Between NJC And Justice Gladys Olotu, Who Will Laugh Last

Six months after the Court of Appeal voided the compulsory retirement of Justice Gladys Olotu of the Federal High Court, the National Judicial Council (NJC)’s failure to file its Notice of Appeal due to bureaucracy among others, until recently, has delayed a final justice by the Supreme Court, writes Lagos-based lawyer…..

The Supreme Court will in the coming days consider whether the Latin maxims ‘Iustitiam morari iniustitia est’ meaning ‘to delay justice is injustice’, and ‘Qui iustitiam moratur iustitiam negat’ meaning ‘he who delays justice denies justice’ are relevant to the current state of proceedings in Suit No.: SC/W/715/2022, APPEAL NO.: CA/A/385/2018 SUIT NO.: NICN/ABJ/380/2016 between the National Judicial Council (NJC) as Appellant/Applicant and The Honourable Justice Gladys K. Olotu, President Of The Federal Republic Of Nigeria, Attorney General of the Federation, Chief Justice of Nigeria and the Chief Judge of the Federal High Court.

The matter before the Court is the 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 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, also in Abuja.

Aggrieved at 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 the President of the Federal Republic of Nigeria 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 of the Federal Republic of Nigeria 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 as follows: “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 (1) 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 the 20th day of September, 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.”

“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 whatsoever.”

‘Appellant entitled to all benefits, 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.

He held: “The Appellant is entitled to all benefits and privileges of her office as a Judge of the Federal High Court.

“According Order entering Judgment for the Appellant as per the reliefs in her Originating Motion is hereby made. No award as to cost.”

Reinstatement?

Justice Senchi 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 compulsorily 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.*

Reinstated Nigerian judges

Can a wrongfully removed judge be reinstated? Is it a legal possibility? Certainly. There are several examples.

Hon Justice Olamide Folahan Oloyede of the Osun State Judiciary was unjustly retired by the National Judicial Council (NJC) in 2016.

The jurist approached a Federal High court sitting in Abuja to challenge her compulsory retirement and won.

In June, 2021, the court upheld her claim. It described Justice Oloyede’s removal as illegal and directed the Osun State government to reinstate her.

The government complied.

Justice Oloyede on Tuesday, June 1, 2022, resumed at the Ijebu-Jesa division of the Osun State High Court

She is now retired.

Similarly, Justice Iyabode Subulade Yerimah of the Oyo State Judiciary was sacked along with the then Chief Judge of Oyo State.

Justice Yerimah was also reinstated and currently sits as a Judge of her state judiciary.

Effect of Appeal Court judgment

Many analysts believe that the judgment in Justice Olotu’s case threw the judicial system into a tailspin as it meant that the NJC cannot recommend judicial officers for sanction without the Federal Judicial Service Commission (FJSC).

Since NJC came into existence by the virtue of the 1999 Constitution and began operations in 2000, it has maintained sole power over judges’ discipline.

In its 22 years of operation, it has recommended over a thousand judges for various disciplinary measures, ranging from suspension to compulsory retirement and dismissal.

Apart from Justices of the Supreme Court, Court of Appeal, Federal High Court and Chief Judges of states, NJC has also recommended a sitting Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, for compulsory retirement, without the input of the FJSC as demanded by the ruling of the Court of Appeal.

By the ruling of the Court, the recommendation prematurely ending Onnoghen’s career as well as all others, in the last 22 years, appeared to have become null and void.

NJC’s Notice of Appeal and bureaucratic bottlenecks.

Months after the judgment and out of time, the NJC is seeking leave of the Supreme Court to file its Notice of Appeal.

It stated this in its Motion on Notice before the apex court, supported by a June 17 Affidavit in Support of the Motion sworn by the NJC’s Assistant Chief Legal Officer Uju Lisa Ekwulu.

Ekwulu stated that after the Court of Appeal, Abuja gave judgment in Justice Olotu’s favour on February 25, 2022, the NJC “was unable to immediately obtain the judgment of the Court of Appeal until the 23rd day of March, 2022 almost about a month after the delivery of Judgment.”

She said the judgment was thereafter taken to the NJC meeting composed of members from various states of the country for further directive and that it was after deliberation of the NJC that it was decided to appeal the decision of the Court of Appeal and consequently brief new counsel.

New consortium of lawyers, more delay

She averred that the NJC on April 25, 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. Garb Tetengl, SAN, Muiz Banire, SAN and Yakubu Malkasuwa, Esq., to file an appeal to Supreme Court challenging the Court of Appeal decision.

Ekwulu said: “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 the NJC’s lead counsel Prince Fagbemi 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 needs to seek the leave of the Honourable Court to file the Notice of Appeal out of time.”