With the partisan, vociferous solidarity of Nigerian Bar Association, Civil Society Organisations, vocal lawyers, activists, journalists, students, public affairs commentators, politicians, etc., for Justice Isa Ayo Salami, the suspended President of the Court of Appeal; taking a contrary stance on the matter would appear somewhat ill-advisedly suicidal.
That notwithstanding, I have decided, without fear or favour, affection or ill-will, or any fear of contradiction, to examine the legal issues emanating from the imbroglio between the National Judicial Council, the retiring Chief Justice of Nigeria Hon Justice Katsina-Alu, President Goodluck Jonathan on the one hand and Justice Ayo Salami and his crop of legal and political supporters on the other.
For clarity, and a proper understanding of the issues and arguments, my preference here is to respond to the collated arguments and submissions on the issues seriatim in the manner appearing hereunder.
 |
KATSINA-ALU & SALAMI |
The argument that the purported attempt to appoint Justice Salami to the Supreme Court of Nigeria by the Federal Judicial Service Commission and the National Judicial Council as chaired by Justice Katsina-Alu is a demotion and not a promotion has gained Gilbelsian fame and currency. Supporters of Justice Salami base this demotion theory on the erroneous and fallacious view that Justice Salami as President of Court of Appeal is number three in the judicial hierarchy in the Nigerian Judicature after the Chief Justice of Nigeria and the next in rank in the Supreme Court to the CJN simply because the office of President of Court of Appeal is listed in the third position in the List of Members of National Judicial Council under Paragraph 20 of Part 1 of the Third Schedule to the 1999 Constitution. Some even say he is number two because the office of President of Court of Appeal is listed in the second position in the List of Members of the Federal Judicial Service Commission under Paragraph 12 of Part 1 of the Third Schedule to the Constitution.
This view is based on a twisted, isolatory, contrived and improper construction or misapprehension of Paragraphs 12 and 20 of Part 1 of the Third Schedule to the 1999 Constitution as they relate to membership of the Federal Judicial Service Commission and National Judicial Council established by virtue of Section 153 of the Constitution. To start with, Justice Salami as PCA cannot alone be both number two and three at the same time. He is either number two or number three or not at all.
Paragraph 12 of Third Schedule provides:
The Federal Judicial Service Commission shall comprise the following members -
[a] the Chief Justice of Nigeria, who shall be the Chairman;
b] the President of the Court of Appeal;
[c] the Attorney-General of the Federation;
[d] the Chief Judge of the Federal High Court;
[e] two persons, each of whom has been qualified to practice as a legal Practitioner in Nigeria for a period of not less than fifteen years, from a list of not less than four persons so qualified recommended by the Nigerian Bar Association, and
[f] two other persons, not being legal practitioners, who in the opinion of the President are of unquestionable integrity.
Paragraph 20 of the Third Schedule provides:
The National Judicial Council shall comprise the following members –
[a] the Chief Justice of Nigeria, who shall be the Chairman;
[b] the next most senior Justice of the Supreme Court who shall be the Deputy Chairman;
[c] the President of the Court of Appeal;
[d] five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal;
[e] the Chief Judge of the Federal High Court;
[f] five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years;
[g] one Grand Kadi to be appointed by the Chief Justice of Nigeria from among the Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years;
[h]one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Courts of Appeal to serve in rotation for two years;
[i]five members of the Nigerian Bar Association who have been qualified to practise for a period of not less than fifteen years, at least one of them shall be a Senior Advocate of Nigeria, appointed by the Chief Justice of
Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment;
Provided that the five members shall sit in the Council only for the purposes of considering the names of persons for appointment to the superior courts of record; and
[j] two persons not being legal practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.
It is by these provisions some have argued that Justice Salami as PCA is, at the worst, the number three judicial officer in Nigeria. This argument is nonsensical to say the least. It is like saying that the position of Head Master of a Primary School is higher than that of a Senior Teacher in a Secondary School. Or that the position of Principal of a Secondary School is higher than that of Senior Lecturer in a University.
It would be observed that apart from the CJN and his deputy, no other Justice of the Supreme Court is a member of the NJC. In the case of FJSC, apart from the CJN, no other Justice of the Supreme Court is a member of the FJSC. It would also be observed that even non-lawyers are members of FJSC and NJC. Chief Judges of States are members of NJC. Does it then mean that the Chief Judges of States who are members of NJC rank higher than Justices of Supreme Court who are not members of FJSC and NJC? The President of the Court of Appeal was listed as next to the CJN in the membership of FJSC because the next person following is the AGF. In NJC, the next person following the CJN is a Justice of the Supreme Court and the PCA naturally follows after the Justice of the Supreme Court who is a member thereof.
I submit that by the listing of a Justice of the Supreme Court other than the CJN in the membership of NJC in Paragraph 20 of the Third Schedule before the PCA, it clearly shows that the position or office of a Justice of the Supreme Court is higher than that of President of Court of Appeal. Thus, that the position of PCA was listed as number two and three respectively in the membership of FJSC and NJC is no authority for the view that the position or office of PCA is higher than that of a Justice of the Supreme Court who is neither the CJN nor his deputy.
In fact, I submit that on a full implementation of the provisions of Section 230[2] of the Nigerian Constitution, which provides that the Supreme Court shall consist of the Chief Justice of Nigeria and such number of Justices of the Supreme Court not exceeding twenty-one as may be prescribed by an Act of the National Assembly, the President of
Court of Appeal would be number twenty-three in the judicial hierarchy of the Nigerian Judicature. Paragraphs 13[a] and 21[a] of the selfsame Part 1 of the Third Schedule to the Constitution put the point being made here beyond disputation.
Paragraph 13[a] states:
The Commission [that is, FJSC] shall have power to –
[words in parenthesis supplied]
[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
[vii]the Chairman and members of the Code of Conduct Tribunal
Paragraph 21[a] states:
The National Judicial Council shall have power to –
[a]recommend to the President from among the list of persons submitted
to it by –
[i] the Federal Judicial Service Commission, persons forappointment 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.
I submit that the word appointment used in paragraphs 13[a] and 21[a] respectively is more relevant, appropriate and pertinent to the issue of promotion and ranking than the word membership used in paragraphs 12 and 20 thereof. It is settled law that in interpreting the provisions of a Statute or Constitution, all relevant sections in the Statute or Constitution relating to the subject under consideration ought to be read and construed together. That one section of it should not be read and interpreted in isolation of the others: See Ojukwu v. Obasanjo [2004] 10 MJSC 1 at 21; Dapianlong v. Dariye [2007] 8 MJSC 140 at 189; Ugwu v. Ararume [2007] 7 MJSC 1 at 26; AG Kano State v. AGF [2007] 6 MJSC 161 at 176; AG Anambra State v. AGF [2007] 8 MJSC 28 at 54.
It would be observed in Paragraphs 13 and 21 respectively, of Part 1 of the Third Schedule to the Constitution that the office of Justices of Supreme Court was listed before that of President of Court of Appeal. That is the correct position and the Constitution has put it clearly beyond any doubt.
Again, by Sections 233 and 235 of the 1999 Constitution, the Supreme Court is a superior and a higher court to the Court of Appeal. A position in an inferior or lower court, no matter how glorified and exalted, cannot be said to be higher than a position in a superior or higher court. The demotion theory is therefore illogical, nonsensical, misconceived and wrong in law. Appointing Justice Salami to the Supreme Court from the position of President of Court of Appeal would not have been a demotion by any legal standard. It is a promotion.
Austin Osarenkhoe Esq, Legal practitioner, wrote from Benin
http://www.vanguardngr.com/2011/09/njc-legally-right-on-justice-salami/