Why Osun Assembly can’t remove CJ – NBA chair

Chairman of the Nigerian Bar Association, Osogbo branch, Olayemi Abiona, talks to BOLA BAMIGBOLA on the controversy surrounding the resolution of the House recommending the suspension of the Chief Judge of the state

Your association recently wrote a letter to the Osun State Governor, Ademola Adeleke, where it took a position on the embattled Chief Judge of the state, Justice Adepele Ojo. What was the content of the letter and what feedback have you received from the governor?

My name is Olayemi Abiona. I am a legal practitioner and the Chairman of the Nigerian Bar Association, Osogbo branch. We caused the letter to be written on Friday, November 17, 2023. Unfortunately, when our employee went to deliver the letter to the governor’s office, we were informed that those who were to receive it were not available. The clerk had to return the letter with a promise that we would bring it later. When we took the letter back there, a staff member of the governor’s office again declined to receive it. I had to speak on the phone to one of the officers there who confirmed that it was an instruction given to them not to receive any letter from the NBA or any legal practitioner for now. That was how the said officer at the governor’s office put it. Since the governor refused to allow us to express our opinion through that means, we decided to go to the people directly by using the media. Probably, the governor will be able to hear us from the court of public opinion.

Have you received any response from the governor?

Officially, we have not been able to receive any response from the governor. We have seen that the Commissioner for Information and Public Enlightenment, Kolapo Alimi, said that the resolution of the House of Assembly had been passed to the National Judicial Council for further action. With that line of thinking, I believe the government is yielding to the voice of the people and retracing its steps. It’s unofficial feedback from the protest that came after the unfortunate incident.

Who did the person you spoke to at the governor’s office say instructed them not to receive letters from lawyers?

She did not mention any name. I tried to ask for her name too, but she only said she was speaking from the office of the governor and the instruction was that they should not receive letters from lawyers or the NBA.

Divergent opinions have been expressed by lawyers on the ‘step aside’ order of the House to Justice Adepele Ojo, with some lawyers saying the House has the power to investigate any public officer whose nomination was confirmed by the lawmakers, and some others arguing that the NJC is the only body saddled with such a responsibility. What is your take on that?

I have said it many times and I will continue to say it again. The House lacks the power to say a CJ should step aside in carrying out their oversight function. They can investigate any public officer in the performance of their oversight function, but they cannot punish any judicial officer. The House lacks the power to do that. They can investigate, people can write petitions to them, and they may carry out an investigation or inquiry about public petitions, but they cannot say, ‘We have investigated and so and so should happen to this judicial officer’.”

No, they can’t do that. The best they can do is after investigation, their report can be sent to the NJC with the initial petition of the complainant against the judicial officer, and the NJC will look at it. The constitution in Paragraph 21, Third Schedule, gives only the NJC the power to recommend for appointment and removal or otherwise of any judicial officer.

The perpetrators (Osun Assembly lawmakers) are relying on Section 292 of the constitution, which says the House can have an address to remove the head of the judiciary and send it to the governor. No, they have to read all provisions of the constitution together; they can’t use one aspect in isolation from the other. After the NJC has conducted its investigation and found the judicial officer guilty of the allegations against them, it makes a recommendation. Because it is the head of the courts, not an ordinary judicial officer, it recommends to the governor for the removal of the officer. The governor will then take the recommendations to the House of Assembly and the House will pass it and send it back to the governor for approval. That may not apply to any other judicial officer whom the NJC could just recommend to the governor for outright removal. The chief judge is the head of the judiciary.

That is the position the constitution provided for and there are many cases. The case of a former CJ of Kwara State, who was removed by (Bukola) Saraki is one of the cases. The CJ was removed without the NJC’s approval and the case went to the Supreme Court. The court said a governor could not remove a CJ no matter the allegation, unless it went through the NJC. That was the pronouncement of the Supreme Court and it is still valid till tomorrow; it has not been upturned by the court.

What is the implication of the actions of the executive and legislative arms of government in Osun?

Nobody, except the NJC, has powers to punish any judicial officer because if you allow the executive to do this, the implication is that it will send a bad signal to serving judicial officers because they know their job is no longer secure and they have to dance to the tune of the executive and the legislature. That is the implication and that is what we are standing against. That is what the provision of the law says.

The House of Assembly also said it had not been served the process regarding the suit filed by the chief judge before the National Industrial Court, Ibadan Division, and was not listed as a party in the matter. Do you think that is enough ground to commence a probe of the CJ?

The process that I saw does not include the House of Assembly, but there is no way you will pass that kind of resolution and it won’t affect the salary and other emolument of the CJ. All the same, even the governor may not be aware because the order was received through an ex parte application. Ex parte means an application made without the other party. So, the governor may not be aware. But, since the morning of November 16, the order has been in circulation (on the Internet) and is open to the public. Having been in the public domain, the principal officers of the House of Assembly would have been aware of it. The government would have been aware of it. We always say this in law: when a court order is made, it binds the whole world in respect of the subject matter, unless the order is set aside by that same court or another court of competent jurisdiction.

Some people are saying that the constitution has provided too much shield around judicial officers to protect them from investigation by the legislature, while petitions to the NJC against them may or may never be treated. Don’t you think that constitutional protection should be removed?

No, I don’t feel it is necessary. I agree that in this part of the world, many cases are not going as they are supposed to go, but I don’t agree that the provision of going to the NJC to punish any judicial officer operates as a shield around judges, because daily, aggrieved persons send petitions to the NJC for investigation and we see almost on a periodical basis how these petitions are treated and how judicial officers are punished. Some will be suspended; some will be removed or dismissed. The procedure is still very much functional. The system may be slow but it is working. The NJC, by its procedure, has to take time and give the parties involved a fair hearing before concluding the investigation. People may see it as being slow, but it is working. I am not ruling out the fact that there may be an influence one way or the other, especially when it involves a judicial officer who is also a member of the NJC.

Have you seen the allegations raised against the CJ?

The only ones I have seen are the ones raised by the Judiciary Staff Union of Nigeria regarding the issue of high-handedness, and the issue of converting some of their allowances, which (they) are just coming out to mention. I am just hearing that due to their picketing of courts. There is nothing bad, if you know you have genuine allegations against someone, even if you write to the NJC, you can take the person to the court of public opinion, and the procedure taken by the House of Assembly was also good, except the resolution that the CJ should step aside.

What should they have done at that time?

They should have just passed the resolution that they believe there is a prima facie case on the petition and passed a resolution that the clerk of the House should pass it to the NJC for further investigation and action. So, how can the legislative arm of a state pass a resolution to the NJC and they (the NJC) won’t work on it? They should not have taken a position. They should have passed it to the NJC and followed up on the petition because the thing will still go back to them by constitutional provision after the NJC completes its investigation. Their action is like jumping the gun.

Some of the allegations against the CJ were the claim that instead of paying the proceeds from a case into the government coffers, the money was paid into the coffers of the High Court and diverted thereafter, and that a consultant was brought to handle the e-affidavit without the approval of the state government. Do you think all these are politics?

I don’t want to say anything about that because I am not sure. If I say I see any political undertone, I will be speculating and I don’t want to speculate. The CJ is not a politician. She is not supposed to be a politician. She is supposed to be a judicial officer and by their oath, she is supposed to be unbiased. She is not supposed to have sympathy for any political party. I don’t see why it should be a political issue. A CJ will ordinarily work with as many governments as possible, depending on the years they have in service. The present CJ worked with the administration of (a former governor,) Rauf Aregbesola, (his successor, Adegboyega)  Oyetolaand she is still here. We all know that Oyetola was the Chief of Staff in Aregbesola’s government but thereafter, they parted ways which was a political matter between the two of them.

Many of the things we are raising now started during Aregbesola’s time. So, Oyetola could have used that to probe the CJ, but nothing of such happened. I think those who are raising it probably saw this time as a good time to raise it or probably, this is the time the House of Assembly wants to look into such allegations.

What is the way out of this situation?

As far as we are concerned, by the provision of the law, the ruling of the National Industrial Court has restrained the governor, his agents, and others from interfering with the workings of the CJ. We have also taken into cognisance the position of the state government. I have heard the Commissioner for Information, Oluomo Kolapo Alimi, retract some of their statements, especially when he said that the governor never approved the resolution of the House of Assembly. He said instead of approving it, the governor only said the resolution should be compiled and taken to the NJC. That means that Justice Adepele Ojo is still the CJ of Osun State. We should now be waiting on the NJC. Everything is now before the NJC and a competent body to preside on.