A move initiated by a former governor of Ekiti State, Mr. Segun Oni, to compel the prosecution of the suspended President of the Court of Appeal, Justice Ayo Isa Salami, for alleged perjury, received judicial blessing on Tuesday, with an Abuja High Court, Bwari, granting him leave to apply for an order of mandamus compelling the Attorney- General of the Federation, Mohammed Bello Adoke SAN, to commence the criminal proceedings.
Justice Peter Affen held that he exercised his discretion in favor of the applicant (Oni) due to the public interest nature of the matter, adding that the order was not granted merely because the applicant asked for it.
The judge directed that Adoke should be served with the order within 14 days, with further hearing adjourned till March 8, 2012.
The frenzy however continues over the planned reinstatement of Salami to office by the Chief Justice of Nigeria, Justice Dahiru Musdapher, even as the suspended Appeal Court president has disowned the National Judicial Council (NJC) headed by Musdapher.
In a motion on notice brought pursuant to section 295(2) of the 1999 Constitution, Salami, through his counsel, Chief Akinlolu Olujinmi, SAN, claimed that NJC had no power to appoint, suspend or reinstate him, since he was not an employee of the council.
He noted that NJC’s involvement in his appointment was simply to recommend, adding that the salary paid to him was governed by an Act of the National Assembly.
According to the affidavit supporting his motion, Salami claimed that: “The Labour Act, Trade Dispute Act, Employees Compensation Act are example of such laws regulating the relationship of employer and employee, none of which applies to him (Salami)”.
He subsequently asked the Federal High Court handling the matter to refer the constitutional questions arising from his suit to the Court of Appeal for proper guidance.
He wanted the Court of Appeal to determine, among other issues, “whether having regard to the provisions of Section 238, 318 and paragraphs 13 and 21 of Part 1 of the Third Schedule to the 1999 Constitution, the plaintiff, who was appointed to a judicial office as President of the Court of Appeal under extant constitutional arrangements designed to secure the independence of the holder of a judicial office is subject of employer-employee relationship with the 1st defendant (NJC).
Meanwhile, indications have emerged that the lawyers defending the NJC in the suit filed by Salami against his suspension may soon be debriefed as reportedly directed by the CJN.
A very reliable legal source told Nigerian Tribune that the reported resolve of Justice Musdapher to withdraw the brief from the counsel was said to have been due to his conviction that the lawyers’ continued antagonism in court would further delay the resolution of the Salami saga.
Despite testifying against Salami during the judicial probe, Musdapher has been at the forefront of “Operation Reinstate Salami” since he took charge as the CJN.
It was gathered that the planned withdrawal of the council’s legal team from the Salami suit would pave the way for Salami to withdraw his suit against the council and subsequent consideration of the reinstatement recommendation, which had been largely stalled by the pendency of the suit.
The council could not deliberate on the advice of the Uwais panel that Salami should be reinstated due to the pendency of Salami’s suit and another suit filed by a human rights lawyer, Noah Ajare, seeking to restrain the council from considering the recommendation because of the pending Salami suit.
Withdrawing the council’s legal team from the matter may not yield the desired result, considering that some of the respondents in the suit had started making arrangements to hire personal lawyers to defend them individually, while filing of a fresh suit if Salami withdrew his was also said to be an option.
Moving the Oni application, his counsel, Mr Olusegun Ilori, argued: “It is in the interest of justice, fair play and the rule of law to prosecute the suspended President of the Court of Appeal, Justice Salami, for giving false evidence as the prosecution borders on an issue of national interest, public concern, social justice and equality before the law”.
He cited the case of Fawehinmi v Akilu, and Abraham Adesanya v President, Federal Republic of Nigeria.
In the motion ex parte filed on January 26, 2012, the former governor is seeking an order of the court granting leave to him to apply for an Order of mandamus directing the AGF to institute criminal proceedings against Justice Salami “for giving false evidence contrary to Sections 156, 157 and 158 of the Penal Code Act, Laws of The Federal Capital Territory.”
Alternatively, Oni wants an order of the court directing the AGF to issue “a fiat to the applicant to institute criminal proceedings against Justice Salami.”
He listed 26 grounds upon which the order of mandamus was being sought, and supported the application with a three-paragraph statement of facts as well as a three-paragraph verifying affidavit he personally deposed to.
The applicant also attached four exhibits, which included Salami’s affidavit in support of his motion on Notice of February 7, 2011, affidavit in response to the allegation of former Chief Justice of Nigeria (CJN), Justice Aloysius Katsina-Alu, dated March 31, 2011, report of the NJC panel of August 10, 2011 and a copy of his (Oni’s) letter of January 19, 2012 to the AGF, entitled “Request for the prosecution of Hon Justice Isa Salami for perjury.”
The applicant averred that Salami deposed to facts in his affidavit of February 7, 2011 and March 31, 2011, about the existence of a state of affairs which was later shown not only to be false, but also to have been made knowing those facts to be false, with the aim of misleading conclusion in judicial proceedings in contravention of S156, 157 and 158 of the Penal Code Laws of the Federal Capital Territory.
He further stated that: “On February 7, 2011, the Hon. Justice Isa Ayo Salami sued the then Chief Justice of the Federation, Hon. Justice Aloysius Iyorger Katsina-Alu, vide an originating summons on the grounds that the latter had orchestrated plans through the Federal Judicial Service Commission to forcefully promote him to the Supreme Court.
“In paragraphs 8-17 of the supporting affidavit, forming part of the originating summons, Hon. Justice Isa Ayo Salami stated chronologically, a sequence of events, including the then Chief Justice of the Federation’s attempt to allegedly influence the decision of the Sokoto Gubernatorial Election Petition Appeal Panel which he had constituted.
The former governor noted that pursuant to the hearing of the Justice Umaru Abdullai-led National Judicial Council (NJC) Panel, Justice Salami deposed to a five-paragraph Affidavit on March 31, 2011.
“Honourable Justice Isa Salami stated in the said paragraph 4(v) of the sworn affidavit that ‘the Honourable Chief Justice of Nigeria actually instructed me to direct the panel of justices hearing the Sokoto State gubernatorial appeal panel to dismiss the appeal which I told him I could not do.’
“When Honourable Justice Dahiru Musda-pher, the current Chief Justice of the Federation, was invited by the Abdullahi Panel of the NJC, he denied the assertions in paragraph 4(v) of the affidavit of March 31, 2011, being the only witness, stating that while he was in the office of the then Chief Justice of the Federation on the said day, the Chief Justice of the Federation never asked Honourable Justice Isa Ayo Salami to compromise the Sokoto gubernatorial appeal panel.
“After the hearing, the panel closed its proceedings. The NJC subsequently released its report of the panel and stated that the president of the Court of Appeal was not telling the truth when he accused the Chief Justice of the Federation of wanting to influence the judgment of the Court of Appeal.
“The panel in the said report stated its finding on page 96 as follows: ‘From all the circumstances, there is available evidence that the CJN did not give instructions to the PCA to direct the panel to dismiss the appeal’’…. ‘’ the panel finds that the allegation that the CJN had taken over the running of the Court of Appeal in an unprecedented manner as unfounded.”
The NJC conclusions stated that: “At the end of deliberations, the council decided as follows: That the allegation made by Justice Isa Ayo Salami, that the Chief Justice of Nigeria, Justice Aloysius Katsina-Alu, instructed him to direct the Sokoto gubernatorial appeal to dismiss the appeal by the Democratic Peoples Party of Nigeria is not true.”