An interesting story is developing between the National Judicial Council (NJC) and Jus-tice Gladys Kpenikpe Olotu of the Federal High Court. Olotu was one of the two judges recently recommended by NJC to President Goodluck Jonathan for compulsory retirement on grounds of gross misconduct. President Jonathan has accepted NJC’s recommendation.
The NJC said Olotu was recommended for compulsory retirement pursuant to the findings by the council on the allegations contained in the petitions against her. The council contends that Justice Olotu failed to deliver judgment, only to deliver same 18 months after the final address by all the counsels in the suit, contrary to the constitutional provision that judgments should be delivered within a period of 90 days.
The NJC is also incensed that the judge entertained a post-judgment matter in Port Harcourt after delivering judgment, which made her function as official. She was made to appear before a three-man investigation committee. There, Justice Olotu explained and argued her case. But she is alarmed that after the convincing presentation she made to the investigation committee, the council still went ahead to recommend her for compulsory retirement. She has therefore, petitioned President Jonathan on the issue while challenging the NJC to go to Court of Appeal if her explanation or presentation in the allegation that borders on garnishee proceedings is not acceptable to it.
Her petition to the President is now in the public domain and those of us who take more than a passing interest in what judges do or do not do in court are beginning to see another breaking story, which will, one way or another, re-enact, to some degree, the case between a former Chief Justice of Nigeria (CJN), Justice Aloysius Katsina-Alu and a former President of the Court of Appeal (PCA), Justice Ayo Isa Salami. Let us recall that Katsina-Alu and Ayo Salami were pitted against each other, following the suspicious elevation of the latter to the Supreme Court by the former.
Salami, who was supposed to be the beneficiary of a promotion exercise had smelt rat. He felt that he was elevated for the wrong reasons. Consequently, he went to the High Court and deposed to an affdavit in which he accursed Katsina-Alu of sundry crimes, including the “arrest” of the judgment of the Appeal Panel in the Sokoto State gubernational election. The NJC had to intervene in the matter by appealing to Salami to withdraw the affidavit with a promise to investigate the matter. Strangely, the NJC, after its investigations, said it was indicting Salami on the basis of the same affidavit, which it had asked him to withdraw. The Council said that Salami lied on oath against Katsina-Alu.
Salami was then asked to apologise to Katsina- Alu and the NJC. But Salami stood his ground. This set him on collision course with both the NJC and Katsina-Alu. Salami had to seek redress in court. But the matter was yet to be decided when President Jonathan acted on the recommendation of the NJC and Salami was compulsorily retired. The issues arising from this are still pending before the court for determination.
The NJC is empowered by Part 1 of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria, 1999, to hear the complaints made against judges and all other categories of judicial officers.
It is also charged with the disciplining of judges and hearing of complaints against them. It was on the strength of this that two investigation panels were set up to look into the various allegations against Justice Olotu and Justice U. A. Inyang. Whereas Justice Inyang may have swallowed the bitter pill as handed down by the NJC, Justice Olotu believes that her recommendation for compulsory retirement was severe, harsh and unjustifable.How did Justice Olotu try to convince the investigation panels? She has argued that the first petition against her was withdrawn by the petitioner on the grounds that he filled it out of ignorance of the legal process and that it had been overtaken by events, following the legal steps he took, based on proper advice by his counsel.
She, there-fore, submits that it is trite law that when a charge is withdrawn, there is nothing left for the defendant or respondent to answer. Another petition was one, which urged the NJC to order Justice Olotu to conclude a case after she withdrew from it for personal reasons. As for the case in which judgment was delayed, the justice said she was transferred from Uyo to Port Harcourt Division before she could conclude the matter. The case was later moved to Port Harcourt, where she eventually concluded it and de-livered judgment. Her argument here is that judgment was delayed because of the transfer and the volume of work, which she had to do on the case.
But the one that elicits my interest is that which borders on the technical and legal aspects of garnishee proceedings. Here, she argued her case and submits that the allegations made against her in this regard are is-sues to be decided by the Appeal Court and not the NJC. In her letter to President Jonathan, she has cited decided cases to show that a judgment creditor can apply for Garnishee Order Nisi to enforce the judgment entered in his favour. One of the cases said that garnishee proceedings are separate proceedings between the judgment creditor and the person or body, who has custody of the assets of the judgment debtor even though it flows from the judgment that pronounced the debt owing.
Another decided case had it that garnishee proceedings are legitimate exercises of the right of a party to employ auxiliary methods to enforce the judgment obtained in his favour, and they are competent not-withstanding the pendency of a motion for stay of execution. It has also been decided in the past that the existence of an application, seeking for an order of stay of execution of a judgment does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. Therefore, the contention of a respondent that an appellant is not en-titled to enforce a judgment in its favour to garnishee proceedings because the respondent file dan application for stay of execution is untenable.
From the foregoing, it appears to be settled that a motion for stay of execution cannot stop the application of garnishee proceedings. This is the crux of the matter. This is the matter Justice Olotu argued before the NJC investigative panel and which she has brought to the attention of President Jonathan for consideration. Her argument is that if these decided cases must be relied upon, as is usually done in law, then there can be no basis for the allegation of gross misconduct leveled against her.
She is, indeed, saying the NJC cannot rely on a matter that should be decided in her favour to indict her. Based on the decided cases, the hands of the NJC ought to be tied. But if the council must insist on the propriety of the issue, then it should go to the Court of Appeal for further adjudication or interpretation of garnishee proceedings. This is the argument Justice Olotu has put forward.
The scenario, for me, is clearly interesting. It urges the NJC to, for once, eat the humble pie. The council is being asked to descend from Olympian heights and take on issues strictly according to the laws of the land. The snag here is that the NJC may feel that one of its subjects is joining issues with it or asking it to approach a higher court. But Justice Olotu says this is not her intention. She told Mr. President that she does not wish to put him in an unenviable position of an arbiter between her and a superior arm of government, the National Judicial Council.
She said she is, instead, concerned about the serious elements of malicious and unfounded wickedness against her, which has led to the recommendation for her compulsory retirement. Olotu’s appeal is a humble one. She has not confronted the NJC, as was the case in that of Salami. What NJC should, therefore, do is to test the issue of garnishee proceedings at the Appeal Court.
The outcome of the case is going to enrich Nigeria’s jurisprudence the more. Even though President Jonathan has already approved Olotu’s retirement, it will make sense for him to take interest in what the courts will decide. This will enable Mr. President to reverse himself if the court so decides. The matter should remain open-ended until the Appeal Court decides. The burden now is on NJC to accept Olotu’s appeal by going to court.
The post NJC on trial again appeared first on The Sun News.
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