It is with absolute respect to your esteemed office and full recognition of your position as the President of our great nation that I write to express my deep feelings about the subject-matter of this open letter. May I then, with all respect and loyalty to your high office, state:- The office of President of the Federal Republic of Nigeria is a creation of the Constitution of the Federal Republic of Nigeria. The President on May 29, last year, swore to the oath of allegiance contained in the Seventh Schedule of the 1999 Constitution, that he will be faithful and bear true allegiance to Nigeria and above all, will preserve, protect and defend the Constitution.
In the oath of office, which the president swore to, it is clearly stated that he will do right to all manners of people, according to law, without fear or favour, affection or ill-will and that he will devote himself to the service and well-being of the people of Nigeria. The legal interpretation of the salient provisions/requirements of oath of office of the president has been interpreted by serious legal minds to necessarily include that the president will not take unconstitutional steps either against the nation as a whole or any individual who is a citizen of Nigeria. This by extension means that the president will not assume either political of Constitutional Powers which is not expressly donated to him by the Constitution.
I, the Alaafin of Oyo and indeed the majority of Yoruba monarchs of like minds, are at a complete loss as to what exactly is the position of the president in the Justice Ayo Salami’s suspension saga. I have requested for legal opinions of well informed people of good standing in the legal profession on my understanding of the constitutional provisions in relation to the appointment, removal and discipline of judicial officers, especially, a President of the Court of Appeal. I have been informed that my opinion on the correct interpretation of the relevant section of the Constitution on the appointment, removal and discipline of a judicial officer, particularly the President of the Court of Appeal is the true and correct position of the law. I must therefore call the attention of His Excellency to the provisions of Section 238 (4) and (5) of the Constitution and paragraphs 21 (a) and (b) of the third schedule of the same constitution.
Section 238(4)(4) states that if the office of President of the Court of Appeal is vacant, or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the president shall appoint the most senior justice of the Court of Appeal to perform those functions.
Section 238 (5)(5): Except on the recommendation of the National Judicial Council,an appointment pursuant to the provisions of subsection(4)of this section shall cease to have effect after the expiration of three months from the date of such appointment, and the President shall not re-appoint a person whose appointment has lapsed. And under Paragraph 21 (a)and(b)of the third schedule of the 1999 Constitution, it is provided 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 Justices 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 Commission 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 Khadi and Khadis 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.
From the above provisions of the law, the following are not in doubt. That; (1)The National Judicial Council is the statutory body saddled with the responsibility of recommending for the approval of the President, persons for appointment as Federal Judicial Officers. (2) The National Judicial Council can also recommend to the President persons to be removed as National Judicial Officers. (3) The discipline of such Judicial Officer, that fall short of removal is vested on the National Judicial Council. (4) The President has no constitutional powers to exercise in the discipline of a Judicial Officer where the complete removal from office of the officer is not recommended by the NJC.(5) Where a President of the Court of Appeal is disciplined by the National Judicial Council (NJC) by way of suspension from office (which is not removal from office) the President shall have the power to appoint the next most senior judge of the court in Acting Capacity for only three months (6) The Appointment of such a person in acting capacity shall not be extended by the President unless on the advice or recommendation of the National Judicial Council (NJC). Applying the above provision, of the constitution to the peculiar facts and circumstances of Justice Ayo Salami’s case; it will be noted, that; (1)The suspension of Hon. Justice Ayo Salami as the President of the Court of Appeal was on the recommendation of the NJC. (2) The reference of the suspension/decision to Mr. President ought not to be as the 1999 Constitution does not provide that the President should play any role in the discipline of a Judicial Officer, except in cases where the recommendation of the National Judicial Council is for the removal of the Judicial Officer. (3) The National Judicial Council which is clothed with the powers to discipline Justice Ayo Salami has now seen the need to rescind its suspension order and has informed the President.(4)By the provision of the Constitution, the letter of the National Judicial Council to the President on that issue is to all intent and purpose to inform the President that there will be no need to extend the tenure of the person who is acting as the President of the Court of Appeal. (5)The President consent for the return of Justice Ayo Salami to his position as the President of the Court of Appeal is not necessary as the Constitution has not given him such power of consenting authority in such a situation. (6) The decision of the National Judicial Council to lift the suspension on Justice Ayo Salami, automatically restores him as the President of the Court of Appeal and removes whoever is occupying the office in acting capacity. (7) In the absence of a written recommendation by the National Judicial Council, the President will have no power to re-appoint a person who is in office in acting capacity. I stand to be corrected, that apart from the letter written to the President intimating him on the desire to reinstate Justice Ayo Salami as the President of the Court of Appeal, there is no other letter written to the President thereafter where the National Judicial Council recommended the extention of the period of the acting capacity of Justice Adamu Bello.
The nation is therefore asking for where the President derived the power to extend or re-appoint Justice Adamu Bello as the acting President of the Court of Appeal in view of the provisions of Section 238 (5) of the 1999 Constitution? As a foremost Yoruba monarch and the custodian of traditional rights and obligations of the Yoruba people, I think that charity must necessarily begins at home and that a father should not stand akimbo while his son is being unjustly treated. I have never met Justice Ayo Salami either in his personal or official capacity before, but something in me tells me that he is not being fairly treated.
If the President could suspend him at the time he did when his case against the relevant persons or bodies were pending, I cannot now fathom why the pendency of certain cases in court will now form the basis of not reinstating him when the body (i.e. NJC) which recommended him for suspension has rescinded that decision.
I urge His Excellency to rise above political bickering and influence and take a firm stand as a statesman, which I have no doubt, he is, to see that Justice Ayo Salami is reinstated as the President of the Court of Appeal, forthwith. This will go a long way to endear him in the minds of the people as a man who will always rise above political or personal relationship in taking necessary or desirable decisions on matters of National interest.
Please, accept the assurances of my warmest esteem and loyalty. Iku Baba Yeye. Oba Lamidi Olayiwola Adeyemi III, JP., CFR, LLD The Alaafin of Oyo and Permanent Chairman, Oyo State Council of Obas and Chiefs.
By Oba Lamidi Adeyemi III
Oba Adeyemi is the Alaafin of Oyo
Last modified: June 20, 2012