Uneasiness As Supreme Court Set To Review Disciplinary Powers Of NJC

The Supreme Court is set to deliver judgement on a landmark case which will judicially determine the scope of disciplinary powers wielded and exercised by the NJC on Judges.

Recall that a three-member panel of the Abuja Division of the Court of Appeal, had on February 25, 2022, declared that the National Judicial Council, NJC, under the law, does not have the sole powers to discipline erring judges in the country without recourse to the Federal Judicial Service Commission, FJSC.

Specifically, the intermediate appellate court had ruled that the FJSC, given the provisions of the constitution, must be aware of any infraction committed by any erring judge and make recommendations regarding the affected judicial officer to the NJC before the Council itself can proceed with investigation of such judicial officer and possible recommendation for sanction to the applicable head of the executive arm of government for endorsement.

It is believed that if upheld by the apex court, the decision would substantially whittle down the pristine powers of the NJC as well as fundamentally restructure the disciplinary process for Superior Judges in the country because the NJC had solely exercised the powers of discipline over judges since 1999 when it was established by section 153 of the 1999 Constitution without any recourse to the FJSC.

According to LegalAttorneyBlog, in view of the sweeping implications of the decision, the National Judicial Council did not file its appeal to the judgment immediately until after it had consulted widely on what its position on the matter would be. before the NJC could act, time allowed by law to appeal was already spent.

According to NJC’s Chief Legal Officer, Uju Lisa Ekwulu, the Council after meetings, decided to hire a consortium of lawyers led by Prince Lateef Fagbemi (SAN) to handle the sensitive issue at the apex bench.

In an affidavit deposed to by Ekwulu to secure the leave of the court to appeal the decision out of time, she disclosed that the NJC on April 25, 2022 briefed new counsel, made up of a consortium of lawyers headed by Prince Lateef O. Fagbemi, SAN to lead other distinguished senior members of the bar, namely: Paul Usoro, SAN; Dr. Garba Tetengi, SAN; Muiz Banire, SAN and Yakubu Maikasuwa, Esq., to file an appeal to the Supreme Court challenging the Court of Appeal’s decision.

Ekwulu’s exact words in the affidavit: “I know as a fact that the delay in briefing the consortium of new lawyers to represent the Appellant/Applicant was due to the administrative bottlenecks and red-tapes involved in the process of briefing an external counsel/solicitor in the Appellant’s Council.

“Although at the time of briefing Prince Lateef O. Fagbemi, SAN, and the consortium of lawyers so briefed, the time prescribed by the rules of the Honourable Court for bringing an appeal had not lapsed but was significantly spent.”

The deponent averred that she was informed by NJC’s lead counsel, Prince Fagbemi (SAN) that “the consortium of lawyers met three times inclusive of 19th May, 2022 to agree on what and how to proceed with this matter.

“Unfortunately, his earlier commitment(s) as a member of the Legal Practitioners’ Privileges Committee, LPPC, which has been meeting repeatedly in May, 2022 made him unable to get to the work on time and conclude same, until the time for the filing of this Application had lapsed;

“That he knows as a fact that the Appellant/Applicant is out of time within which to file its Notice of Appeal and there is the need to seek the leave of the Honourable Court to file the Notice of Appeal out of time.”

The application before the court is meant to regularise the process filed by the NJC before the Supreme Court to set aside the Court of Appeal decision on the extent of powers exercisable by the NJC in judges’ discipline.

The suit, which is marked SC/W/715/2022, arose as a result of the NJC’s bid to challenge the Court of Appeal’s decision invalidating Justice Olotu’s compulsory retirement from the Federal High Court, Abuja.

Justice Olotu was appointed a judge of Federal High Court on July 28, 2000 and resumed on the Bench on September 1, 2000. The NJC recommended her compulsory retirement on February 27, 2014, which the then President Goodluck Jonathan approved.

The NJC’s compulsory retirement hammer also fell on Justice U. A Inyang of the FCT High Court, Abuja.

Aggrieved by the decision, Justice Olotu sued the NJC at the National Industrial Court of Nigeria (NICN) in Abuja. The NICN, on September 20, 2017 upheld the NJC’s decision.

Dissatisfied, the Judge approached the Court of Appeal in Abuja for redress and won.

The Appellate Court on February 25, 2022 voided Justice Olotu’s compulsory retirement.

In a unanimous judgment, a three-member panel of the court, led by Justice Peter Ige, held among others, that the process leading to Justice Olotu’s removal was flawed.

Justice Danlami Senchi, who read the lead judgment, held that since the Federal Judicial Service Commission (FJSC) did not recommend that Justice Olotu be compulsorily retired, the recommendation made by the NJC to Nigerian President in that regard was unlawful, null and void.

Justice Senchi noted that since the FJSC is constitutionally empowered to recommend lawyers for appointment as Federal Judges, its recommendation is also necessary before such a judge could be relieved of his or her appointment.

He proceeded to hold that without the FJSC first recommending a judge for removal, such recommendation by the NJC (as it is in the case of Justice Olotu) and the subsequent acceptance of the recommendation by the President are a nullity.

The Court of Appeal thus, set aside the earlier judgment by Justice E. N. Agbakoba of the NICN, which upheld Justice Olutu’s compulsory retirement.

In reading the judgment, Justice Senchi held: “This finding by the trial court is perverse, wrong and a miscarriage of justice with regards to the appellant whose complaint was that the jurisdiction of the 2nd respondent was not evoked for failure to comply with Paragraph 13(b) of Part I of the Third Schedule to the 1999 Constitution. Thus, the decision of the trial court breached the right of the appellant to fair hearing and such decision is a nullity.

“The issue number one of the appellant and or the issue couched by the court is hereby resolved in favour of the appellant and against the respondents.

“Thus, this appeal is meritorious and it is accordingly allowed. Going into the other issues will only amount to a waste of judicial energy.

“The decision of the National Industrial Court in Suit No. NICN/ABJ/380/2016 delivered on September 20, 2017, being a nullity, it is hereby set aside.

“Consequently, the action of the 2nd respondent by recommending the compulsory retirement of the appellant as a Judge of the Federal High Court, and the approval or acceptance of such recommendation by the 1st respondent is hereby declared null and void and of no effect, being a nullity, it is hereby set aside.”

The court added that the appellant is entitled to all benefits and privileges as a serving judge.

The judgment also specifically held that Justice Olotu should be paid all her benefits as a Federal High Court Judge.

Justice Senchi, however, was not direct on whether or not Justice Olotu should be recalled, and did not make a specific order of reinstatement.

However, he did hold, in orders 1-4, that the recommendation upon which Justice Olotu was compulsory retired was a nullity, and it set it aside. This implies that Justice Olotu was never retired in the eyes of the law and is still a serving Justice.