Wednesday, 5 March 2014
Nigeria Bar Association Rejects Actions Of The NJC On Justice Salami, Asks Members To Boycott Katsina-Alu's Swearing Of New SANs
Through an address delivered to the NBA pre-onference national executive committee in Port Harcourt, NBA president JB Daudu detailed the flaws in the action taken by the National Judicial Council (NJC) in arriving at its so-called suspension of Justice Ayo Salami and declared it flawed. The content of the address was fully adopted by NEC as the NBA's position pendings it annual conference in Port Harcourt
See full address below:
Address By The President Of The Nigerian Bar Association Joseph Bodunrin Daudu SAN To The Pre-Conference National Executive Committee Meeting Of The Nigerian Bar Association At The House Of Assembly Complex Moscow Road Port Harcourt Rivers State On The 21st Of August 2011
National officers of the Nigerian Bar Association, Senior members of the Bar, SAN’s et al, Distinguished members of NBA-NEC, Members of the Media, Ladies and Gentlemen, Good Afternoon.
Our Association’s annual conference kick off today with Registration at the Township School Moscow Road here in Port Harcourt and It has been designed to be a seamless event. I hope your experience there represents an agreeable platform from which to launch this weeklong activity that brings together an estimated 10, 000 legal practitioners in all walks of life and endeavours. This conference comes at a time when the legal profession is reeling from a serious crisis of confidence precipitated not by or within the Bar but by our alter-ego, the Bench. We do not amongst us need to define who members of the Bench are; suffice to say that they are entrusted with the sacred duty of adjudicating disputes between person’s inter-se and between Government and other persons with a view to determining their civil rights and obligations. This hallowed function carries with it onerous obligations requiring of the occupants of such high office certain sterling qualities. The public expect of members of the bench total commitment to the cause of justice. No less commitment is required from members of the bar that present cases for all suitors that go before the bench for Justice. In this regard, lawyers are regarded as ministers (not serfs or plebeians) in the temple of justice. They are equal partners in the constitutional quest to provide justice to the people. Consequently, it is expected that both the Bar and Bench will at all times, particularly in the course of their service to justice protect and uphold the Rule of law, respect and observe due process, exhibit great learning and independence at all stages in the discharge of this sacred function and generally inspire confidence in the Administration of Justice. The result, if the foregoing are scrupulously observed and applied is that the society will be peaceful, secure, progressive and blessed. Such society whose judges offer justice to her people prospers in all ramification be it economic, social or political. The converse is the case for a society with a warped, unreliable and or unpredictable system of justice or which possess a fine system but whose operators are corrupt or unreliable. Either way, the society is worse off for it.
Nigeria operates a system of justice that should ordinarily provide for her people undiluted justice but a good system does not on its own guarantee justice. Its operators must be truthful, honest, sincere, and Spartan in living, they must also be God fearing and exhibit a disdain for any corruptive factor. It follows therefore that at all times those who administer justice must be a shining example for others as it relates to the observance and strict application of the due process of and the rule of law. It is the beginning of the end for a society whose judges exhibit selective preference for the Rule of law, choosing to apply it when it suits them and ad nauseum, rejecting it when their own personal interest is in issue.
The duty of the Bar is no different; it is expected to be knowledgeable, fearless, and truthful. Above all, her members are expected to show total respect for the laws of the land and defend same at any cost. The Bar fails in her duties to the society and the cause of justice where it condones tyranny from any arm of government. Most detestable is judicial tyranny because its effect emasculates the people. It is against this background that I wish to report on certain pressing recent events that have rocked the sanctity of our fledgling democracy. In the course of the issues that I propose to report on or deal with, the reason for this background will be apparent. They include (i) The NJC issue and the report of your members in the NJC; (ii) The NJC’s handling of the face-off between the Chief Justice of Nigeria (CJN) and the President of the Court of Appeal, (iii) The fixing by the CJN of the swearing-in of new Senior Advocates of Nigeria to a date that falls within our annual general conference, (iv) Our own report on the same CJN/PCA face off and on other issues affecting the administration of justice. I shall deal with these issues in seriatim.
REPORT ON THE NATIONAL JUDICIAL COUNCIL
It is essential to commence this report by providing some background information about the National Judicial Council. It is a creature of the 1999 Constitution as amended-see section 153-(i). Its composition and powers are as set out in part (1) of the 3rd schedule to the Constitution. Because of the analysis to be embarked upon later in this address, it is necessary to set out powers and or functions of the NJC or Council (as the National Judicial Council will henceforth be referred to) Paragraph 21 thereof provides thus;
“21. 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 for appointment 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, and
(ii) the Judicial Service Committee of the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court of the Federal Capital Territory, Abuja, the Grand Kadi and Kadis of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory, Abuja;
(b) recommend to the President the removal from office of the judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary control over such officers;
(c) recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States;
(d) Recommend to the Governors the removal from the office of the judicial officers in sub-paragraph (c) of this paragraph, and to exercise disciplinary control over such officers.
(e) Collect, control and disburse all moneys, capital and recurrent, for the judiciary;
(f) Advise the President and Governors or any matter pertaining to the judiciary as may be referred to the Council by the President or the Governors;
(g) Appoint, dismiss and exercise disciplinary control over members and staff of the Council;
(h) Control and disburse all monies, capital and recurrent; for the services of the Council; and
(i) Deal with all other matters relating to broad issues of policy and administration.”
Now of all the functions specified above, members of council only participate in and or are only aware of A-D. The rest are presumed to be performed by the Chairman and or staff of Council. The Constitution on the role of lawyers in the NJC provides of paragraph 20 of the Third Schedule thus:
“(i) five members of the Nigerian Bar Association who have been qualified to practice for a period of not less than fifteen years, at least one of whom 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;”
While it is correct that paragraph 20 quoted above limits the participation in council of legal practitioners; until about 3 weeks ago legal practitioners have always been in attendance at every council session. The rationale for their participation I gather was hinged on the fact that to properly perform their duty as it relates to appointment, they needed to know the disciplinary records of serving judges so that they could be seised of all facts when elevation to appellate courts and appointment as Head of Court are being considered. It was also thought since he who could appoint could also dismiss, the stipulation could purposefully be interpreted to accommodate the participation of legal practitioners at all stages of Council proceedings.
However, about 3 weeks ago, in the middle of proceedings of the CJN/PCA face-off, legal practitioners were required to recuse themselves. The coincidence was inauspicious. From that point the Council continued unabated with the process that has led us to the sad state of affairs that now exists.
SUIT NO FHC/ABJ/CS/723/2011
The plaintiff is the Hon. Justice Isa Ayo Salami President Court of Appeal of Nigeria and the 11 defendants are principally the National Judicial Council and 11 other members of Council excluding of course the representatives of the Bar. The cause of action arises from the disciplinary proceedings in the nature of the report of 2 committees set up by the NJC leading to the meeting of the 18th of August 2011 wherein the PCA’s retirement was purportedly recommended to the President of the Federal Republic of Nigeria. He was also suspended forthwith from the performance of his constitutional and judicial functions.
From undisputed facts available to us, NJC was aware of the pendency of the above law suit. This is clear from the press statement signed by its secretary and published in many national dailies between the 18th and 20th of August 2011. I have it on irrefutable authority that the NJC decided to proceed with their action in the face of pending court proceedings ‘Since the said papers were not signed by any judge to show that it had been properly filed; that no court or date of return was stated on the process; parties that were NJC members were not served and for that reason section 158 of the Constitution applies and that NJC is therefore not subject to the direction of any authority or any person’. I must at this stage reproduce the provisions of section 158 of the 1999 Constitution; it provides thus:
158. (1) In exercising its power to make appointments or to exercise disciplinary control 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.
The question is whether this provision allows the NJC to proceed with the action regardless of the pendency of court proceedings. Is the court here an ‘authority’ or a ‘person’? The relevance of this poser is that if answered in the affirmative then that provision acts as an ouster clause to court intervention to the actions or inaction of the NJC. I will like to say straightaway that Section 158 is not an ouster clause to the powers of the court to intervene and correct any perceived error made by the NJC which has provided a cause of action to the injured party.
Section 6-(1) of the 1999 Constitution provides that ‘The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation’. Subsection 3 also provides that the courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection (5) (a) to (1) of this section, shall be the only superior courts of record in Nigeria; and save as otherwise prescribed by the National Assembly or by the House of Assembly of a State, each court shall have all the powers of a superior court of record.
Sub-section 6 of the said section 6 provides that he judicial powers vested in accordance with the foregoing provisions of this section -
Shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law
(b) shall extend, to all matters between persons, or between government or authority and to any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
The effect of the foregoing is that ‘Courts’ as used in here cannot be equated to ‘persons’ or ‘authority’. If the framers of the Constitution had wanted to exclude courts from interfering in the process of the NJC it would have expressly said so in section 158 of the said Constitution.
Consequently, the matter was clearly sub judice when the NJC proceeded with its actions on the 18th of August 2011. I am recommending to NEC to condemn the actions of the NJC in going into a matter which at that time was and is still before a superior court of record. The judicial reversal of the NJC’s unfortunate and worrisome actions is a matter to be left for the law courts to deal with as they deem fit.
It is a matter of great regret and shame that a judicial organisation of the calibre of the NJC can ride roughshod over the processes of a court of law. The implication for Nigerian judicial process is catastrophic. If not remedied, we are witnessing the slide into anarchy and lawlessness which history will record as having been fired up by the judiciary. (a part of the legal profession) We shall not sit idly by and watch our profession ridiculed and brought into disrepute in the public domain.
I am recommending that the NBA withdraw her members from the NJC pending when appropriate amendment to the Constitution will be made inter alia (i) increasing our membership from 5 to 10, (ii) restructuring membership and functions in such a way as to make the body functional and less prone to dictatorship and abuse of power and (iii) removing any dichotomy that seeks provide levels of membership of the Council, we are either Council members or we are not.
I am further recommending to NEC to advise the President having regard to the uncontroverted fact that a suit was pending when the NJC brazenly took their decision, to decline to proceed further with the matter and to advise NJC to revert to status quo ante. The position of the recommender is subject to the approval or otherwise of the confirming authority.
Finally, I have refrained from touching on the issues that are sub judice. Be it noted that our NBA Okpoko Committee Report is not affected by the pending action in the Federal High Court. I recommend to NEC that we discuss it post-haste and take a decision.
SWEARING-IN CEREMONY FOR THE CONFERMENT OF THE RANK OF SENIOR ADVOCATE OF NIGERIA
I received the CJN’s letter dated the 1st of August 2011 on the above subject matter inviting me to present a speech on behalf of the NBA on the 26th of August 2011 at the swearing-in ceremony which falls within our Annual General Conference taking place at Port Harcourt, Rivers State from the 21st – 26th of August 2011. As you are aware we legal practitioners regard it as a flagship event for the Nigerian Bar. His lordship traditionally chairs the opening ceremony and his official invitation had long been forwarded. I informed his lordship about this sterling event sometime in February this year when I paid him a courtesy visit. I consider the fixing of the swearing in of senior advocates to a date i.e. the 26th of August 2011, which is the date fixed for Conference communiqué, press conference and closing ceremonies as an affront and disrespect to the entire Bar. After all, the new Senior Advocates are members of the Nigerian Bar Association, who ought to be with members of their profession at this point in time. I know as a matter of fact and record that the 19th of September 2011 had earlier been selected as the date for the swearing-in ceremony. It is an appropriate date as it is traditional to swear in new senior advocates at the opening of new legal year and we understand that the said date marks the opening of the 2012 legal year.
There are other factors such as the on-going Ramadan fast, the vacation for the legal profession which ends on the 18th September 2011 which are compelling reasons why the ceremony ought to be shifted. The exercise conducted by Kutigi CJN (Rtd) had the recepients sworn in at the opening of legal year presided over by Katsina-Alu CJN.
I am recommending to NEC the following urgent steps; (i) The Bar shall boycott the ceremony and all her members are advised to stay away including those to be conferred the rank. (ii) Any legal practitioner that at attends the ceremony will not be referred to by member of the NBA with any rank he possesses and if in any NBA body such as the Body of Benchers will lose all privileges and be stripped of membership of any committee or body that the NBA participates in. We advise that the ceremony be shifted to the 19th of September 2011.
Gentlemen and ladies of this august body, I have not commented on issues relating to the Conference. It will be taken up at the appropriate stage when Committee Chairmen present their reports. The foregoing matters will naturally come up for debate. Let us be the learned people that we are in the way and manner that we present our arguments. Decorum and decency should be our guiding principles. I wish you an inspiring and exciting conference.
Joseph Bodunrin Daudu SAN
22nd August 2011