of the Code of Conduct for Judicicil Officer of the Federal Republic of Nigeria. Consequently, Council further decided iliat the Hon. President of the Court of Appeal should:
(i) “be warned for such unethical conduct which eroded the ‘public confidence in the integrity and impartiality of the Judiciary;
(ii) “apologise in writing to both the CJN and Chairman of NJC, Justice Katsina-Alu, and NJC within a week from today, the 10th day of Au t,2011.”
Although it has been reported that Justice Salami was planning to head for the court over this recommendation, observers are worried over the implication of the decisions on the Judiciary.
A United States of America (USA)-based nongovernmental organisation, Justice For All Nations QFAN), described the apology directive as a bad precedence in Nigeria’s judicial history.
The group noted that “H apology could be recommended as penalty for perjury, that shows what Nigeria has in its legal Institution are a bundle of deceptors that specialise in dressing corruption and pretend to be dispensing justice.”
In a statement signed DY its coordinator, Dr Dada Popoola, JPAN stated that the judiciary in Nigeria had again lost the chance of restoring its credibility in the eyes of the world. –
He said: “Our question is, does that mean that Justice Salami, who committed perjury, will now be sitting in judgment over other people who committed the same offence? And if such a case is brought before him, is he also going to simply overlook Section 117 of the Criminal Code, Laws of the Federation, which makes perjury a criminal offence and Section 118, which prescribes 14 years imprisonment for offenders? –
“According to Section 117, ‘Any person who in any judicial proceeding or for the purpose of instituting any judicial proceeding knowingly gives false testimony touching any matter which is material to any question then depending in that proceeding, or intended to be raised In that proceeding, is guilty of an offence which is called perjury.
“It is immaterial whether the testimony is, given on oath or under any other section authorised by law. In this instance, Justice Salami lied on oath and all that the NJC could do was to say, ‘go and apologies to the CJN and NJC: as if the CJN and the N]C are equivalent to Nigeria and its people that Justice Salami ridiculed!
“NJC has just set a bad precedence in Nigeria’s judicial history. This is absurd and the sooner President Goodluck Jonathan and the Senate wade into a matter like this, the better for Nigeria and its image before the international community.”
Lawyers said only a court of law, and not a domestic panel, can preside over a· criminal matter such as alleged perjury.
A professor of law, Itsay, Sagay (SAN) said the move by NJC is very illega1 and unconstitutional.
“No panel other than a court of law can indict anyone in matter of perjury. What the NJC is doing is therefore completely illegal and unconstitutional. It is only a court of law that is constitutionally empowered to do so,” he said.
He said the allegation that the CJN interfered with a pending case on appeal has been swept under the carpet. “There has been no apology or expression of any form of regret .over the illegal and unconstitutional interference in the Sokoto governorship petition appeal,” Sagay said.
According to him, there is an “anti-progressive onslaught” against Justice Salami over his role in restoring true democracy. Some, he said, are not happy with the Court of Appeal headed by Salami which upturned several stolen mandates from rigged elections, and are bent on reversing the gains made by the appellate court.
Activist-lawyer, Mr Femi Yalana said:
“Frankly speaking, I cannot appreciate why the NJC has decided to embarrass itself by acting outside its statutory powers. With profound respect to the members most of whom are eminent judges, the NJC has no powers to impose or to mete out punishment or disciplinary action on any of its members or any judge for that matter.
“There is no doubt that the NJC can investigate allegations of misconduct against them, Including the CJN/ but, once Investigation has been concluded, and a case of misconduct is established, the power to discipline is with the appointing authority, in this instance the President.
“The NJC is a recommending body which has no powers to execute its recommendations. By asking somebody to apologise for lying on oath, the NJC has acted Ultra vires (outside its powers) by finding somebody guilty of a criminal offence of perjury which only a properly constituted court in Nigeria can find. Only a properly constituted court can make such a finding.
I therefore, hope that the attention of the NJC will be drawn to the relevant provisions of the Constitution and decided autftorities on ‘his matter, particularly the case of Legal Practitioners Privileges Committee vs. Fawehinmi. The NJC’s disciplinary power is limited to the staff of the Council.”
A human rights activist, Mr Morakinyo Ogele, ~aid the outcome of the Auta Panel was not only surprising but shocking. He said it was Jutside the purview of a panel without judicial powers to handle a’ criminal matter such as alleged perjury.
He warned NJC to expect a lawsuits over what he called breach of Constitution, adding that the NJC’s finding that justice Salami swore to a false affidavit is outside the jurisdiction of any domestic panel.
Ogele said it has been widely decided by the courts that a domestic panel such as the Auta Panel cannot preside over a criminal matter.
He cited the case of Carba vs University of Maiduguri where the Supreme Court held that it is beyond the jurisdiction of any domestic panel to preside over a criminal matter.
“We have been warning that the NJC should thread cautiously in respect of Justice Salami and the CJN. I humbly advise NJC to withdraw the outcome of Auta Panel in respect of perjury that the panel decided upon.
“Otherwise, it may open a floodgate of litigation in this country as any individual has the right to challenge a breach of our constitution,” Ogele said.
A human rights group, the Access to Justice (An, said the conclusions on Petitions against CJN and PCA are disappointingly shallow and side-step core Issues. They woUld not hell’ restore public confidence in judiciary, it said.
Its Director, Mr Joseph Otteh, said: “Ultimately, the leadership of the Nigerian judiciary must take responsibility for the current state of the Judiciary, its loss of prestige and public trust, its internal conflicts and divisions, Its sagging stature and its waning authority.
“The judiciary needs new direction, new administration, new leadership, new systems and a new spirit. We urge the current leadership to make way for this-renewal.”
Former Chairman, NBA, Ikorodu Branch, Mr Nurudeen Pt;bara, said: “The verdict is most unfortunate, incredible, and perverse because the evidence is so clear even to the blind man. It is rather sad that those entrusted with the leadership of the judiciary decided to rubbish and denigrate the sacredi1ess and the sanctity of the respected institution. The least everybody expected was the resignation of the incumbent Chief Justice of Nigeria and commendation for the PCA for standing on the truth, fairness, integrity and transparency.
“From the outset, the Current occupant of the exalted office of the Chief Justice of Nigeria had sacrificed his headship of the judiciary and comprised the integrity of the system on the alter of sheer opportunism. How can you absolved the CJN 01 wrong doing and turned the heat on the PCA, who obviously is the one that has insisted on integrity. Besides, the history of the dramatis personnel involved in this matter easily show to the whole world who is pro-integrity and who does not have any iota of integrity.
“Given the intrigues and double standards that have characterised the whole exercise, it is evident that there is a glaring conspiracy to get rid of the PCA at all cost even as the CJN retires. The ‘CJN will not even be touched. Only the just, the truthful and the meritorious with a lot integrity and the love of transparency that is being subjected to Persecution, harassment and molestation but the righteous are ever courageous because the Gracious God will not abandon them.
“The signs are too ominous and the clouds, too dark and unbridled. The NBA and indeed all right-thinking and justice-loving Nigerians Should not allow this otherwise the few remaining courageous and principled jurists in the Nigerian judiciary will lie completely traumatised, permanently intimidated and humiliated.
“One of the duties of the NBA is to protect the legal profession and defend its integrity. Not only does the NBA protect and defend the bar, she similarly does the same for the bench. Unfortunately however, the NBA has over the years been short-changed by the vary forces opposed to transparency, rule of law and due ‘process by the continued attempts to manipulate the NBA which the successive leadership of the bar has resisted and continue to resist.
“The constitution and relative statutory provisions allow the NBA to appoint its nominees into certain stator and constitutional bodies but those in authorities usually frustrate the lofty intensions and often sabotage the NBA by directly appointing such nominees themselves rather than allowing the NBA to do so. They appoint their minions and stooges who are otherwise not proper and fit persons and who will not be accountable to the NBA. The leadership of the bar has gone as far as instituting legal action to redress the anomalies:
“The truth actually is that the Nigerian judiciary still faces a daunting task in deepening democracy and validating the rule of law and due process due largely to constitutional defects and structural problems in relation to the Judicature. These challenges include but not limited to composition of the NJC, its constitutionally assigned mandate, those who have been’ appointed to the apex court over time, by way of elevation or seniority as opposed to appointment predicated on merit and a mix of ideological cum solid professional backgrounds, deficient accountability credentials and the complexities of the time,
“The unfolding miasma in the Nigerian judicature has once more placed on the front burner the urgent necessity to have a transformed and accountable judiciary that will effective superintend an impartially adjudicate all sorts bf grievances including political transition disputes. The constitution should be amended without further delay such that the ‘CJN will no longer be the Chairman of ·the N}C, without prejudice to Section 230 (1) – as amended so as to guarantee fair play and put in place a measure of check and balances. Similarly, part 1 of the Third Schedule of the constitution with regard to paragraph I dealing with the NJC should equally be reworked so that the limiting proviso in paragraph 20 (i) thereof that provides that the five (5) nominees/members of the NJC “ … shall sit in the NJC only for the purposes of considering the names of persons for appointment to the superior court of record … ‘
“The foregoing, I submit, is the greatest danger to the NJC and the Nigerian polity because but for this proviso, the representatives of the NBA would have made a big difference and justice would have been done and the integrity of the judicial arm would have been preserved. I entertain no doubt whatsoever that the NBA will continue to rise to the occasion and engender the desirable changes even in the face of the avoidable contradictions the NJC has found itself.”
•Culled from THE NATION