By Ikechukwu Nnochiri
Following his uncanny role in the continued suspension of the President of the Court of Appeal, Justice Isa Ayo Salami, the Nigerian Bar Association, NBA, penultimate week, took a swipe at the Attorney-General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN.

Except for his advice, President Goodluck Jonathan would have acceded to the recommendation of the National Judicial Council, NJC, that the embattled PCA who was axed from office on August 18, be recalled to office.

Specifically, section 150(1) of the 1999 Constitution as amended, provides that “there shall be an Attorney-General of the Federation who shall be the Chief Law Officer of the Federation and a Minister of the Government of the Federation.”

Section 150(2) on the other hand, stipulates that “a person shall not be qualified to hold or perform the functions of the office of the Attorney- General of the Federation unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than ten years.”

Thus, by virtue of his position, the AGF is expected to serve as a legal compass to the President on issues of national importance.

However, the role he has played on the case of Salami so far, has raised doubts on the minds of judicial pundits who have began to query the propriety of allowing one person to hold the powers of both the AGF and Minister of Justice.

It is argued in some legal circles that splitting the two offices would help in curbing the flagrant abuse of judicial powers by some of those that have manned the position in recent times.

Remarkably, though the AGF wields enormous judicial powers, yet, the CJN remains the number one judicial officer in the country.

Could it then be said the AGF, Adoke, is more knowledgeable in law than the CJN, Justice Dahiru Musdapher and several other judicial egg-heads that met and recommended Salami’s reinstatement?

Who determines when a matter is subjudice?  Or could it be said that all the members of the NJC that took the decision on Salami failed to take cognizance of the pending litigations before arriving at a consensus on May 10?

Statutorily, the NJC came into existence by virtue of section 153 of the Constitution. Section 158(1), states that in exercising its powers to make appointments or to exercise disciplinary control over persons, it shall not be subject to the direction or control of any other authority or person.

Justice Isa Ayo Salami and President Goodluck Jonathan

Having taken the decision, it beats the imaginations why the AGF who is a member of the NBA, decided to play the proverbial black sheep by waving the word ‘subjudice’ as a magic wand capable of scaring away a perceived enemy of the government in power.

According to Adoke, until all the pending litigations are disposed of, President Jonathan will not reinstate the suspended PCA; “no responsible government will overreach the powers of the court, this government is determined to do the right thing,” he argued

However, flaying the role of the AGF in the Salami saga, the NBA which is umbrella body of legal practitioners in the country, after a conference of its National Executive Committee, NEC, held at Lokoja, Kogi State, noted that the decision was made in bad faith.

In a communiqué signed by the NBA National President, Mr J.B Daudu, SAN, the legal body said: “NEC considered the recent National Judicial Council recommendation to the President of the Federal Republic of Nigeria to recall the Hon. Justice Isa Ayo Salami back to the office of the President of the Court of Appeal of Nigeria and condemned the refusal of the president to do so on the pretext of pendency of litigation in court.

“NBA/NEC considered the decision was made in bad faith as there was pending litigation when the original decision to suspend him was taken.

“NBA/NEC reiterates its decision reached at the 2011 Annual Conference of the NBA at Port Harcourt calling for the reinstatement of the PCA on the ground that the suspension was done whilst there was litigation on the correctness or otherwise of the disciplinary action of the National Judicial Council,” The NBA statement read in part.

“The NBA/NEC viewed the decision as capable of eroding the confidence reposed in the judiciary by Nigerians.

“NEC took another look at the disturbing image problem of the judiciary in particular and the justice sector in general with the resultant effect of public odium and ridicule and advised all stakeholders, particularly serving Attorneys-General of the Federation who arrogate to themselves the right of interpreting judicial decisions and legislation in such manner that strictly suits the government of the day, regardless of their oath of office, the truth and the lofty standards expected of occupants of such high office, and further advised such functionaries to desist from doing so, in view of the incalculable damage such unprofessional conduct is occasioning on the system.”

Meanwhile, on May 30, a Federal High Court in Abuja struck out one of the suits the AGF hinged upon to kick against Salami’s recall bid.

Justice Abdul Kafarati who dismissed the suit as grossly lacking in merit, maintained that the plaintiff, one Mr Noah Ajare, lacked the locus-standi to institute the action, saying he failed to establish the personal injury he would suffer if Salami is reinstated.

Besides the issue of locus, the court held that the plaintiff rendered his suit incompetent by joining the Judicial Reform Committee that ab-initio recommended Salami’s recall, as a party to the suit, noting that it is not a legal person that could sue or be sued.

Stressing that the committee was already dissolved having concluded its assignment, Justice Kafarati said the 2nd defendant, not being a creation of the law, cannot be dragged to court.

“The fact that the plaintiff is a member of the NBA is not enough to confer locus on him. He has failed to show a special legal right or prove to this court that he has greater interest in the matter, over and above every other Nigerian.

“Moreover, the issue of removal or reinstatement of Salami as President of the Court of Appeal can be effectively decided without the appearance of the plaintiff. Having gone through the processes before this court, it appears to me that the plaintiff does not have any work to do. The plaintiff cannot be said to have established any course of action against the defendants, the case lacks merit and it is accordingly dismissed,” the court held.

The plaintiff had urged the court to invoke its powers and abort any move by President Jonathan to recall Salami on the basis of the NJC recommendation.

He contended that any action taken by President Jonathan on the matter would not only amount to subjudice but equally constitute a deliberate affront on the statutory duties of the judiciary.

Listed as defendants in the suit were the NJC and the Judicial Reform Committee which was constituted by the CJN with a view to resolving all the crises trailing the suspension of Justice Salami vis-à-vis the impasse that had existed between the PCA and the erstwhile CJN, Justice Aloysius Katsina-Alu.

In an originating summons he filed before the court, Ajare, specifically sought a declaration that all the meetings, discussions and recommendations for the reinstatement of Salami by the President, on the recommendations of the NJC, was illegal, unconstitutional, null and void, as the matter is subjudice.

Even as he beseeched the court for an order of perpetual injunction restraining the defendants, their servants, agents or privies from implementing, discussing and or rectifying the recommendations of the NJC in respect of Justice Salami pending the hearing and determination of pending court actions so as not to create a wrong precedent.

The plaintiff who identified himself as a member of the Nigerian Bar Association, NBA, maintained that he was not against the reinstatement of Salami, but wanted the due process of the law to be followed in order not to set an unhealthy precedent capable of sustaining such uncanny controversies in the future.

He argued that the matter was no longer personal for the original parties involved, saying it has assumed a national dimension with global attention and as such, entails that caution must be observed.

The plaintiff had insisted that if there was no extant order of the court, the 1st defendant, Jonathan, may pre-empt the due process of the court.

According to him, the face-off between the former CJN, Justice Katsina-Alu  and the PCA, shook the entire judiciary to its very foundation and climaxed when the PCA instituted a court action against the then CJN at the Federal High Court, saying there was a grave concern among Nigerians particularly at the Bar, concerning the integrity of the judiciary.

Describing the judiciary as the most sacred arm of the three arms of government, the plaintiff, contended that as the last hope of the common man, its sacredness ought to be preserved through the instrumentality of the law and due process.

Those were exactly the same arguments that were canvassed by Adoke, thus, raising questions as per the real sponsor of the said litigation.

Besides, another legal practitioner, Mr Wilfred Okoli, has also gone to court to seek a declaration that President Jonathan is not under any constitutional obligation to act upon the recommendation on the NJC on the issue of Salami.

Joined as defendants in the suit were the NJC, the AGF, Justice Salami himself, and President Jonathan.

Other reliefs sought by the plaintiff includes a declaration that the NJC cannot deliberate on an issue which is a subject of litigation.

A declaration that the 4th Defendant’s right to act or not to act upon any recommendation made to him by the 1st Defendant is uninhibited.

A declaration that it is only a court of law duly created by the 1999 Constitution of the Federal Republic of Nigeria (As Amended) that has the power to hear and determine matters between parties.

A declaration that judicial powers are vested in the courts by virtue of section 6 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended).

An injunction restraining the 4th Defendant whether by himself, agents, servants, assigns, privies, or whosoever purporting to act on his behalf from acting on the recommendation /advice given by the 1st Defendant as it relates to the reinstatement of the 2ndDefendant.

As well as an injunction restraining the 1st Defendant whether by themselves, agents, servants, assigns, privies or whosoever purporting to act on their behalf from deliberating on issues that are subject of litigation.

He urged the court to determine whether president Goodluck is constitutionally bound to accept and act upon the advice/recommendation of the NJC in respect of any judicial officer.

“Whether the 1st Defendant can deliberate on an issue which is a subject of litigation having regards to the extant provisions of section 6 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended)? and if the answer is NO: “Whether the deliberation and the decision reached in respect of the reinstatement of the 2nd Defendant is not ultra vires the statutory power of the 1st Defendant having regards to the extant provisions of Section 6 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended)? and if the answer is Yes:

“Whether the 4th Defendant can be compelled by any order of the court to accept and act upon the recommendation of the 1stDefendant as it relates to the reinstatement of the 2nd Defendant? and if the answer is NO:

“Whether the decision /recommendation/advice made by the 1stDefendant to the 4th Defendant pursuant to the functions assigned to her by the third Schedule to the 1999 Constitution of the Federal Republic of Nigeria (As Amended) placed a mandatory duty on the 4th Defendant to act upon same. And if the answer is NO:

“Whether the constitution of section 153 of the 1999 Constitution of the Federal Republic of Nigeria (As Amended) when read alongside paragraph 21 (b) & (f) of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria (As Amended) places a mandatory duty on the 4th defendant to accept and act upon any advice given by the 1st Defendant.”

It would be recalled that the NJC had at the end of a stormy emergency session it held on May 10, asked President Jonathan to reinstate Salami, nine months after he was suspended on allegation that he lied on oath against the immediate past CJN, Justice Katsina-Alu.

Salami had in an affidavit he deposed before a Federal High Court in Abuja, alleged that the ex-CJN pressurized him to pervert justice in a gubernatorial election appeal dispute involving Sokoto State.

Though Salami personally deposed the affidavit in a suit he filed with a view to aborting purported plans by the former CJN to push him to the apex court bench, the NJC, after its meeting on August 10, gave the PCA, seven days to tender a written apology to Justice Katsina-Alu and the council, saying two separate panels it constituted to probe alleged the feud, found him guilty of “judicial misconduct”.

According to NJC, “having therefore established that the allegation/complaint by the President, Court of Appeal, Hon. Justice Isa Ayo Salami, OFR, against the Chief Justice of Nigeria, Hon. Justice Aloysius Katsina-Alu, GCON regarding the Sokoto Gubernatorial Election Appeal was false.

“Council decided that it is misconduct contrary to Rule 1(1) of the Code of Conduct for Judicial Officer of the Federal Republic of Nigeria.”

Meanwhile, following refusal of the embattled PCA to apologize or recant his allegation, the NJC, via a statement that was signed by itsDirector of Administration, Eugene Odukwu, asked Justice Salami to hand over to the next most senior justice of the Appeal Court.

It stated that: “Pursuant to the powers conferred on the National Judicial Council in the Constitution of the Nigeria, 1999 as amended, Hon. Justice Isa Ayo Salami, OFR, President of the Court of Appeal has been suspended from office with effect from today 18th August, 2011.

“The decision was reached at the 7th Emergency Meeting of the Council held on 18th August, 2011.

“The decision reached at the National Judicial Council further directs that Hon. Justice Salami should hand over the affairs of the Court of Appeal to the next most senior justice of the court.”

However, the council failed to make any reference to the suit filed by Salami, which is still pending before the Abuja Division of the Federal High Court.

Salami had in the said suit, queried the report of the Justice Umaru Abduallahi led judicial probe panel which investigated the uncanny stand-off between him and Katsina-Alu.

Another sub-committee of the NJC, headed by the Chief Judge of the Federal High Court, Justice Ibrahim Auta, which reviewed the report of the Abdullahi led Committee, had in its own report, recommended that Salami be cautioned and asked to apologize, saying the impasse was capable of eroding confidence from the Nigerian judiciary.

Not satisfied with the way the investigation was handled, Salami, pleaded the high court to declare that the setting up of the NJC Investigation Committee and its composition were in gross violation of the principles of natural justice, and his constitutionally guaranteed right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999(as amended) and is therefore unconstitutional, null and void.

Joined as defendants in the suit were the NJC, the current CJN, Justice Dahiru Musdapher, the ex-CJN, Hon. Justice Aloysius Katsina-Alu, and members of the fact finding committees, Hon. Justice Umaru Abdullahi; Hon. Justice Emmanuel Ayoola; Hon. Justice Dominic Edozie; Hon. Justice Michael Akpiroroh; Mrs. Rakia Sarki Ibrahim; Hon. Justice Ibrahim Ndahi Auta; Hon. Justice Kate Abiri; and Hon. Justice Peter Umeadi.

He argued his case through three Senior Advocates of Nigeria, Chief Akin Olujinmi(SAN), Rickey Tarfa (SAN); Chief Adeniyi Akintola (SAN).

Meanwhile, having conducted its investigations, the NJC, which earlier challenged the jurisdiction of the high court to hear Salami’s suit,  contending that it ought to have been filed before the National Industrial Court, made a U-turn by imploring President Jonathan to go ahead and recall the PCA so as to the protracted imbroglio that has severely battered the image and integrity of the judiciary, a request that was refused on the advice of the AGF.