Justice Nasir Ajanah
As calls for caution continue to trail the Kogi State House of
Assembly’s recommended removal of Justice Nasir Ajanah as the Chief
Judge, there is unease in the confluence state. James Azania
reports
On Tuesday, the Kogi State House of Assembly recommended the
sack of the state’s Chief Judge (CJ), Justice Nasir Ajanah. The
move, which had been on the board since late last year, was
temporarily aborted by the injunction of the state High Court
sitting in Koton-Karfe. The suit was instituted by the CJ and the
Registrar of the Kogi State High Court.
The onslaught against Ajanah thickened last weekend and led to a
protest by judicial officers in Lokoja. This did not stop the
assembly from taking its the following day.
The Kogi House of Assembly accused the CJ of gross misconduct,
including financial breaches. Details of the misconduct are
contained in the report and recommendations of the House Committee
on “Public Accounts on the State Auditor General’s Report on 2016
Financial Statements,” in Lokoja.
Presenting the report, the chairman of the committee, Alhaji
Ahmed Mohammed, said the CJ should step aside to defend himself
over the alleged indictment by the state Auditor-General.
Mohammed, at the plenary sitting on Monday, said the Public
Accounts Committee was set up in line with Section 103 of the
Constitution of the Federal Republic of Nigeria 1999 (as
amended).
The committee, according to him, was mandated to investigate
reported cases of financial breaches, noncompliance with financial
regulations and poor handling of financial records by various
ministries, departments and agencies (MDAs) of the government.
He said the Kogi State Judiciary in 2016 expended its budget
above the approved limits provided in the 2016 Appropriation Law to
the tune of N7,574, 850 without the approval of virement
application.
“It was also reported by the State Auditor-General that Kogi
State High Court made huge cash withdrawal to the tune of
N137,607,334.11. The cash was withdrawn from High Court Bank
account in the year under review.
“This transaction breached the provisions of chapter 6,
Regulation 632, which stipulates that the use of cash for payment
is hereby prohibited,” he said.
The committee, which recommended the removal of the CJ, gave a
second alternative of stepping aside, pending his appearance before
the House Committee on Public Accounts to defend himself.
It also recommended that the Chief Registrar should be referred
to the Judicial Service Commission (JSC) for disciplinary action
and that the state government should commence immediate payment of
judicial staff salaries.
The Majority Leader of the House, Abdullahi Hassan-Balogun moved
for the adoption of the report and was seconded by the Deputy
Minority Leader, Oluwatoyin Lawal.
Another member, Haruna Musa, in his contribution, however, urged
the House to take cognisance of the subsisting court order on the
impasse between the house and the judiciary, and be guarded
adequately.
In his contribution, the Chief Whip, Victor Adewale Omofaiye
urged that efforts should be made to pay judiciary staffs the nine
months salary arrears while the investigation went on.
Speaker of the House, Prince Matthew Kolawole adopted the report
and recommendations following majority voice votes by members
present.
All these notwithstanding the December 18, 2018 application that
was brought before Kogi High Court sitting in Koton-Karfe seeking
an out of court settlement of the impasse.
The application to resolve out of court the legal impasse
between the CJ, the State Governor and the House of Assembly was
granted.
Justice Alaba Omolaye-Ajileye granted the application of counsel
to the state governor and the assembly who are defendants in the
suit instituted by the CJ and Chief Registrar of the state
judiciary.
Counsel for the defendants, Mr Rotimi Oguneso (SAN), made known
his personal conviction that the nature of the matter was such that
ought to be resolved out of court.
Oguneso, therefore, applied for an adjournment to allow him to
explore the possibility of settlement out of court.
Leading four others for the appellants, Chief Adegboyega Awomolo
(SAN), did not oppose the application.
He, however, applied for an extension of time of the lifespan of
the earlier orders of the court, ‘to avoid embarrassment to the
parties to preserve the res.’
In his ruling, Omolaye-Ajileye noted that it was part of the
duties of a court to encourage amicable settlement of matters out
of court.
He commended the initiative of Mr Oguneso, in seeking to get the
matter resolved out of court, but held that the fears expressed by
Awomolo over the need to preserve the res of the matter were
well-founded.
He said it was expedient that the lifespan of his earlier orders
should be extended, in the interest of justice and in order to
prevent the occurrence of any irreparable mischief.
He accordingly ordered that his earlier order remained in force,
pending the hearing and determination of the motion on notice of
12th December 2018.
Justice Omolaye-Ajileye further restrained the defendants from
taking any step, under any guise, to frustrate the case and
adjourned the case to February 4th, 2019.
The CJ and Chief Registrar had approached the court to challenge
the purported plan by the assembly to investigate them and the
state judiciary.
Back then, the house had allegedly constituted a committee to
investigate the judiciary upon receipt of a petition by the
Secretary to the State Government (SSG), Folashade Arike Ayoade,
over alleged impasse between the judiciary and the state
government.
The appellants had sought and were granted three injunctions
restraining the defendants from threatening or interfering in the
discharge of the duties of the applicants.
They also urged the court to restrain the defendants from taking
cognizance of any report emanating from the ad-hoc committee set up
by the state assembly on the 11th December 2018 pending the
determination of the substantive suit.
On March 5, 2019, the Judiciary Staff Union of Nigeria (JUSUN),
Kogi State chapter dragged the state governor, Alhaji Yahaya Bello,
the CJ and seven others before the National Industrial Court
sitting in Lokoja, challenging alleged constitutional breach of
non-remittance of funds accruing to the state judiciary, leading to
accumulated salary arrears of eight months and strike action.
In the originating summons filed at the court by Chief Moses
Enwere, counsel to the union, JUSUN said it went to court as a last
resort.
It alleged that the state government did not make any concrete
effort towards resolving the impasse that necessitated the strike
action which started December, last year.
Other defendants in the matter are the state Attorney-General,
the Commissioner for Finance, the Accountant-General, the
Auditor-General, the Grand Khadi, the President of the Customary
Court of Appeal and the state’s Judicial Service Commission
(JSC).
The union posed three fundamental questions among others, for
determination by the court.
They include, “whether Kogi State judiciary is not entitled, as
of right, amounts standing to its credit in the Consolidated
Revenue Fund of the state and payable to the heads of courts in
line with section 231(3) of the 1999 Constitution (as amended) and
section 5 of the Kogi State Public Finance (Judiciary Special
Provisions) Law No 6 of 1991.
“Whether the governor and his appointees joined in the case have
the power or right to withhold judiciary’s funds and thereby
failing in the payment of monthly salaries, allowances and
emoluments of judiciary staff.
“Whether the executive arm can place such conditions as staff
screening, staff data capturing, table payment or any other
condition as a prerequisite for the release of the funds without
respect for the doctrine of Separation of Powers as envisaged by
the Constitution, the Kogi State Public Finance Law.”
The union also urged the court to determine whether the
executive arm had the powers or constitutional right to usurp the
powers of the JSC, by scheming to take over payment of judiciary
staff salaries and other emoluments without reference to and
approval of the commission.
It also sought the determination of the Industrial Court,
whether on the other hand the CJ and other heads of courts, had
received any subvention since 1st July 2018 and have refused to pay
the salaries and emoluments of staff.
It, therefore, urged the court to declare that subject to the
provisions of the Constitution and laws of Kogi State, amounts
standing to the credit of Kogi State judiciary in the Consolidated
Revenue Fund of the state be paid directly to the heads of
courts.
It also urged the court to declare that the executive lacked the
power to withhold funds accruing to the judiciary and its continued
refusal to remit such funds due to the judiciary, as
unconstitutional, illegal, ultra vires, wrong, null and void and of
no effect.
JUSUN, therefore, asked for an order of the court directing the
full payment of the accumulated eight months subvention owed the
three courts and the JSC, which resulted in the industrial action
that commenced December, last year
It further asked for a perpetual injunction restraining the
governor and his agents from further withholding of amounts
standing to the credit of the state judiciary in the Consolidated
Revenue Funds.
JUSUN also urged the court to restrain the executive from
“taking steps that tends towards usurping the powers of the JSC, in
terms of payment of emoluments and discipline of judiciary
staff.”
The originating summons was supported by a 21-paragraph
affidavit deposed to by Mr Emmanuel Waniko, JUSUN chairman in the
state, in which he declared that the staff could no longer afford
transport to work and were neither creditworthy.
The court is yet to give a date for commencement of hearing the
matter.
Following the institution of JUSUN’s suit, Governor Yahaya
Bello, in a state broadcast said that funds meant for payment of
staff salaries and allocations to the judiciary are “sitting idly
in banks awaiting readiness” of their leadership to submit staffs
to table payment.
Bello said money for several months salaries for the judiciary
staff were intact.
He explained that the problem was the refusal of the leadership
of the Kogi State Judiciary, in collusion with the leadership
JUSUN, to forward the staff payroll for a ‘pay parade.’
“My preoccupation is how to get that money to the innocent
staffers without breaching applicable service rules or our
collective agreement with labour. I trust the Almighty God that
reason will prevail sooner than later.
“In any case, monies amounting to several months salaries due to
Kogi State civil servants working in the judiciary are sitting in
the banks,” the governor said.
On the lawsuit filed against the governor and his administration
along with the state CJ and six others by JUSUN, Bello said it was
politically motivated.
He said, “I am not surprised by the timing of the case,
considering the season we are in, and the politicisation of
institutions all over the place.
“The refusal of the leadership of the Kogi State Judiciary to
forward their staff payroll for the Pay Parade, with the collusion
of JUSUN leaders, is well documented.
“I have pleaded unsuccessfully with them for months now to do
the needful and spare their innocent members this trauma”.
He added that the state house of assembly had also tried to
intervene, only to be stopped by an “injunction from the judiciary,
curiously obtained while courts claimed to be on strike.”
Bello said he had already petitioned the Chief Justice of
Nigeria (CJN), to intervene since November, last year, but was yet
to receive any feedback from the CJN.
“We look forward to being educated on how a pay parade across
all branches and cadres of our civil service is prejudicial to the
independence of the judicial arm, but not the Legislative”, he
enthused.
CJ reacts
The CJ, in a statement issued on Wednesday, through Saqeeb
Saeed, Senior Information Officer, Kogi State Judiciary, said:
“Yesterday afternoon, Tuesday, 2nd April 2019, the media,
especially the social media, was awash with the report of the
recommendation of the Kogi State House of Assembly to His
Excellency on the Honourable Chief Judge, the content of which we
are yet to know. Today, the news reportage in most traditional
media didn’t come to us as a surprise. It was expected, following
the events occurring in Kogi State in the last 72 hours.
“Within this period, the leadership of the Kogi State branch of
the Judiciary Staff Union of Nigeria had protested against the plot
by the state governor, His Excellency, Alhaji Yahaya Bello and the
Kogi State House of Assembly, to oust the Chief Judge of the state,
Hon. Justice Nasir Ajanah.
“Despite the media report of the denial by Mr Kingsley Fanwo,
Media assistant to the governor, who even accused the judiciary of
peddling rumours, JUSUN’s fears were confirmed by the macabre dance
reportedly displayed by the Kogi State House of Assembly yesterday,
through its speaker, Rt. Hon. Mathew Kolawole.
“This development has necessitated our call for caution and
restraint on the part of the executive and legislative arms of Kogi
State government to avoid overheating the polity. We make this
submission reliant on the subsisting order of the Koton-karfe
division of the High Court of Kogi State, which ordered the three
arms of government in the state to maintain the status quo ante
belum, on 13th December 2019.
“If it should be contemplated that any of the heads of the three
arms of government in Kogi State would ever disobey any court order
or contravene provisions of the constitution, the leadership of the
judiciary would definitely not be counted among. This is the more
reason why His Excellency, Governor Yahaya Bello and Speaker of the
Kogi State House of Assembly would have cautiously abided by their
oaths of office, to uphold and defend the Constitution, which they
swore allegiance to.
“The report purportedly presented to and acted upon by the
assembly remains only within its purview and probably that of the
executive. While neither the Honourable Chief Judge nor Chief
Registrar of the High Court received any correspondence, not to
talk of appearing before any House Committee to defend themselves
against any allegation, even if trumped up, before and since the
court order was issued. His lordship takes exception to the use of
such words as “gross misconduct” in reference to him.
“We’re very sure that the framers and users of this phrase that
is capable of tarnishing the reputation and image of the Hon. Chief
Judge knows the implication and likely consequence of any malign
against the Hon. Chief Judge over unsubstantiated allegations.”
On its part, the Kogi State chapter of the Social Democratic
Party (SDP) warned against unconstitutional removal of the Chief
Judge of Kogi State, when his tenure is not yet over.
In a statement signed by the state chairman of the party, Alhaji
Mouktar Atimah, the party noted that similar removals done were
reversed by the Supreme Court, saying that this will not also
stand.
The Peoples Democratic Party (PDP) in the state also faulted the
lawmakers’ decision.