By Chioma Gabriel, deputy Editor
The judiciary is said to be the last hope of the common man and in Nigeria’s history of elections, the judiciary is known to have  pegged the process of justice in many stolen mandates. What is perceived to have be the undoing of many at the polls are known to have been corrected by the Court.

But for the intervention of the National Judicial Council, NJC, the recent controversy surrounding the promotion of the President of the Court of Appeal, Justice Ayo Salami to the Supreme Court would have dented the image of the judiciary.

What  started like a rumour later began to gain ground and  the truth began to unfold when the man in  the eye of the storm, Justice Ayo Salami filed a protest letter to the Chief Justice of the Federation, Justice Katsina Alu rejecting his proposed promotion to the Supreme Court on the ground that it was an unsolicited offer. Justice Ayo Salami had gone  further to say it was an unholy attempt to push him out of the Court of Appeal, saying he is content with his present position.

Salami had alleged  in the  letter he wrote to Chief Justice  Aloysius Katsina-Alu that the CJ had sought to ‘promote’ him as a ploy to ease him out of the Appeal Court which he has led to deliver landmark judgements in election petition cases.

He complained in the letter that Katsina-Alu did not even deem it fit and proper to discuss the proposal with him, alleging that the CJ  “Characteristically informed members of (Federal Judicial Service Commission, FJSC) of his proposal to strengthen the Supreme Court by moving me to that court and presumably to replace me with his minion or stooge” on the Court of Appeal.

Since the controversy started, all manner of opinions have been expressed on the issue by his professional colleagues and other Nigerians. The general impression  is that Salami was  promoted out of relevance due to his landmark achievements over election petitions that were brought to the court. Some of the reviews on the situation revealed  that it is not right to nominate an unwilling applicant.

It is also being suspected that the purported promotion was the voice of Jacob and the hand of Esau in view of the upcoming elections. In any level of the judiciary, it is believed that seniority is correlative from the date of appointment.

Considering the provisions of section 14(3) of the Constitution of the Federal Republic of Nigeria, 1999 and section 4 of the Federal Character Commission (Establishment, etc.) Act, cap F7, Laws of the Federation of Nigeria, 2004, Part I of the Guiding Principles and Formulae for the Distribution of all Cadres of posts, the elevation of Justice Salami to the Supreme Court Bench would not have been appropriate.

This is because there are laid down procedures guiding such promotion, either from the High Court to the Court of Appeal Bench, vis-a-vis from the appellate court to the Supreme Court of Nigeria. This common procedure of the elevation of Justices to the higher Benches, (Court of Appeal and Supreme Court) is well spelt out and it is also statutory.

The latest elevations from the Court of Appeal Bench to the Supreme Court, for instance, were that of Justice Bode Rhodes-Vivor and Justice Funmilayo Adekeye, who were promoted last year. These promotions, without doubt followed prescribed procedure, where the regions or the states from where the appointees come from were part of the considerations looked into before they were picked.

However, the planned elevation of  Justice Isa Ayo Salami for appointment to the Supreme Court of Nigeria being an indigene of Kwara State of Nigeria from the North Central Zone that already has the maximum number of three Justices in the Supreme Court,  would have jeopardized and contradict section 4 of the Federal Character Commission (Estblishment, etc.) Act; cap F7, Laws of the Federation of Nigeria, 2004.

Meanwhile, to put the matter under control, three new Justices are being considered to the Bench of the Supreme Court in  the persons of Justices Mary Odili, Olu  Ariwo-Ola and Nguta. Looking at their names, they came from different regions of the country to reflect the much cherished federal character.

Had it been that the Salami’s promotion scales through, this would have set a bad precedent in the system, which will take a long time to be corrected.

But reacting to the issue, Chief Tayo Oyetibo, SAN, told Saturday Vanguard that the movement to the Supreme Court from the Court of Appeal is a promotion.

“ Any movement from the Court of Appeal to the Supreme Court is a promotion. I don’t know what the problem is. It is better for the two people involved, that is Justice Salami and Justice Katsina Alu to sort out themselves instead of giving problem to the entire judiciary.”

Dr. Tunji Braithwaite disagrees with this position  saying the position of Justice Salami which was backed by the NJC is justified.

“ It is not as straight forward as it seems. That movement was not really a promotion. It is a demotion. In the entire hierarchy of the judiciary, the President of the Court of Appeal ranks next to the Chief Justice. If Justice Salami is removed from his current position, it is demotion.

This explanation will assist in enlightening the confused public. If the CJ says he has promoted him from the Court of Appeal to the Supreme Court, what he has done is demoted him. That is the true state of the matter and that is what the controversy is all about.”

For Livy Uzougwu, SAN, the position of the National Judicial Council has overruled that of the Chief Justice and that means , Justice Salami’s rejection of his promotion stands.

“ You cannot compel somebody of Justice Salami’s stature to accept a promotion he does not want. In the history of the judiciary in this country, it has never happened that the President of the Court of Appeal is promoted to the Supreme Court. Rather, Justices from the Supreme Court are brought to head the Court of Appeal as its President. So, Justice Salami is not under compulsion to accept it. Anyway, the position of the CJ has been overruled by the National Judicial Council and that is the end of that matter. So, Justice Salami remains President of  the Court of Appeal”.

Lanke Odoginyo, former President of the Nigerian Bar Association also posits that the issue has been resolved by the National Judicial Council’s position on the matter.

“ I think we have seen the end of the controversy. Justice Salami has the right to reject his promotion. His position as the President of the Court of Appeal is an administrative position and makes him equal in rank to the CJ of the Supreme Court.

Therefore, moving him from an administrative position he is currently occupying to go and queue behind his juniors in the Supreme Court is a demotion. It is just like a Chief Judge of a state rejecting being promoted to the Court of Appeal. That clearly is a demotion and they have the right to reject such promotion just as the President of the court of Appeal has done”.

In the same vein, President, Global Agenda for Development,  Oludare Ogunlana in a statement issued to the media described the recent promotion as a deception and  a grand strategy by the PDP to rig the 2011 election.

“It is an ominous sign pointing to the fact that the year 2011 election will not be free and fair as against the “one man, one vote” mantra of the present administration.  The decision to promote Justice Ayo Salami who has been adjudged as one of the incorruptible members of the bench will not only create anarchy in the Judiciary but may lead to serious suspicion and create a crisis for the entire polity in Nigeria.

Hence, the need for the reversal of such nefarious promotion with immediate effect in order to create trust, build confidence and credibility of the coming election. It is no doubt, that an attempt to remove Justice Salami is coming as a result of the fact that some powerful people must have concluded on rigging the 2011 election and the only obstacle for them is Justice Salami that might be an impediment at the Court of Appeal that could truncate their efforts in the end.

“ Nigerians should recollect vividly how Mallam Ribadu was sent on compulsory course in order to stop his work at the EFCC. Nigerians are wise enough to understand the game and politics surrounding the sudden elevation of Justice Salami.”