TWO days after the expiration of the 72 hours ultimatum he gave the Attorney General of the Federation (AGF), Mr. Mohammed Adoke (SAN) to commence criminal prosecution of the
suspended President of the Court of Appeal (PCA), Justice Isa Ayo Salami for the offence of Perjury, former Governor of Ekiti State, Chief Segun Oni has filed a suit at the Federal High Court, Abuja, seeking an Order of Mandamus, directing the AGF to institute criminal proceedings against the suspended PCA.
Oni, who instituted the case through his counsel, Mr. Segun Ilori said; “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 Isa Ayo Salami for giving false evidence as the prosecution bothers on an issue of National interest, public concern, social justice and equality before the law.”
He averred that Justice Salami deposed to facts in his Affidavit of February 7, 2011 and March 31, 2011, about the existence of a state of affairs which were 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 a judicial proceedings in contravention of S156, 157 and 158 of the Penal Code Laws of the Federal Capital Territory.
In the Motion Ex-parte filed on Thursday, January 26, 2012, and made available to our reporter, 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 stated 26 grounds upon which the Order of Mandamus was being sought, and supported the application with 3-paragraph statement of facts as well as a 3-paragraph verifying Affidavit he personally deposed to. Also in support of the Application, Oni attached four Exhibits, which include Justice 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 National Judicial Council (NJC) Panel of August 10, 2011 and a copy of the his (Oni) letter of January 19, 2012 to the AGF titled; “Request for the prosecution of Hon Justice Isa Salami for perjury.”
In the 26 grounds raised by Oni, he said; “On February 7, 2011, the Hon. Justice Isa Ayo Salami sued the then Chief Justice of the Federation, Hon. Justice Alloysius Iyorger Katsina-Alu vide an Originating Summons on the ground 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.
“Among the allegations leveled against the Chief Justice of the Federation in the said Affidavit, he stated in Paragraph 11 that the Chief Justice of the Federation asked him to disband the panel that he
had set up for the purpose on the ground that the panel would allow the Appeal and begin a chain reaction that would lead to the removal of the highly revered Sultan of Sokoto.
“Hon. Justice Salami also maintained in his Affidavit that he refused to disband the said panel, following which the Supreme Court arrested the Judgment of the Court of Appeal panel and brought same under the Supreme Court following which the Appeal was dismissed.
“In the Affidavit, he traced the frosty relationship between himself and the then Chief Justice of the Federation to the “Sokoto” incident.”
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 5-paragraph Affidavit on March 31, 2011.
“Hon 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 Hon. Justice Dahiru Musdapher, 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 Hon. Justice Isa Ayo Salami to compromise the Sokoto Gubernatorial Appeal Panel.
“After the hearing, the panel closed its proceeding, 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 NJC conclusions stated ‘At the end of deliberations, the Council decided as follows: – That the allegation made by the Hon. President, Court of Appeal, Hon. Justice Isa Ayo Salami, that the Hon. Chief Justice of Nigeria, Hon. 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.’
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY IN THE ABUJA JUDICIAL DIVISION HOLDEN IN ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BROUGHT PURSUANT TO ORDER 42 OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA
IN THE MATTER OF AN APPLICATION BY CHIEF OLUSEGUN ONI FOR LEAVE TO APPLY FOR AN ORDER OF MANDAMUS TO DIRECT THE ATTORNEY-GENERAL OF THE FEDERATION TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST HONOURABLE JUSTICE ISA AYO SALAMI FOR GIVING FALSE EVIDENCE CONTRARY TO SECTIONS
156, 157 AND 158 OF THE PENAL CODE ACT, LAWS OF THE FEDERAL CAPITAL
TERRITORY.
SUIT NO: …………………
BETWEEN:
CHIEF OLUSEGUN ONI
AND
THE ATTORNEY GENERAL OF THE FEDERATION
MOTION EX-PARTE BROUGHT PURSUANT TO ORDER 42 OF THE HIGH COURT OF THE FEDERAL
CAPITAL TERRITORY ABUJA, RULES 2004, SECTION 156, 157 AND 158 OF THE PENAL CODE ACT, LAWS OF THE FEDERAL CAPITAL TERRITORY, SECTION 174 & SECTION 301 OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC AND UNDER THE INHERENT POWERS OF THIS HONOURABLE COURT.
TAKE NOTICE that this Honourable Court will be moved on the……..day of ………… 2012, at the hour of 9’O Clock in the forenoon or at a time so soon thereafter, as Counsel may be heard on behalf of the
Applicant praying this Honourable Court for the following:
1. An Order of this Honourable Court granting leave to the Applicant to apply for an Order of Mandamus directing the Attorney-General of the Federation to institute Criminal Proceedings against the suspended President of the Court of Appeal, Hon. Justice Isa Ayo Salami for giving false evidence contrary to Sections 156, 157 and 158 of the Penal Code Act, Laws of The Federal Capital Territory.
Or in the alternative, an Order of this Honourable Court directing the Attorney-General of the Federation to issue a fiat to the Applicant to institute Criminal Proceedings against the suspended President of the Court of Appeal, Hon. Justice Isa Ayo Salami for giving false evidence contrary to Sections 156, 157 and 158 of the Penal Code Act, Laws of The Federal Capital Territory.
2. And for such further Order(s) as this Honourable Court may deem fit
to make in the prevailing circumstance.
DATED THIS 26TH DAY OF JANUARY 2012.
…………………………………………………..
Olusegun Ilori Esq
C/O
OLUSEGUN ILORI &CO
PLAINTIFF’S SOLICITORS
2B
ONDO CLOSE,IBRAHIM ABACHA EST
WUSE
ZONE ABUJA
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION HOLDEN IN ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BROUGHT PURSUANT TO ORDER 42 OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA.
IN THE MATTER OF AN APPLICATION BY CHIEF OLUSEGUN ONI FOR LEAVE TOAPPLY FOR AN ORDER OF MANDAMUS TO DIRECT THE ATTORNEY-GENERAL OF THE FEDERATION TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST HONOURABLE JUSTICE ISA AYO SALAMI FOR GIVING FALSE EVIDENCE CONTRARY TO SECTIONS 156, 157 AND 158 OF THE PENAL CODE ACT, LAWS OF THE FEDERAL CAPITAL
TERRITORY.
SUIT NO: …………………
BETWEEN:
CHIEF OLUSEGUN ONI
AND
THE ATTORNEY GENERAL OF THE FEDERATION
MOTION EX-PARTE
STATEMENT PURSUANT TO ORDER 42(3) OF THE HIGH COURT OF THE FEDERAL
CAPITAL TERRITORY ABUJA (CIVIL PROCEDURE) RULES, 2004.
1. NAME AND DESCRIPTION OF THE APPLICANT
The name of the Applicant is Chief Olusegun Adebayo Oni, Male
Christian, and Nigerian Citizen whose address is Alao Close Ilogbe
quarters, Ifaki Ekiti, Ekiti.
Engineer Olusegun Adebayo Oni was the Governor of Ekiti State between
May 29, 2007 and later from April 26, 2009 to October 15, 2010.
2. RELIEF SOUGHT BY THE APPLICANT
(a) An ORDER of MANDAMUS directing the Attorney-General of the
Federation to institute Criminal Proceedings against the suspended
President of the Court of Appeal, Hon. Justice Isa Ayo Salami for
giving false evidence contrary to Sections 156, 157 and 158 of the
Penal Code Act, Laws of The Federal Capital Territory.
Or in the alternative, an Order of this Honourable Court directing the
Attorney-General of the Federation to issue a fiat to the Plaintiff to
institute Criminal Proceedings against the suspended President of the
Court of Appeal, Hon. Justice Isa Ayo Salami for giving false evidence
contrary to Sections 156, 157 and 158 of the Penal Code Act, Laws of
The Federal Capital Territory.
(b) SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit
and just to make in the circumstances of this case.
3. GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT
(a) Hon. Justice Isa Ayo Salami was appointed as the President
of the Court of Appeal in December 2009.
(b) On February 7, 2011, the Hon. Justice Isa Ayo Salami sued
the then Chief Justice of the Federation, Hon. Justice Alloysius
Iyorger Katsina-Alu vide an Originating Summons on the ground that the
latter had orchestrated plans through the Federal Judicial Service
Commission to forcefully promote him to the Supreme Court.
(c) 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.
(d) Among the allegations leveled against the Chief Justice of the
Federation in the said Affidavit, he stated in Paragraph 11 that the
Chief Justice of the Federation asked him to disband the panel that he
had set up for the purpose on the ground that the panel would allow
the Appeal and begin a chain reaction that would lead to the removal
of the highly revered Sultan of Sokoto.
(e) Hon. Justice Salami also maintained in his Affidavit that he
refused to disband the said panel, following which the Supreme Court
arrested the Judgment of the Court of Appeal panel and brought same
under the Supreme Court following which the Appeal was dismissed.
(f) In the Affidavit, he traced the frosty relationship between
himself and the then Chief Justice of the Federation to the “Sokoto”
incident.
(g) He accused the Chief Justice of the Federation of instigating his
promotion to the Supreme Court based on his refusal to allow him to
influence the Court of Appeal panel.
(h) In a well publicized letter to the Chief Justice of the
Federation, he accused the Chief Justice of the Federation of
orchestrating clandestine meetings in his absence all in a bid to
fast-track the said promotion which he called a Greek gift”.
(i) Following this incident, he sued the Chief Justice of the
Federation among others and maintained the position stated above in
Paragraphs e,f,g h. among others
(j) Prior to the above there had been a petition from Alfred Agu Esq
on behalf Governor of Sokoto state and another by Yahaya Mahmood SAN
on behalf of INEC against Hon Justice Isa Ayo Salami with respect to
Governorship Election Appeals before the Court Of Appeal in Sokoto.
(k) The NJC upon the receipt of the petition invited the President to
react to the petition.
(l) The National Judicial Council set up a five man Panel hereinafter
referred to as ’’the panel’’ headed by Hon Justice Umaru Abdullahi
retired to investigate the allegations leveled against the Chief
Justice of Nigeria Justice Katsina Alu now retired, and the President
Court Of Appeal and others .
(m) Pursuant to the hearing of the said Panel, Hon. Justice Isa Ayo
Salami deposed to a 5-paragraph Affidavit on March 31, 2011.
(n) In the said Affidavit of March 31, 2011 in paragraph 4 (v), Hon.
Justice Isa Ayo Salami again accused the then Chief Justice of the
Federation of trying to influence the outcome of the Sokoto Panel and
added that the present Chief Justice of the Federation, Hon. Justice
Dahiru Mustapha was also present in the office of the Hon Justice
Katsina Alu when the incident occurred.
(o) Hon 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’’.
(p) When Hon. Justice Dahiru Musdapher, the current Chief Justice of
the Federation, was invited by the Abdullahi 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 Hon. Justice Isa Ayo Salami to compromise
the Sokoto Gubernatorial Appeal Panel.
(q) After the hearing, the panel closed its proceeding, 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.
(r) 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’.
(s) The NJC conclusions stated”At the end of deliberations, the
Council decided as follows: – That the allegation made by the Hon.
President, Court of Appeal, Hon. Justice Isa Ayo Salami, that the Hon.
Chief Justice of Nigeria, Hon. 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”
(Emphasis ours).
(t) Another Panel which was subsequently set up by the NJC to
prescribe sanctions for Hon. Justice Isa Ayo Salami ordered him to
apologise for his actions in 7 days.
(u) Hon. Justice Isa Ayo Salami refused to apologise to the Chief
Justice of the Federation but instead chose to file another suit at
the Federal High Court challenging the decision of the National
Judicial Council.
(v) On August 17, 2011, following his refusal to apologize to the
Chief Justice of the Federation, Hon. Justice Isa Ayo Salami was
suspended and an Acting President appointed for the Court of Appeal.
(w) Inspite of the contravention of the Provisions of the Penal Code,
Hon. Justice Isa Ayo Salami has not been prosecuted for giving false
evidence.
Particulars of contravention: Hon Isa Ayo Salami deposed to facts
in his Affidavit of 7 February 2011 and 31 March 2011, about the
existence of a state of affairs which were 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 a judicial proceedings in
contravention of S156,157 and 158 of the Penal Code Laws of the
Federal Capital Territory.
(x) By virtue of Section 174 and Section 301 of the 1999 Constitution,
the Respondent is vested with the power to initiate, takeover and
discontinue criminal proceedings against any person in Nigeria who is
believed to have committed an offence.
(y) Going by the provisions of Section 156, 157 and 158 of the Penal
Code Act, Laws of the Federal Capital Territory, anyone who gives
evidence that is found to be untrue at any stage in a legal proceeding
is said to have committed the offence of giving false evidence and is
liable to be imprisoned for fourteen years.
(z) By the combined effects of Section 174 of the 1999 Constitution
and Sections 156, 157 and 158 of the Penal Code Act, Laws of the
Federal Capital Territory, the Defendant /Respondent owes Nigerians a
duty to prosecute the suspended President of the Court of Appeal, Hon.
Justice Isa Ayo Salami for giving false evidence under oath.
(i) The Applicant, a responsible Nigerian citizen who believes in the
rule of law, equality and fairplay and who has a sense of justice
wrote a letter dated 19 January 2012 to the Respondent who is the
Attorney-General of the Federation and Attorney General of the FCT
requesting the prosecution of the Hon. Justice Isa Ayo Salami for
giving false evidence under Oath.
(ii) The Respondent has failed or neglected to prosecute Hon Justice
Isa Ayo Salami for his cries in spite of this request.
(iii) The Respondent has absolutely no reason to refuse to prosecute
the suspended President of the Court of Appeal for the offence of
giving false evidence.
(iv) It is in the interest of Justice, fairplay and the rule of law to
prosecute the suspended President of the Court of Appeal, Justice Isa
Ayo Salami for giving false evidence as the prosecution bothers on an
issue of National interest, public concern, social justice and
equality before the law.
DATED THIS 26TH DAY OF JANUARY 2012.
………………………………………..
Olusegun Ilori Esq
C/O
OLUSEGUN ILORI &CO
PLAINTIFF’S SOLICITORS
2B
ONDO CLOSE,IBRAHIM ABACHA EST
WUSE
ZONE ABUJA
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BROUGHT PURSUANT
TO ORDER 42 OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA.
IN THE MATTER OF AN APPLICATION BY CHIEF OLUSEGUN ONI FOR LEAVE TO
APPLY FOR AN ORDER OF MANDAMUS TO DIRECT THE ATTORNEY-GENERAL OF THE
FEDERATION TO INSTITUTE CRIMINAL PROCEEDINGS AGAINST HONOURABLE
JUSTICE ISA AYO SALAMI FOR GIVING FALSE EVIDENCE CONTRARY TO SECTIONS
156, 157 AND 158 OF THE PENAL CODE ACT, LAWS OF THE FEDERAL CAPITAL
TERRITORY.
.
SUIT NO: …………………
BETWEEN:
CHIEF OLUSEGUN ONI
AND
THE ATTORNEY GENERAL OF THE FEDERATION
VERIFYING AFFIDAVIT IN SUPPORT OF MOTION EX-PARTE
I Chief Olusegun Oni, Male Christian, Nigerian Citizen of Alao Close
Ilogbe quarters, Ifaki Ekiti, Ekiti State, do make Oath and state as
follows:
1. That I am the Plaintiff/Applicant herein.
2. That I hereby verify all the facts in the Statement and grounds in
support of this Application are true.
3. That Certified True Copies of the documents referred to in the
Statement of Fact in support of this application are hereby attached
and marked as follows:
(a) Hon. Justice Isa Ayo Salami’s Affidavit in support of his Motion
on Notice of February 7, 2011 is hereby attached and marked Exhibit
“A”.
(b) Hon. Justice Isa Ayo Salami’s Affidavit in response to the
Allegation of Hon. Justice Aloysius Iyorger Katsina-Alu dated March
31, 2011 is hereby attached and marked Exhibit “B”.
(c) The report of the NJC Panel of August 10, 2011 is hereby attached
and marked as Exhibit “C”.
(d) A copy of my letter of 19 January 2012 to the Attorney-General of
the Federation titled REQUEST FOR THE PROSECUTION OF HON JUSTICE ISA
SALAMI FOR PERJURY is also attached and marked Exhibit “D”.
4. That I depose to this affidavit in good faith believing same to be
true and correct and in accordance with the Oaths Act, LFN 2004.
__________________
DEPONENT
SWORN TO AT THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA.
THIS ……………DAY OF ………., 2012.
BEFORE ME
COMMISSIONER FOR OATHS
IN THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY
IN THE ABUJA JUDICIAL DIVISION
HOLDEN IN ABUJA
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BROUGHT PURSUANT
TO ORDER 42 OF THE HIGH COURT OF THE FEDERAL CAPITAL TERRITORY ABUJA.
IN THE MATTER OF AN APPLICATION BY CHIEF OLUSEGUN ONI FOR LEAVE TO
APPLY FOR AN ORDER OF MANDAMUS TO COMPEL THE ATTORNEY-GENERAL OF THE
FEDERATION TO PROSECUTE HONOURABLE JUSTICE ISA AYO SALAMI FOR GIVING
FALSE EVIDENCE CONTRARY TO SECTIONS 156, 157 AND 158 OF THE PENAL CODE
ACT, LAWS OF THE FEDERAL CAPITAL TERRITORY.
SUIT NO: …………………
BETWEEN:
CHIEF OLUSEGUN ONI
AND
THE ATTORNEY GENERAL OF THE FEDERATION
WRITTEN ADDRESS IN SUPPORT OF APPLICATION FOR LEAVE OF COURT TO APPLY
FOR ORDER OF MANDAMUS
Before this Honourable Court is a motion on Ex-parte dated January 25,
2012, wherein the Applicant seeks the following reliefs:
(a) An ORDER of this Honourable Court granting leave to the applicant
to apply for an order of MANDAMUS directing the Attorney-General of
the Federation to institute Criminal Proceedings against the suspended
President of the Court of Appeal, Hon. Justice Isa Ayo Salami for
giving false evidence contrary to Sections 156, 157 and 158 of the
Penal Code Act, Laws of The Federal Capital Territory.
Or in the alternative, an Order of this Honourable Court granting
leave to the Applicant to apply for an order directing the
Attorney-General of the Federation to issue a fiat to the Plaintiff to
institute Criminal Proceedings against the suspended President of the
Court of Appeal, Hon. Justice Isa Ayo Salami for giving false evidence
contrary to Sections 156, 157 and 158 of the Penal Code Act, Laws of
The Federal Capital Territory.
(b) SUCH FURTHER OR OTHER ORDERS as this Honourable Court may deem fit
and just to make in the circumstances of this case.
The Application is supported by a 3-paragraph statement of facts as
well as a 3-paragraph verifying Affidavit deposed to by Chief Olusegun
Oni, the Applicant himself. In support of the Application are 4
Exhibits which are:
(a) Hon. Justice Isa Ayo Salami’s Affidavit in support of his Motion
on Notice of February 7, 2011 is hereby attached and marked Exhibit
“A”.
(b) Hon. Justice Isa Ayo Salami’s Affidavit in response to the
Allegation of Hon. Justice Aloysius Iyorger Katsina-Alu dated March
31, 2011 is hereby attached and marked Exhibit “B”.
(c) The report of the NJC Panel of August 10, 2011 is hereby attached
and marked as Exhibit “C”.
(d) A copy of the Applicant’s letter of January 19, 2012 to the
Attorney-General of the Federation titled REQUEST FOR THE PROSECUTION
OF Hon JUSTICE ISA SALAMI FOR PERJURY is hereby attached and marked
exhibit’’ D’’
The Applicant hereby relies on all the depositions contained therein.
INTRODUCTION AND BACKGROUND FACTS
On August 10, 2011, following a hearing which lasted for FIVE MONTHS.,
the Panel set up by the National Judicial Council Panel to
investigate allegations made against the then CJN Hon Justice
Katsina-Alu and the President Court of Appeal at page 96 of its
finding held that Hon. Justice Isa Ayo Salami who had leveled the
allegations UNDER OATH (emphasis ours) against the person of the then
Chief Justice of the Federation, Hon. Justice Aloysius Iyorger
Katsina-Alu in his Affidavits of February 7, 2011 and March 31, 2011
was not telling the truth as his statements were not true.
The Applicant, a responsible Nigerian Citizen seeks to have criminal
proceedings instituted against Hon. Justice Isa Ayo Salami for having
given false evidence under oath, contrary to Sections 156, 157 and 158
of the Penal Code Act, Laws of the Federal Capital Territory.
The Applicant had earlier written a letter dated19 January 2012 to the
Defendant asking him to institute criminal proceedings against Justice
Isa Ayo Salami for giving false evidence under oath contrary to
Sections 256, 157 and 158 of the Penal Code Act, Laws of the Federal
Capital Territory and following the Defendant’s refusal to institute
criminal proceedings against him as provided for under Section 174 of
the 1999 Constitution, despite the said letter of January 19, 2012,
hereby seeks leave of this Honourable Court to Apply for an Order of
Mandamus directing the Defendant to institute criminal proceedings
against him as provided for under Section 174 of the 1999
Constitution.
ISSUES FOR DETERMINATION
We most humbly submit that there are two Issues for determination which are:
(1) Whether or not the Applicant is entitled to Leave to Apply for
an Order of Mandamus directing/Compelling the Defendant to Institute
Criminal Proceedings against Suspected Offenders?
(2) Whether or not, the Defendant is obligated by virtue of Section
174 of the Constitution of the Federal Republic of Nigeria to
Institute Criminal Proceedings against Suspected Offenders?
(3) Whether this Honourable Court can exercise its discretion in
favour of the Applicant if the answer to (1) above is in the
affirmative?
ARGUMENT IN SUPPORT OF ISSUE FOR DETERMINATION
ISSUE 1
Whether or not the Applicant is entitled to Leave to Apply for an
Order of Mandamus directing/Compelling the Defendant to Institute
Criminal Proceedings against Suspected Offenders.
It is our humble but emphatic submission that by virtue of section 174
of the 1999 Constitution of the Federal Republic as amended it is very
clear that the exercise of the power to institute, takeover and
discontinue legal proceedings against any individual suspected of
having committed an offence is vested in the Attorney-General of the
Federation unless he so delegates or authorizes.
For the avoidance of doubt, section 174 of the 1999 Constitution reads thus:
“the Attorney General of the Federation shall have power:
(a) to institute and undertake criminal proceedings against any person
before any court of law in Nigeria other than a court-martial in
respect of offence created by or under a law of the National Assembly;
(b) to take over and continue any such criminal proceedings that may
have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such
criminal proceedings instituted or undertaken by him or any other
authority or person.”
We shall proceed to link this provision of the constitution with the
current situation.
It is immediately clear from the fore-going that Hon. Justice Isa Ayo
Salami is “any person” within the meaning of the above cited
provision. It is naturally conceded that “any person” has to be
someone who has committed an offence created under Nigerian Law.
We shall for this purpose, rely on the finding of the NJC Panel at
page 96 where it stated thus:
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’’
Based on the above the NJC stated that:
“At the end of deliberations, the Council decided as follows: – That
the allegation made by the Hon. President, Court of Appeal, Hon.
Justice Isa Ayo Salami, that the Hon. Chief Justice of Nigeria, Hon.
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”.
My lord will no doubt have noticed that this allegation referred to
was made under Oath, which means the President of the Court of Appeal
gave false statement under Oath. Bearing in mind that an Affidavit is
evidence before the court, it means that the Hon. Justice Isa Ayo
Salami gave false evidence to the court, evidence that could mislead
the court or panel.
The Laws of our country have created adequate laws to cater for
situations such as this. Section 156 of the Penal Code Act, Laws of
the FCT, states thus:
‘Whoever, being legally bound by an oath or by an express provision of
law to state the truth or being bound by law to make a declaration
upon any subject, makes a statement, verbally or otherwise, which is
false in a material particular and which he either knows or believes
to be false or does not believe to be true, is said to give false
evidence”.
Section 157 states thus:
‘Whoever causes a circumstance to exist or makes a false entry in a
book or record or makes a document containing a false statement
intending that the circumstance, false entry or false statement may
appear in evidence or be used in a judicial proceeding or in a
proceeding taken by law before a public officer as such or before an
arbitrator and that the circumstance, false entry or false statement
so appearing in evidence or so used may cause a person, who in that
proceeding is to form an opinion upon the circumstance, entry or
statement, to entertain an erroneous opinion touching a point material
to the result of the proceeding, is said to fabricate false evidence’
Section 158 provides the punishment thus:
(1) Whoever intentionally gives false evidence in any stage of a
judicial proceeding or fabricates false evidence for the purpose of
its being used in any stage of a judicial proceeding shall be punished
with imprisonment for a term which may extend to fourteen years and
shall also be liable to fine.
(2) Whoever intentionally gives or fabricates false evidence in any
other case, shall be punished with imprisonment for a term which may
extend to seven years and shall also be liable to fine.
From the foregoing, it is clear that the Hon. Justice Isa Ayo Salami
committed the offence as stated in sections 156 and 157 of the Penal
Code Act, Laws of the FCT. What is next is for the Attorney-General to
institute criminal proceedings against him in order to determine if
the punishment as stipulated in section 158 would apply.
We submit that by the combined effects of sections 156, 157 and 158,
of the Penal Code Act and section 174 of the 1999 Constitution, the
Attorney-General of the Federation has a duty and he is mandated,
obligated and ought to institute criminal proceedings against Hon.
Justice Isa Ayo Salami.
We submit that the powers of the Attorney-General of the Federation
are exercised on behalf of the people and should be exercised
everytime the situation demands in the public interest.
In GOVERNOR OF EBONYI STATE & ORS V. HON. JUSTICE ISUAMA (2003) FWLR
[PT. 169] 1210 @ 1227-1228, the Court of Appeal while stressing the
need for public officials to obey rules of law held as follows:
“Obedience to the rule of law by all citizens but more particularly
those who publicly took oath of office to protect and preserve the
constitution is a desideratum to good governance and respect for the
rule of law. In a democratic society, this is meant to be a norm; it
is an apostasy for government to ignore the provisions of the law and
the necessary rules made to regulate matters”.
We submit that the Attorney-General, a creation of the Constitution
cannot act contrary to its provisions or the provisions of the Laws of
the Land. He is therefore obligated as a duty to institute criminal
proceedings against anyone who contravenes the law.
Based on this reason, we urge this Honourable Court to grant the
Applicant’s application for leave to apply for an order of mandamus
directing the Defendant to institute criminal proceedings against
Justice Isa Ayo Salami.
We also submit most respectfully that this is a matter in which
discretion lies with this Honourable court. In N.H Int’l S.A V N.H.H.
Ltd (2007) 7 NWLR Pt 1032, Pg 86 @ 113-114, it was held that in
exercising its discretion,
“ a court is not bound to exercise its discretion in any particular
way. Each exercise of judicial discretion by a court must depend on
the facts and peculiar circumstances of each case”.
It is our humble submission that this Honourable Court is fully
capable of exercising its discretion in favour of the Applicant as the
statement of facts and the verifying affidavit as well as the Exhibits
attached show that the circumstances of this particular matter warrant
that this Honourable Court exercises its discretion in favour of the
Applicant. The court must in exercising this discretion note that it
will be in keeping with the legal maxim of equality before the law of
all persons particularly to give confidence to the public that no
one however highly placed is above the law. This will no doubt
reinforce public confidence in our legal system
CONCLUSION
We most humbly submit that this Honorable Court ought to grant leave
to the Applicant to apply for an order directing the Defendant to
comply with the provisions of Sections 156, 157 and 158 of the Penal
Code Act and Section 174 of the 1999 Constitution by instituting
Criminal Proceedings against Hon. Justice Isa Ayo Salami or in the
alternative, direct the Defendant to issue a fiat to the Applicant to
institute the said criminal proceedings as the overall aim is the
attainment of justice.
DATED THIS 26TH DAY OF JANUARY 2012.
—————–
Olusegun Ilori Esq
C/O
OLUSEGUN ILORI &CO
PLAINTIFF’S SOLICITORS
2B
ONDO CLOSE,IBRAHIM ABACHA EST
WUSE
ZONE 4, ABUJA