UNSOLICITED ELEVATION: Justice Salami Drags CJN To Court, Opens Can Of Worms

The battle of wits between the President of the Court of Appeal, Justice Ayo Isa Salami and the Chief Justice of Nigeria, Justice Aloysius Iyorgher Katsina-Alu assumed another dramatic dimension on Tuesday as Justice Salami has dragged the CJN before A Federal High Court sitting in Abuja over his unsolicited elevation to the bench of the Supreme Court which he claims was made in bad faith.

In the originating summons filled on Justice Salami’s behalf by Prince Lateef Fagbemi, a senior advocate of Nigeria, the Federal Judicial Service Commission, the National Judicial Council and the Attorney General of Federation were named as 2nd, 3rd and 4th Defendants respectively

Opening a can of worms via an affidavit deposed to personally by Salami, he alleged that Katsina-Alu asked him to compromise the Court of Appeal’s verdict on the protracted Sokoto state gubernatorial legal tussle by either disbanding the original panel, which the CJN believed was about to give a verdict adverse to the governor’s interest or to mandate the panel to give judgment in the governor’s favour.

Justice Salami is also seeking for an interlocutory injunction restraining the defendants jointly and/or severally, by themselves, and all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or otherwise howsoever, from recognizing, acting on, doing anything in recognition of or putting into effect any decision of the defendants purporting to appoint him to the Supreme Court as a Justice of the Court pending the hearing and determination of his suit

Determined to justify his claim that his purported elevation was done in bad faith and to persuade the court to grant the injunctive reliefs which he seeks, Justice Salami deposed to three sets of affidavits, whereof he made weighty allegations against the CJN.

Part of Salami’s affidavit reads thus:

* I have all along enjoyed my work as President of the Court of Appeal and did not have any issues or disagreement with the 1st defendant [Katsina- Alu] until the controversies over the gubernatorial election petition in Sokoto state came to light.

* Following my appointment as the President of the Court of Appeal, I found among the pending election petition appeals, the Sokoto State Gubernatorial election petition appeal.

* I set up panels of the Appeal Court to dispose of the pending petitions        including that of Sokoto.

* I was however shocked when subsequent to the setting up of a panel on the Sokoto Gubernatorial election petition appeal, and after all parties had filed and exchange briefs, adopted same and judgement reserved the CJN summoned me by telephone to his office in Abuja.

* The 1st defendant (Katsina -Alu) asked me to disband the panel I had set up for the appeal on the excuse that if the panel allowed the appeal and removed the Governor, the ripple effect would lead to a removal of our highly revered Sultan of Sokoto.

* The 1st Defendant could not convince me on the logic predicating his reasoning more especially as the Sultan was not a party to the election petition and as there is no nexus between any of the parties and the sultan, so I told him I would not disband the panel.

* The 1st Defendant then said in the alternative that I should direct the panel of justices to decide against the Appellant

* To this again, I still said no, that I would not do anything to pervert the cause of justice.

* When the matter came before the 3rd Defendant [NJC], the Committee set up to look into the complaint vindicated me and in clear terms told the 1st Defendant, he had no Constitutional and Statutory power to stop proceedings in any division of the Court of Appeal as he did.

* Since then there has been no love lost between me and the 1st Defendant.

* That the appeal in the Sokoto Gubernatorial election petition which was pending before the Sokoto Court of Appeal was eventually dismissed by the Supreme Court on 21st November, 2010 notwithstanding that the appeal was not before the Supreme Court.

* That initially, it came to me as a rumour that plans were being hatched by the 1st defendant along with some others to remove me from the post of President of the Court of Appeal.

* While I did not want to believe such rumours about my removal nonetheless, I  put my ears and eyes to the ground.

* However on 2nd February, 2011 what had earlier passed as mere rumour became a reality as it became known that the 1st defendant had vigorously moved the meeting of the 2nd defendant on 1st or 2nd February, 2011 to accept his proposal to move me to the Supreme Court

* It is strange in the extreme to me that such ‘Greek gift’ was not even    mentioned to me by the 1st defendant, presumably because my view did not count for anything.

* Again the matter was also considered top most secret by the 1st defendant that it was not listed on the agenda for the meeting.

* That as the president of the Court of Appeal of Nigeria , I am a statutory member of the Federal Judicial Service Commission, National Judicial Council amongst other judicial statutory bodies.

* That on Friday 28th day of January 2011, out of courtesy and respect for the 1st Defendant, I informed the latter of my inability to be present at the meeting of the 2nd defendant slated for Tuesday 1st day of February 2011.

* That I predicated my inability to attend the meeting aforesaid on the loss of an aunt whose eighth day Muslim prayers was fixed for Tuesday 1st day of February 2011 at Ilorin in Kwara State and the fact that the agenda for the meeting of the 2nd Defendant which had earlier been sent out to members did not contain anything to warrant cancelling of my trip to Ilorin.

*That I was encouraged by the 1st Defendant to attend my aunt’s eighth day prayer especially because there was nothing on the agenda serious enough to compel my attendance. That the purported meeting of the 2nd Defendant [Federal Judicial Service Commission] that the 1st Defendant directed that the deliberations should be kept a close secret.

*That at the purported meeting of 2nd February 2011 before the commencement, the 1st and 4th Defendant [Attorney General of Federation] held a private secret meeting in the chambers of the 1st Defendant where the plan was hatched for my removal to the Supreme Court.

*Notwithstanding the foregoing, the 2nd defendant [FJSC] on the 1st or 2nd February, 2011, resolved to nominate me to the 3rd defendant for appointment as a Justice of the Supreme Court.

*Obviously, the game plan to move me to the Supreme Court will facilitate the efforts of the 1st defendant to plant his own minion or stooge as the President of the Court of Appeal to do his biddings as and when needed.

*That I was not heard before the 2nd Defendant took its decision to recommend me for appointment as a Justice of Supreme Court of Nigeria.

*Quite naturally, when I became aware of the ill-motivated decision to move me to the Supreme Court, I wrote to the 1st defendant as Chief Justice of Nigeria and Chairman of the 3rd defendant to reject the decision.  A copy of my said letter dated 4th February, 2011 is Exhibit A herewith.

* I know as a matter of fact that such ill-motivated decision to move the President of the Court of Appeal to the Supreme Court has never happened in our legal history.

QUESTIONS FOR DETERMINATION

(i)        Whether  where the 2nd defendant in exercise or purported exercise of         its powers under Part E, paragraph 13(a) of the Third Schedule to the         Constitution of the Federal Republic of Nigeria, 1999, nominated any     person for appointment to the Supreme Court,  such a decision has any             binding effect on such a person?

(ii)       Whether where a person nominated for appointment to the Supreme           Court by the 2nd defendant has declined such appointment, the 3rd             defendant can still sit as a body under Section 153(1)(i)  of the 1999    Constitution to exercise its power under Part I paragraph 21(a) of the      said Constitution to recommend such a person to the President for     approval?

(iii)      Whether the appointment of the President of the Court of Appeal to the Supreme Court as a Justice of the Court without his consent and without any proven case of misconduct against him does not amount to removal from his office as President of the Court of Appeal contrary to the provisions of Section 292(1)(a)(i) of the 1999 Constitution

(IV)     Whether the federal Judicial Service Commission has not violated the Fundamental rights of the Plaintiff by taking a decision on a matter not on the agenda of the meeting and in respect of which the Plaintiff’s interest is to be prejudicially affected but was never heard?

WHEREUPON, the plaintiff seeks the following reliefs

(i)        DECLARATION that the decision of the 2nd defendant reached at its    meeting of 1st and or 2nd February, 2011 nominating or purporting to     nominate the plaintiff to the 3rd defendant for appointment as a Justice             of the Supreme Court is not binding on the plaintiff.

(ii)       DECLARATION that the plaintiff having rejected his purported nomination by the 2nd defendant for appointment to the Supreme Court,            the 3rd defendant cannot lawfully or properly sit as a body under Section   153(1)(i) of the 1999 Constitution to exercise its power under Part (I)          paragraph 21(a) of the Third Schedule to the Constitution to recommend             such appointment to the President for approval.

(iii)      DECLARATION that any approval by the President of any            recommendation by  the 2nd and 3rd defendants for the appointment of   the plaintiff as a Justice of the Supreme Court is equivalent to a        removal of the plaintiff from office as President of the Court of Appeal             contrary to Section 292(1)(a)(i) of the 1999 Constitution.

(iv)      DECLARATION that any appointment of the Plaintiff (who is currently the President of the Court of Appeal) to be a justice of the Supreme Court of Nigeria, without his consent and without any proven case of misconduct against him amounts to a removal from his office as President of the Court of Appeal contrary to the provisions of Section 292(1)(a)(i) of the Constitution of the Federal Republic of Nigeria, 1999 as amended.

(v)       DECLARATION that the federal Judicial Service Commission violated the Plaintiff’s constitutional right to fair hearing by taking a decision on a matter not on the agenda of the meeting and in respect of which the Plaintiff’s interest is to be prejudicially affected without given him the opportunity of being heard in breach of Plaintiff’s right   to fair hearing.

(vi)      AN ORDER setting aside any such recommendation or decision for the          appointment of the plaintiff as a Justice of the Supreme Court.

(vii)     INJUNCTION restraining the 3rd defendant by itself, its agents, servants        or privies or any of or all its members from sitting as a body under      Section 153(1)(I) of the 1999 Constitution to exercise its power under        paragraph 21(a) of Part I, of the 3rd Schedule to the said Constitution to  recommend the plaintiff to the President for appointment to the  Supreme Court.

(viii)    INJUNCTION restraining the defendants jointly and/or severally, by themselves, and all officers, servants and functionaries of the Government of the Federal Republic of Nigeria or otherwise howsoever, from recognizing, acting on, doing anything in recognition of or putting into effect any decision of the defendants purporting to appoint the plaintiff to the Supreme Court as a Justice of the Court.

By Nnamdi Felix / Abuja