I submit that the power to appoint or recommend for appointment ju dicial officers vested in NJC by Section 158[1] of the Constitution and Paragraph 21[a] and [g] of the Third Schedule to the Constitution includes the power to remove or suspend such judicial officers: See Section 11[1][b] of the Interpretation Act, which provides: When an enactment confers a power to appoint a person either to an office or to exercise any functions, whether for a specified period or not, the power includes

[a] ………………………………………………………………………;

[b] power to remove or suspend him;

[c] ………………………………………………………………………

See Okomu v. Iserhienrhien [2001] 21 WRN 161 at 193

NJC MEETING IN WHICH THE PCA WAS SUSPENDED WAS VALID IN LAW

Advocates for the PCA made an issue of the validity of the Meeting in which the decision to suspend the PCA was taken. They have contended that of the 24 members of the NJC only 8 of them attended the Meeting and only 5 took the decision to suspend the PCA with 3 against. They also argued that the CJN as Chairman of NJC and his deputy were absent in that Meeting.

I submit with due respect that these contentions are born out of total ignorance of the actual legal position of these issues. By my own count of the statutory members of NJC, they are 23. Even if they are 24, by Sections 153[1] and 159[1] of the Constitution, the Quorum for a Meeting of the NJC is at least one-third of its total members. One-third of 24 members is 8. A quorum was therefore formed for the Meeting. The Meeting cannot therefore be voided for want of quorum. Section 159[1] of the Constitution provides:

The quorum for a meeting of any of the bodies established by section 153 of this Constitution shall be not less than one-third of the total number of members of that body at the date of the meeting.

On the absence of the CJN and his Deputy in the Meeting, I submit that by Section 159[4] of the Constitution, vacancy or absence of members, in so far as a quorum is formed, does not invalidate any decision taken in NJC Meeting. The absence of the CJN and his Deputy in the said Meeting is therefore a non-issue. Section 159[4] of the Constitution provides: Subject to its rules of procedure, any such body may act or take part in any decision notwithstanding any vacancy in its membership or the absence of any member

On the issue of 5 voting for and 3 voting against, I submit that apart from the fact that it confirmed that it was a democratic and majority decision, it also has constitutional backing: See Section 159[2] of the 1999 Constitution which provides:

A member of such a body shall be entitled to one vote, and a decision of the meeting may be taken and any act or thing may be done in the name of that body by a majority of the members present at the meeting.

SENATE AND THE COURT LACK JURISDICTION TO SET ASIDE THE SUSPENSION

Critics or opponents of the suspension have called upon the Senate to reverse or set aside the suspension of the PCA and direct his reinstatement. Counsel to the suspended PCA have gone to Court to challenge the suspension. I submit without any fear of contradiction, that the Senate and the Court, jointly or severally, does not have the jurisdiction to set aside or reverse the suspension and direct the reinstatement of the PCA

being an exercise of power of disciplinary control by the NJC over the PCA: See Section 158[1] of the Constitution which provides:

In exercising its power to make appointments or to exercise disciplinarycontrol over persons, the Code of Conduct Bureau the National Judicial

Council, the Federal Civil Service Commission, the Federal Judicial

Service Commission, the Revenue Mobilisation and Fiscal Commission,

the Federal Character Commission, and the Independent National

Electoral Commission shall not be subject to the direction or control of any other authority or person.

I submit that Section 158[1] of the Constitution is mandatory and binding on the Senate and the Court. See Section 1[1] of the Constitution which provides:

This Constitution is supreme and its provisions shall have binding

force on all authorities and persons throughout the Federal

Republic of Nigeria.

PRESIDENT JONATHAN WAS RIGHT IN APPOINTING ACTING PCA

Supporters of the PCA have queried what they called the haste with which President Jonathan appointed an Acting PCA in the person of Justice Dalhatu Adamu and his legal authority to do so. In reply thereto, I humbly refer to Section 238[4] and [5] of the Constitution which respectively provides:

If the office of President of the Court of Appeal is vacant or if the the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Court of Appeal to perform those functions.

Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection [4] of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appoint a person whose appointment has lapsed.

I submit that President Jonathan did not breach any law by appointing an Acting PCA at the time and in the manner he did. Rather, Mr. President complied with a mandatory constitutional provision over which he had no option or choice. Appointing an Acting PCA falls within the Job Schedule of Mr. President under Section 238[4] of the Constitution. It is not a duty Mr. President can delegate. The Sworn Oaths of Mr. President in the Seventh Schedule to the Constitution is to carry out his presidential duties in accordance with the Constitution of the Federal Republic of Nigera and the law. I submit that there is no time frame for complying with or performing the duty imposed on Mr. President by the said provision. In fact, it is a duty His Excellency ought to perform timeously and immediately and he did. After all, constitutional provisions have immediate binding force and effect on all authorities and persons in Nigeria including Mr. President: See Sections 1[1] and 320 of the Constitution.

The issue was also raised that Mr. President carried out his said constitutional duty on a Sunday. Assuming without conceding that His Excellency did, doing so on a Sunday does not invalidate the act. Section 238[4] of the Constitution did not specify the day such act could be done. The option was for Mr. President whether or not to do on a Sunday what he could do on a non-Sunday: See Section 6 of Public Holidays Act CAP.

P40 Laws of the Federation 2004.

I submit that appointment of Acting PCA under Section 238[4] of the Constitution by the President does not require Confirmation by Senate as required by Section 238[1] of the Constitution, not being a substantive appointment

JUSTICE IBRAHIM AUTA NJC REVIEW COMMITTEE

The major grudge supporters of Justice Salami had against this Committee was that Justice Auta was a junior Judge who could not be looking into the case between judicial officers who are senior to him. This argument shows the depth of the absurdity, ridicule, hollowness and intellectual barrenness of the arguments of advocates of the suspended PCA. The suspended PCA through his Counsel has gone to Court and the case has been assigned to Justice Donatus Okorowo. Is Justice Okorowo or any Judge of the Federal High Court, who is to hear the case of the suspended PCA, against the retiring CJN and the NJC senior to them? Please give me a break.

THE OPTION LEFT FOR JUSTICE SALAMI TO RETURN TO OFFICE

From the above discussion of the relevant laws, the fate of the PCA still depends on the NJC if His Lordship wishes to return and remain as the PCA. This the PCA may achieve by appealing to the NJC. The suspension, by Section 238[5] of the Constitution, might

only be for a period of three months at the first instance.

But the present approach of allowing noisy placard carrying non-legal minds to argue his case on the pages of newspapers might not reinstate His Lordship to his office. His Lordship ought to seek and exhaust internal remedies available within the FJSC and NJC. This is my humble view. I beg to submit, and on that note, I rest my case.

Austin Osarenkhoe Esq, Legal Practitioner, Wrote From Benin City