By Kingsley Fanwo
I watched a very popular programme titled ‘Journalist Hangout’ on TVC, a respected Television News Station on DSTV on 15th April, 2019. The topic of discussion on the programme was the non-payment of salaries to Judiciary Staff in Kogi State and the alleged attempt by the Executive to remove the Chief Judge of the State. Discussants on the programme stated amongst other things that the non-payment of staff in the Judiciary in Kogi State started in June, 2018 when the Chief Judge of Kogi State granted bail to Senator Dino Melaye in a criminal case before him, against the alleged wishes of the Governor of Kogi State. It was argued and concluded on the programme that if Kogi State Civil Servants working in the Judiciary are asked by the Executive to collect a few months’ salary via cheques, it offends the doctrines of the independence of the judiciary and separation of powers!
Apart from the discussion on this programme, a lot of wild stories regarding the Kogi State Judiciary and the alleged role of the Executive in the crisis into which the Judiciary plunged itself in the State have also been circulating on social media platforms. It is against this backdrop that I try to address the apparent misinformation and maybe lack of information on this matter.
When the Government of Alhaji Yahaya Bello came into office on the 27th day of January, 2016, it identified 5 thematic areas for special focus. One of them was Public Service and Pension Reforms. The Public Service and Pension reforms began with a screening exercise which though arduous has been hailed as successful in exposing waste, corruption (Ghost Worker Syndrome), Certificate forgery and inefficiency in the Kogi State Public Service. While Staff in the Executive and Legislative arms participated in the Screening exercise, the Governor upon assurances by the Chief Judge that the Judiciary regularly carry out its internal screening, excluded it from the screening exercise. This is verifiable.
The administration has not only steered clear of the Judiciary in the matters of its independence but has bent over backwards to promote same. Since the administration of Alhaji Yahaya Bello, the judiciary has also benefited from the resources of the state as follows:
1. Purchase of 13 Brand New Prado Jeeps for Judges of the High Court and a Toyota Land Cruiser V6 for the Chief Judge.
2. Tarring of all internal roads and creation of befitting car parks and environment within the Headquarters of the Kogi State High Court Complex.
3. Payment of Monthly Security Allowances of N200,000.00 to Judges of the High Court of Kogi State.
4. Regular release of Subvention to the Judiciary.
5. Renovation of the Chief Judge’s Court for the first ever Court of Appeal’s special Court sessions in Lokoja.
6. Payment of about 65 Million Naira for the Chief Judge’s medical expenses.
7. Conference allowances for Judges.
All these were done inspite of paucity of funds in Kogi State and inspite of other pressing and competing financial demands from other areas of governance in Kogi State.
Desirous of building on the gains made from the screening exercise, Government and organised labour in Kogi State, specifically the Nigerian Labour Congress (NLC) and Trade Union Congress (TUC) continued to express worry over the size of the State’s wage bill which was effectively eating up and sometimes overshooting the State’s Monthly Federal Allocations. Government and Labour, therefore, continued to dialogue on ways to monitor the disbursement of salaries with the aim of eradicating leakages wherever found.
Prior to the then-imminent disbursement of the 2nd Tranche of Kogi State’s share of the Paris Club Refund, the NLC, TUC and the Public Service Joint Negotiating Council (PSJNC) agreed with the Government on what percentage of the expected sum should be used in paying salaries and the modalities for the disbursement. It was agreed that salaries payments from the funds be made via a pay parade/table payment exercise across board. This was to enable parties monitor the disbursement of the funds and also help to deepen verification of the current staff strength/wage bill. Further to the above agreement, Government approved that the table payment exercise proceed simultaneously with a Biometric Data Capture and Enrolment of Public Servants. The Pay Parade/Table Payment exercise approved therefore meant that a Public Servant (excluding the Judges whose salaries/allowances are paid by the National Judicial Council ‘NJC’) will physically present himself to the Payer (a joint committee of consultants, Management Staff of the concerned arm of Government and representatives of government and organised labour respectively). Public servants were to present themselves at their place of work and physically collect their several months pay via cheques, while their Biometric data are simultaneously captured for the digitisation process.
The exercise commenced with State civil servants and workers in the Legislature and was later extended to Political office-holders including the Governor who presented himself before the joint committee for capturing. At the end of the exercise and till date, over 400 (Four Hundred) Workers did not show up to pick up their Cheques thereby saving the State, funds running into hundreds of millions of Naira which ordinarily would have gone into the hands of ghost workers or their proprietors.
An invitation was extended to the Judiciary for its participation in the Pay Parade/Table Payment Exercise. The Chief Judge of Kogi State whose salary is not paid by the State Government and who is not affected by the exercise, caused the Chief Registrar of the High Court to write a reply stating that the Judiciary will not participate in the exercise as it allegedly violated the principles of separation of powers and the independence of the Judiciary. The said invitation was never brought to the attention of the State Judicial Service Council (JSC), the executive body charged with the responsibility of appointing and exercising disciplinary control over the State’s judicial staff. While the JSC is chaired by the Chief Judge; heads of other Courts, the Attorney-General of the State, Lawyers and other members of unimpeachable integrity are members of the body. The Chief Judge and the Chief Registrar however constituted themselves into ‘the Judiciary’ in Kogi State and unilaterally decided that ‘the Judiciary’ would not participate in a State Government and Labour approved exercise.
One begins to wonder how the payment of Judiciary Staff via cheques (a purely administrative matter) coupled with Biometric capturing of State Judicial Workers for record and planning purposes impinges upon the independence of the judiciary or separation of powers. The Staff are State Workers appointed by the Judicial Service Commission (a body which by virtue of the Constitution is an Executive Body who may by approval of the Governor by rules or otherwise regulate its own proceedings: see S197 (1) & 204 of the 1999 Constitution).
Of important note is the fact that Table Payment across all the arms of Government in Kogi State is not strange, same having been carried out in Kogi State under the administration of Alhaji Ibrahim Idris. Judiciary Staff including Magistrates participated in the exercise. Table Payment has also been done across the 3 arms of Government in some states of the Federation and the FCT without the Chief Judges in those States alleging infringement of judicial independence.
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It is therefore curious that the Chief Judge of Kogi State and the Chief Registrar would gang up and blatantly refuse to participate in an exercise which is meant to ensure transparency, accountability and probity. It must also be noted that contrary to the fallacies been churned out to the public by their hirelings, table payment of workers of Public Servants does not in any way contravene any law or indeed the 1999 Constitution (as amended).
Meanwhile, due to the hard stand of the Chief Judge, Public Servants in the Judiciary could or would not access their salaries. Consequently, the Kogi State chapter of the Judicial Staff Union of Nigeria (JUSUN) on 7th December, 2018 gave a notice of strike. JUSUN by their Notice of Strike stated that the Courts would be shut down indefinitely from Tuesday, 11th December, 2018. True to its words, JUSUN effectively shut down all Courts in Kogi State on the 11th day of December, 2018 as litigants, lawyers, judicial staff and Judges could neither access the Courts nor transact any official business.
With the turn of events, the seemingly helpless State Government requested the Legislature to ‘look into the matter and help provide guidance and the way forward’. The Kogi House of Assembly at its siting of 11th December, 2018 passed a resolution setting up an adhoc Committee of the House of Assembly to ‘look into the matter with a view to proffering amicable solution’ thereto.
Quite curiously and during the strike action, Justice Ajanah and the Chief Registrar, Alhaji Yahya Adamu, perhaps fearing that the adhoc committee would invite them and possibly prevail on them to participate in the exercise, took out Originating Summons and a Motion ex parte/Motion on Notice all dated 12th December, 2018 and approached the High Court, Koton Karfe Division seeking amongst other prayers orders of injunction restraining the adhoc committee of the House of Assembly, the Assembly, the Speaker and the State Government from interfering in any way detrimental to them in the discharge of their duties as the Chief Judge and Chief Registrar. They also sought an order restraining the House of Assembly, the Speaker and the Chairman of the Adhoc Committee set up by the House from taking cognizance of the report to be submitted by that Committee.
On the same 12th December, 2018 while the strike was raging and the Kogi State Judiciary lay supine, the Motion Ex parte filed on the same date was said to have been heard and granted and an enrolled order dated 12/12/2018, signed and sealed under the hand of the presiding Judge, Justice Alaba Omolaye-Ajileye issued. The Court granted the interim orders of injunction pending the determination of the Motion on Notice (1) restraining the Adhoc Committee of the House of Assembly and other parties from interfering in any way detrimental to them in the discharge of their duties as the Chief Judge and Chief Registrar, (2) restraining the House of Assembly, the Speaker and the Chairman of the Adhoc Committee set up by the House from taking cognizance of the report to be submitted by that Committee.
The Enrolled Order, the ruling which gave rise to the Enrolled Order, the Originating Summons and Motion on Notice were all served on parties on 14th December, 2018 however by the 13th day of December, 2018 Daily Trust and Vanguard Newspapers and other numerous online new sites had reported the grant of the injunction. Upon studying the court papers served on her, Government was shocked to discover on the face of the documents that while the Ruling which gave rise to the Enrolled Order was said to have been delivered on 13th December, 2018, the Enrolled Order (short form of the ruling containing the orders) which was signed under the hands and seal of the Judge was dated and signed on the 12th of December, 2018, a clear case of putting the cart before the horse!
It became clear that the principal actors in this comedy of errors had backdated the Order of the Court to ensure that any acts of the House of Assembly capable of ensuring that Public Servants in the Kogi State Judiciary receive their salaries at the earliest opportunity is frustrated. Despite the glaring abuse of the process of court and the irregularities inherent in the Orders and Ruling of the Court including the whole process of procuring the order during a Strike; the House of Assembly and indeed the Adhoc Committee set up by the House of Assembly stopped all actions geared towards achieving an amicable resolution of the issues.
At this point, it became clear to many including myself that the Chief Judge of Kogi State and Chief Registrar of the Kogi State High Court had something to hide with respect to the number of staff on the judiciary’s payroll and how much was indeed being utilised for their salaries. The duo do not believe they should be accountable to anyone for monies released to them for the payment of salaries and running of the Courts. It also became clear that the duo did not have the interest of the workers at heart as they continue to cling to their illogical interpretation of the provisions of the Law and the Constitution to deny the hardworking judicial staff of the State their wages.
Once again, Justice Omolaye-Ajileye, fully determined to forge ahead with these irregular proceedings, fixed the return date for the hearing of the Motion on Notice to 18th December, 2018 with the strike still on. On the 18th December, the Court sat with the full complement of the judiciary staff who were supposed to be on strike. The Court again sat on 4th February, 2019 in respect of the matter and adjourned same to 11th March, 2019. On 11th March, 2019 the Court was said to be indisposed hence the Registry imposed the 28th of April, 2019 on parties. The Defendants however were served with a Motion on Notice filed on 5th April, 2019 which was set down for hearing on 12th April, 2019. While the Court did actually sit on the said 12th April, 2019, we will discuss the events of that day much later in this piece.
It is important to note at this point that through all these adjournments and court sittings, the Court and indeed the Registry of the High Court were solidly shut to all other litigants and lawyers. The Chief Judge, the Chief Registrar and their lawyers are the only ones being served by the Kogi State Judiciary for nearly 6 months now. They approach the Court’s Registry at will to file papers while lawyers to the Defendants in the same matter have to wait till the morning when the matter is to come up for hearing because the Registry was not open to business within the normal work days and hours. I have never seen such a blatant and partisan use of the Court by a member of the Judiciary to achieve his personal and partisan goals.
Meanwhile, by virtue of Section 125(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the Auditor General of the State is empowered to audit the accounts ‘of all offices and courts of the State’ and submit his reports to the House of Assembly who shall by its Public Accounts Committee consider the report (S 125(5)). By virtue of the foregoing, the Auditor General’s report for the year 2016 for the High Court of Kogi State and other Ministries, Departments and Agencies of Government were submitted to the House of Assembly and considered by the Public Accounts Committee of the House of Assembly. The Committee by practice would invite officials of any court or visit any of the Courts, Ministries, Departments and Agencies where infractions of the Financial Regulations, Appropriation Law or other Laws are suspected with the aim of affording fair hearing before making recommendations to the House of Assembly.
For the High Court, the Audit Report showed that under the leadership of the Chief Judge and the Chief Registrar, severe irregularities were rife. For instance:
a. Cash withdrawal of over N137, 000,000.00 (One Hundred and Thirty Seven Million Naira) during the period under review in contravention of extant Financial Regulations.
b. Expending the Judiciary budget above the approved limits provided in some subheads to amounts running into several millions without approval of virement application.
c. Failure to deduct withholding tax from contracts awarded by the Court contrary to extant financial regulations.
Based on the above, the Public Accounts Committee extended invitations to the Chief Judge and the Chief Registrar thrice to appear before the Committee but they refused to show up or even acknowledge the invites. The Public Accounts Committee saw their refusal to appear as an affront to the authority of the Committee and indeed the House of Assembly as well as a ploy to avoid answering for the various infractions discovered.
The Committee deemed the conduct of both principal officers of the Kogi State Judiciary to amount to gross misconduct. The Committee therefore concluded her assignment and recommended to the House of Assembly that the Chief Judge be removed from office for gross misconduct or be asked to step aside. The Chief Registrar on his part was referred to the State Judicial Service Commission which appointed him for appropriate disciplinary actions.
Thereafter the Kogi State House of Assembly pursuant to the recommendations of the House Committee on Public Accounts and pursuant to its powers under Section 292 (1) (a) II of the Constitution at its sitting of 2nd April, 2019 adopted the report of its Public Accounts Committee and by an address supported by two thirds majority of the Kogi State House of Assembly recommended to the Governor that the Chief Judge of Kogi State be removed from office for Gross Misconduct.
The Chief Registrar was referred to the State Judicial Service Commission for disciplinary actions while it was directed that the Salaries of Judicial Workers be paid immediately.
The Governor has since communicated the receipt of the address from the House of Assembly to the National Judicial Council and awaits their response. The State Government has however not been able to proceed to pay judicial staff as the Chief Judge and the Chief Registrar have refused to release the payroll necessary to commence the exercise till now. The Governor has at different fora appealed to the Chief Judge, the Chief Registrar and JUSUN to co-operate with the Executive and commence the exercise to enable workers whose salaries sit idly in the bank to access same. So far those pleas have been rebuffed/ignored.
The Chief Judge and the Chief Registrar upon receipt of the news of the House of Assembly’s resolution rushed to their ‘personal’ Court again on 5th April, 2018 to file a Motion asking the Court to nullify the resolution of the House of Assembly praying for removal of the Chief Judge and disciplinary actions against the Chief Registrar. Their reasons for the Motion was that the House of Assembly’s resolution was made during the pendency of their suit and secondly that there was an extant order restraining the Defendants including the House of Assembly from interfering in any way detrimental to the office of the Chief Judge and the Chief Registrar. Surprisingly, a Court which was said to be indisposed and had as a result imposed the 28th day of April, 2019 on parties and declaring same as sacrosanct suddenly fixed the Claimants’ Motion for the 12th day of April, 2019.
Upon hearing of the continued sitting of the Koton Karfe Court during the strike, aggrieved workers who now knew that it was the Chief Judge, the Chief Registrar and their JUSUN State Executives who were behind their inability to receive salaries thronged the Koton Karfe Court in the morning of the 12th April, 2019. They carried placards, chanting war songs and insisting that no Court would sit until their salaries were paid. The protests soon turned violent as Protesters started burning tires and planks with a threat to burn down the Court. It took Government’s intervention to get the Police and DSS to the Court and secure the premises and the judge. The Protesters were eventually dispersed, however some still lurked around with a promise to mobilize more members to ensure that the Court does not sit. With the intervention of the Police, the Court was able to sit and transact the business of the day. Justice Omolaye-Ajileye even attempted to give the ruling after a 2-hour stand-down. However, towards the tail end of the sitting, the protesters became restive again and started thronging the Court. With most of the DSS and some of the Policemen gone, and with the small detachment left behind in danger of being overrun, they advised the Judge, Court staff and lawyers to leave the premises. The Judge quietly left the premises without even informing the lawyers who were waiting on His Lordship. Court Staff later made it known that Justice Alaba Omolaye-Ajileye had left the Court.
Before long, it was all over the news that the Police vacated the court premises on ‘orders from above’, which is far from the case. The same erroneous insinuation was made on TVC’s Journalist Hangout. It was stated that the Governor was using the House of Assembly to remove the Chief Judge at all cost. In all of this, beyond minuting the resolutions of the House to the NJC, the Governor has taken no steps whatsoever in either direction, whether for or against.
Firstly, it is the contention of the House of Assembly and other Defendants before the Court that the subject matter of the suit was a call by the executive to intervene to enable judicial staff participate in the table payment exercise whereupon the Chief Judge of Kogi and the Chief Registrar, as Claimants, procured an injunction preventing the House from further acting thereon upon which they had so ceased to act. The House insists that whereas their present resolution was based on the exercise of their constitutional duties of oversight and investigation of any person as to compliance with the appropriation laws and financial regulations of the state in the use of monies appropriated by the House of Assembly.
Secondly, the Kogi State House of Assembly is of the view that in the unlikely event that the Court held that the subject matter of the current suit before them was same with that which led to the resolution of the House removing the Chief Judge, the interim orders of injunction granted on the 13th day of December, 2018 and extended on the 18th day of December, 2018 had elapsed by virtue of Order 11 Rule 10 (2) of the Rules of the Kogi State High Court Civil Procedure Rules 2006. That rule provides that an order of interim injunction granted via an ex parte application will last for a period of 7 days while any extension of same would also lapse 7 days thereafter. It therefore follows that as of the 25th day of December, 2018 there was no order of any Court preventing the Kogi State House of Assembly from taking any steps regarding the Chief Judge and Chief Registrar.
Coming away from all the legalese, it is clear that:
1. There is no personal battle/problem between the Chief Judge of Kogi State and the Governor of Kogi State as is been insinuated.
2. The alleged rift between the Executive and the Judiciary does not exist in fact but same is a contrivance of the Chief Judge and the Chief Registrar.
3. Most Judges in Kogi State can attest to the deep respect and atmosphere of conviviality which the Executive Governor of Kogi State has created for the discharge of their judicial duties.
4. The Chief Judge and the Chief Registrar do not want to be accountable to any other organ of Government contrary to the principles of checks and balances.
5. The Executive is only insisting on the table payment exercise for payment of salaries of only a few months to judicial staff while other months are paid to the heads of Courts for disbursement to workers via their accounts.
6. The Exercise is to ensure transparency, accountability and probity.
7. The exercise does not in any way impinge on the independence of the Judiciary but is in keeping with the doctrine of checks and balances.
8. It is the Chief Judge of Kogi State, the Chief Registrar and the Judicial Staff Union of Nigeria, Kogi State Branch who are preventing the payment of salaries of Judicial Staff.
9. This state of affairs deprives not only judicial staff their salaries but also deprives Lawyers their livelihood, litigants their claims, Prisoners their freedom and poses a great threat to the administration of criminal justice system in Kogi State.
I pray that wisdom prevails and the Chief Registrar who is the Chief Accounting Officer of the Court take steps to ensure that the Table Payment exercise is carried out as soon as possible.
Kingsley Fanwo is Director General of Media and Publicity to the Governor of Kogi State