Supreme Court

BY ISE-OLUWA IGE

In this report, Vangfuard Law and Human Rights examines relevant provisions in the 1999 Constitution on the powers of appointment and discipline of judges of superior courts of records in the country;  dissects the ratio decidendi in the February 25, 2022 judgment of the Appeal Court which voided the 2014 compulsory retirement of Justice Gladys Olotu from the high court bench; scavenges the likely implications of the Appeal Court verdict on all the disciplinary actions so far taken by the executive arm of government against errant judges in Nigeria on the sole recommendations of the NJC without any recourse to FJSC and argues that the awaited pronouncement of the S’Court on the powers of NJC regarding judges’ discipline is one that must not be delayed further for the purpose of stability of the third arm of government.

Except the Supreme Court of Nigeria rules otherwise, the powers of discipline solely exercised by the National Judicial Council, NJC, in the last 22 years, over serving judicial officers in superior courts of records nationwide, may be whittled down.

It will be recalled that a three-member panel of the Abuja Division of the Court of Appeal, had on February 25, 2022, declared that the National Judicial Council, NJC, under the law, does not have the sole powers to discipline erring judges in the country without recourse to the Federal Judicial Service Commission, FJSC.

Specifically, the intermediate appellate court had ruled that the FJSC, given the provisions of the constitution, must be aware of any infraction committed by any erring judge and make recommendations regarding the affected judicial officer to the NJC before the Council itself can proceed with investigation of such judicial officer and possible recommendation for sanction to the applicable head of the executive arm of government for endorsement.

The decision which appears a time-bomb, has fundamentally altered the status quo.

This is so because the NJC had solely exercised the powers of discipline over judges since 1999 when it was established by section 153 of the 1999 Constitution without any recourse to the FJSC.

In the event the apex court sustains the reasoning of the Court of Appeal, it is not unlikely that there could be a floodgate of lawsuits by many judicial officers who were previously sanctioned by sitting Presidents or state governors upon recommendations by the NJC between 1999 when the present Constitution was decreed into law by the Federal Military Government, and 2022 when the case law in question came into being.

Fully aware of the dangerous implications of the decision, the National Judicial Council did not file its appeal to the judgment immediately until after it had consulted widely on what its position on the matter would be.

In fact, before the NJC could act, time allowed by law to appeal was already spent.

According to NJC’s Chief Legal Officer, Uju Lisa Ekwulu, the Council after meetings, decided to hire a consortium of lawyers led by Prince Lateef Fagbemi (SAN) to handle the sensitive issue at the apex bench.

In an affidavit deposed to by Ekwulu to secure the leave of the court to appeal the decision out of time, she disclosed that the NJC on April 25, 2022 briefed new counsel, made up of a consortium of lawyers headed by Prince Lateef O. Fagbemi, SAN to lead other distinguished senior members of the bar, namely: Paul Usoro, SAN; Dr. Garba Tetengi, SAN; Muiz Banire, SAN and Yakubu Maikasuwa, Esq., to file an appeal to the Supreme Court challenging the Court of Appeal’s decision.

Ekwulu’s exact words in the affidavit: “I know as a fact that the delay in briefing the consortium of new lawyers to represent the Appellant/Applicant was due to the administrative bottlenecks and red-tapes involved in the process of briefing an external counsel/solicitor in the Appellant’s Council.

“Although at the time of briefing Prince Lateef O. Fagbemi, SAN, and the consortium of lawyers so briefed, the time prescribed by the rules of the Honourable Court for bringing an appeal had not lapsed but was significantly spent.”

The deponent averred that she was informed by NJC’s lead counsel, Prince Fagbemi (SAN) that “the consortium of lawyers met three times inclusive of 19th May, 2022 to agree on what and how to proceed with this matter.

“Unfortunately, his earlier commitment(s) as a member of the Legal Practitioners’ Privileges Committee, LPPC, which has been meeting repeatedly in May, 2022 made him unable to get to the work on time and conclude same, until the time for the filing of this Application had lapsed;

“That he knows as a fact that the Appellant/Applicant is out of time within which to file its Notice of Appeal and there is the need to seek the leave of the Honourable Court to file the Notice of Appeal out of time.”

The application before the court is meant to regularise the process filed by the NJC before the Supreme Court to set aside the Court of Appeal decision on the extent of powers exercisable by the NJC in judges’ discipline.

Genesis of constitutional suit before  S’Court

Vanguard Law and Human Rights reports that Justice Olotu was appointed a Federal High Court Judge by former President Olusegun Obasanjo on July 28, 2000, and inaugurated by the then Chief Justice of Nigeria, Justice Mohammed Lawal Uwais on September 1, 2000.

Olotu had a glorious time in the judiciary right from her days in the Edo State judiciary where she started as a Magistrate in 1991 and climbed the judiciary ladder until she was found appointable as a judge of the Federal High Court of Nigeria in 2000. She benefitted from the first few appointments President Olusegun Obasanjo made into the Federal High Court bench after he came into power in May 1999.

But sometime in 2013/2014 when the leadership of the NJC was under the first female Chief Justice of Nigeria, CJN, Justice Mariam Aloma Muhktar, not less than six petitions were written against Justice Gladys Olotu.

Some were alleging corruption while there was one alleging infraction of the constitutional provision on the maximum time allowed by law to deliver judgment in a case handled by a judge to guard against justice delay.

The judge was served copies of the petitions while she was invited to appear before a Fact-Finding Committee set up to investigate all the allegations in the petitions.

After the first committee sat, another probe panel was set up by Justice Aloma-led NJC to look into the petitions’ grey areas in the report of the first panel.

The second Committee eventually found Justice Olotu guilty on a lone count of delivering judgment in a case out of time allowed by law.

Afterwards, the NJC subsequently recommended Justice Gladys Olotu to Dr Jonathan Goodluck who was the President at the time, for compulsory retirement.

The Acting Director of Information of the NJC, Soji Oye, had, in a statement, explained in 2014 thus: “The National Judicial Council, under the Chairmanship of the Chief Justice of Nigeria, Justice Aloma Mukhtar, at its meeting which was held on February 26, 2014, recommended the compulsory retirement from office of Justice G . K. Olotu of the Federal High Court and Justice U. A. Inyang of High Court of Justice of the Federal Capital Territory, Abuja, respectively for gross misconduct.”

The statement said the recommendation for compulsory retirement of the two judges was based on findings made by the NJC after investigations into allegations contained in petitions brought against them.

According to the statement, the NJC had found that Justice Olotu “failed to deliver judgment in Suit No. FHC/UY/250/2003, 18 months after the final address by all the counsel in the suit, contrary to the constitutional provisions that judgments should be delivered within a period of 90 days.”

By the decision of the NJC, the career path of Justice Olotu was truncated as she was sacked from office on February 26, 2014 at the age of 54 years.

Although Justice Olotu was directed to proceed on suspension pending the approval of its recommendation by the Head of the federal executive arm of government, former President Goodluck Jonathan did not waste time to give his approval.

The then Attorney-General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN, had announced that Olotu’s compulsory retirement took effect from Monday, March 3, 2014.

Justice Olotu kicks, sues NJC, FG

Three days after Justice Olotu was effectively removed from the bench, she approached a Federal High Court sitting in Abuja with an application of certiorari to quash the recommendation of the NJC and invalidate the approval granted by the President on her sack.

That was March 6, 2014.

Joined in the suit as co-respondents were the former President Jonathan, the NJC, the Chief Justice of Nigeria, the Chief Judge of the Federal High Court, and the Attorney-General of the Federation.

But the Federal Government in its written submission had asked the court to strike out the suit.

In the preliminary objection filed by its counsel, Taiwo Abidogun, from the office of the Attorney-General of the Federation, the government said the court lacked the jurisdiction to entertain the suit on the account that sections 251 and 254 of the 1999 Constitution exclusively conferred jurisdiction on matters pertaining to the employment and retirement of Justice Olotu on the National Industrial Court, NIC.

The matter eventually moved to the NIC where Justice Olotu’s team of lawyers led by Dr Alfred Eghobamien, SAN; Ladi Rotimi-Williams, SAN and Sunday Ameh, SAN, argued that section 36 of the 1999 Constitution was breached by the NJC and its Investigative Panel in arriving at their recommendation for her compulsory retirement.

Justice Olotu further contended that the petition against her, upon which NJC acted, bordered on her failure to deliver a judgment within 90 days and not on misconduct that could carry heavy punishment such as compulsory retirement.

She complained that the recommendation by the NJC to the President for her compulsory retirement as a High Court Judge was done in bad faith and in breach of extant codes and rules applicable to her appointment.

She said she got to know about her sack on February 27, 2014, through a press statement the NJC released to the media.

While the matter was still in court, the baton of leadership at the National level had changed hands from Dr Goodluck Ebele Jonathan to President Muhammadu Buhari who was touted as a no-nonsense Army General with zero-tolerance for corruption and injustice.

Why I was sacked— Justice Olotu

Sometime in October 2016, the sacked judge attempted a political solution to her case as she wrote a 13-page letter to President Muhammadu Buhari, urging him to intervene in her case.

In the letter, Justice Olotu told President Buhari that she was a victim of victimisation orchestrated by a former Chief Justice of Nigeria, Justice Aloma Muktar, who was working with some powerful figures in the judiciary.

Mrs. Olotu stated that she was compulsorily retired by the former CJN in order to satisfy “the wicked agenda of some judicial consultants” that wanted her to pervert the course of justice which she refused to do.

According to the former judge, her ordeal started because she did not accede to the request of a former CJN, Justice SMA Belgore, and Chief Gabriel Osawaru Igbinedion to pervert the course of justice in some cases involving a widow and her children in suit No. FHC/UUY/CS/250/2003 and a case involving Mrs. Mona Youssefian and three others vs. Elf Petroleum Nigeria Limited.

She added that in the suit filed before a Federal High Court in Uyo, the widow and her children sought redress over alleged negligence that led to the death of their husband and father on board a hotel vessel operated by the defendants.

Mrs. Olotu stated that she gave judgment in favour of the family, which they sought to enforce in garnishee proceedings filed in the Port Harcourt Division of the Federal High Court.

According to the petitioner, the judicial consultants, acting on behalf of Elf Petroleum and other defendants wanted her to vacate the garnishee order she made but she refused.

“When I refused to do so, I incurred their wrath. This is my real offence and not any other picture Justice Aloma painted to the world,” Mrs. Olotu said.

She added that the former CJN unconstitutionally used the instrumentality of her offices as CJN and Chairman of the NJC to further the vendetta of the judiciary consultants.

Mrs. Olotu further alleged that the immediate past Attorney-General of the Federation, Mohammed Bello Adoke, was also conscripted into the conspiracy by misleading President Jonathan into approving the recommendation for her compulsory retirement, stating that the former CJN also withheld several material facts including her entire defense to the petition written against her.

She went further to say that her retirement contravened several constitutional provisions, particularly Section 36 on fair hearing, adding that she wrote several letters to former President Jonathan but to no avail.

The former judge urged President Buhari to “please pay attention to (her) relentless cry for truth and justice.”

NIC throws out Justice Olotu’s case

While Justice Olotu was still awaiting action from President Buhari, the National Industrial Court fixed judgment in the lawsuit filed by her.

Specifically, the trial judge, Justice E. N. Agbakoba on September 20, 2017, threw out her case and declined to compel President Muhammadu Buhari and the National Judicial Council, NJC, to recall Justice Gladys Olotu to office.

The trial court had held that the NJC acted rightly when it recommended the Judge for compulsory retirement.

The court said there was no evidence that the investigative panel of the NJC that indicted Justice Olotu breached the tenets of natural justice or failed to follow laid down procedures before recommending her for compulsory retirement.

Olotu runs to Appeal Court

Dissatisfied with the National Industrial Court’s decision, Justice Olotu approached the Court of Appeal in Abuja for redress.

On February 25, 2022, a three-member panel of the intermediate appellate court, led by Justice Peter Ige, held among others, that the process leading to Justice Olotu’s removal was flawed and must therefore collapse.

Justice Danlami Senchi, who read the lead judgment, held that since the Federal Judicial Service Commission did not recommend that Justice Olotu be compulsorily retired, the recommendation made by the NJC to the President in that regard was not only inchoate but also unlawful, null and void.

Justice Senchi noted that since the FJSC is constitutionally empowered to recommend lawyers for appointment as Federal Judges, its recommendation is also necessary before such a judge could be relieved of his or her appointment.

He proceeded to hold that without the FJSC first recommending a judge for removal as envisaged under section 13 (b) of the First Schedule to the 1999 Constitution, such recommendation by the NJC (as it is in the case of Justice Olotu) and the subsequent acceptance of the recommendation by the President is a nullity.

The Appeal Court thus set aside the earlier judgment by Justice E. N. Agbakoba of the NICN which upheld Justice Olutu’s compulsory retirement.

Implication of the Appeal Court decision

By implication, the judgment in Justice Olotu’s case, according to analysts, may be likened to a time-bomb capable of scattering all that the NJC had done in the last 22 years.

Vanguard Law and Human Rights reports that since the NJC came into existence by the virtue of the 1999 Constitution and began operations in 2000, it has solely exercised powers over judges’ discipline.

In its 22 years of operation, it has recommended over a thousand judges for various disciplinary measures, ranging from issuance of warnings, ban on promotion for a specified period of time, suspension from office, compulsory retirement and outright dismissal.

From 1999 till date, NJC has recommended sanctions for all classes of judicial officers who served in superior courts of records to the executive arm of government.

The implication of the Appeal Court decision, according to analysts, is that all previous recommendations made by the NJC to either the President of the Federal Republic of Nigeria or state governors between 1999 and 2022 regarding discipline of judicial officers, were not only inchoate having not got the endorsement of the FJSC, but also invalid.

Until reversed, the Court of Appeal decision on the powers of the NJC on judges’ discipline remains the law.

Given the likely implication of the judgment of the Court of Appeal, the NJC has approached the Supreme Court of Nigeria with a request to interpret the import of section 13 (b) of the First Schedule of the 1999 Constitution on section 21 (b) and (d) of the same First Schedule of the 1999 Constitution.

Issues before the S’Court

The sole issue submitted before the Supreme Court by NJC revolves around a quick review of the decision of the Court of Appeal which appears to have altered the status quo regarding the exercise of disciplinary powers over judicial officers in the country.

The Appeal Court has specifically held that in determining who has powers over judges’ appointment and discipline, section 21 (a), (b) and (d) of Part I of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria, must be read alongside that of section 13 (a) and (b) of the same First Schedule.

What actually does the law say about the role of NJC and FJSC on judges’ appointment and discipline?

Section 21 (a), (b) and (d) of Part I of the Third Schedule of the 1999 Constitution of the Federal Republic of Nigeria provides in clear terms thus: “The National Judicial Council shall, have powers to:

(a) recommend to the President from among the list of persons submitted to it by –

(i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and

(ii) the Judicial Service Commission of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;

(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers;

(c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;

(d) recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.

In the above provisions, particularly, Section 21 (b) and (d), no role of any sort was given to the FJSC regarding the discipline of judicial officers but specific roles were assigned both the FJSC and the NJC in the appointment of judicial officers of the superior courts of records.

However, Section 13 (a) and (b) of Part I of the Third Schedule of the 1999 Constitution provides that the FJSC shall have powers to advise the National Judicial Council in nominating persons for appointment as judges and in exercising disciplinary control over them.

Specifically, Section 13 (a) and (b) of Part I of the Third Schedule of the 1999 Constitution says the FJSC shall have power to –

(a) advise the National Judicial Council in nominating persons for appointment, as respects appointments to the office of –

(i) the Chief Justice of Nigeria;

(ii) a Justice of the Supreme Court;

(iii) the President of the Court of Appeal;

(iv) a Justice of the Court of Appeal;

(v) the Chief Judge of the Federal High Court;

(vi) a Judge of the Federal High Court; and

(iv) the Chairman and members of the Code of Conduct Tribunal.

(b) recommend to the National Judicial Council, the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph; and

(c) appoint, dismiss and exercise disciplinary control over the Chief Registrars and Deputy Chief Registrars of the Supreme Court, the Court of Appeal, the Federal High Court and all other members of the staff of the judicial service of the Federation not otherwise specified in this Constitution and of the Federal Judicial Service Commission.

From the above provisions, it is without doubt that the 1999 Constitution gives roles to the FJSC in the appointment and removal of judicial officers in the country.

But it is not clearly stated whether the provisions of section 21 were sufficient in determining who exercises the power of discipline over judges in Nigeria or whether the provisions of section 21 should be read alongside those of section 13, the confusion that the Supreme Court is set to clear.

Vanguard Law and Human Rights reports that the Supreme Court of Nigeria is the highest and final court of law in the country; a vital constitutional organ in the separation of powers scheme.

The awaited pronouncement of the Supreme Court on this matter will, no doubt, either detonate the seeming‘time-bomb’ already activated by the judgment handed down by the Appeal Court in Olotu’s case in February 2022 or deactivate it if it reverses the verdict of the lower appellate court.

Whichever way the pendulum swings, this is one case that the Supreme Court must not delay in hearing not only in the interest of the judge, Justice Olotu, who has engaged the NJC in a protracted battle but also for the stability of the third arm of government that is presently in limbo following the contentious Appeal Court verdict.

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