LANRE ADEWOLE and YEJIDE GBENGA-OGUNDARE consider the unlikely judicial journey of the beleaguered Osun CJ and how it is likely to end.
On Wednesday, October 17, 2012, the National Judicial Council (NJC) threw out a three-person list submitted by the administration of then-Osun State governor, Mr. Rauf Aregbesola, for the appointment of a new chief judge for the state, as then-incumbent, now-late Justice Olaniyi Ojo, bowed out on October 8, 2012.
The list contained the names of then-most senior judge in the state and now-incumbent Chief Judge, Justice Adebola Adepele Ojo, then-head of Osun State Customary Court of Appeal, now-late Justice Gloria Oladoke and then-serving high court judge in Lagos and now a Court of Appeal justice, Olubunmi Oyewole.
The Council’s grouse with the list was the jettisoning of the seniority consideration by the Aregbesola’s administration which backed Oyewole, originally from Ila in Osun State.
In months-long dueling, Aregbesola’s administration and the Council under the first female Chief Justice of Nigeria, Justice Mariam Aloma Mukhtar, went toe-to-toe, but NJC stood with the “unwanted” Ojo all the way, culminating in her taking the number one seat in substantive capacity, on June 17, 2013, almost eight months after it had become vacant, as the state’s first female CJ.
She was first shooed-in, in acting capacity, on March 5, 2013.
Ten years and counting on the job, Ojo is unwanted again, by the incumbent Osun State governor, Mr. Jackson Ademola Adeleke and the move to push her out, has seen the Council, again, go head-to-head, with the state government.
Adeleke’s administration has largely adduced gross misconduct as the underlying reason, for seeking Ojo’s premature exit. While the Council hasn’t ruled Ojo guilty or otherwise, the bone of contention has remained the constitutional power each of the institutions can wield over her, and it appears that the Adeleke administration has succumbed to the National Judicial Council, on who has the power, to sanction the CJ for alleged professional misconduct and how, to get it done.
The clearest indication that the state government may have lost the First Round of the battle is the apparent refusal of the most senior judge in the state after the CJ, Justice Olayinka David Afolabi to take up the acting appointment offered him, following the controversial booting of his boss.
The botched regime change in Osun judiciary last week, coincided with a retreat for judges at the National Judicial Institute in Abuja, where the Chief Justice of Nigeria, Justice Olwakayode Ariwoola, reportedly dared any ranking judge from the Osun division, to accept the governor’s acting offer.
Adeleke’s administration also appears to have conceded superiority to the Council on the issues of investigation and sanction, revealing its communication of the ongoing process in the state, to the federal body, though the state House of Assembly is still carrying on with its stated oversight function of investigating allegations of misconduct and highhandedness, leveled against the CJ.
Agumagu as a lesson to Afolabi
As the Adeleke/Ojo’s rift deepens, the only possible administrative route for the governor to win legally and constitutionally is making his case against the CJ, through the NJC, despite the initial missteps that suggested malice and political interference.
Multiple superior courts’ pronouncements on past contestations between governors and chief judges, have established the process of excusing errant CJs, though the state government has forced the Council, to take side with the embattled CJ, due to her controversial suspension.
The “sacking” from office last week and the refusal of Afolabi to take over, suggest that the state judiciary is currently without a functional head, though Ojo remains the CJ in NJC’s book, with a senior operative revealing to The Jury on Monday that the Council would continue paying her salary, even while supposedly on suspension, referencing the precedent of a former Chief Judge of Kwara, Justice Raliat Elelu-Habeeb who was suspended by then-governor, Mr. Bukola Saraki.
“For more than two years of the so-called suspension, Council kept paying her salary, until her reinstatement. She was just enjoying herself, traveling around the world, because for the Council, she remained the CJ” the source volunteered.
Saraki sacked Elelu on May 4, 2009. The Supreme Court reinstated her on February 17, 2012.
The Jury was also informed that Justice Afolabi would have suffered the same fate as a former President of the Customary Court of Appeal in Rivers State, Justice Peter Agumagu who accepted acting CJ appointment from Rotimi Amaechi as Rivers governor, in circumstances, similar to what is playing out in Osun.
On March 27, 2014, NJC, under Aloma, came thudding on Agumagu, for defying the Council’s stance on Justice Daisy Okocha, as its choice for the state’s CJ. Agumagu’s career nosedived from the suspension point and despite his many legal battles against NJC, he left the Bench, unceremoniously.
How cookies crumbled
Amid the back and forth between Adeleke and Ojo, who are reportedly related in Ede, their birth-place, a Senior Advocate of Nigeria, from the same town, Chief Yomi Aliyu, has revealed to The Jury what he believed was the genesis of the crisis between the duo.
According to the Silk, “The primary issue between the Chief Judge and the Governor is the breakdown of trust between them caused by ambitious judges who strongly believe that the Chief Judge should not spend all her term which remains five years.
“After the Chief Judge had pledged her loyalty to the Governor and prayed that God should spare her life to swear him in as Governorin 2026, a senior Judge went back to the Governor that the Chief Judge held a meeting with APC and vowed that she would make the Governor, who is her cousin and whose father succeeded Governor’s father as the Balogun of Edeland, weep by ensuring that the Governor loses 2026 election!
“This was corroborated by two other judges who wanted the CJ out of the way. One was a classmate whilst the other has a corruption charge before the NJC which he alleged that the CJ did not assist him in burying it!”
The Jury recalls that Ojo was gearing for retirement last month, before Tinubu gifted judges at all level, extra five years, to be at par with the Supreme Court and the Court of Appeal’s 70 years’ retirement age.
The first bill, signed into law by the incumbent president, was earlier rejected by then-incumbent and predecessor, President Muhammadu Buhari, on the advice of his Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN.
In a memo dated May 23, 2023 and addressed to the office of the Chief of Staff to the President, Malami said the bill (then) appeared to be far-reaching, unduly wide, ambitious and made no justification for the extension of retirement age and benefits for judges.
He further argued that the bill, if approved, may lead to further agitation for the extension of the retirement age of justices of the Supreme Court and the Court of Appeal.
What the law says
Barrister Foluso Olapo takes the constitutional route to understanding the crisis.
He noted to The Jury, “It is tantamount to executive rascality for a governor to remove, or even attempt to remove, investigate, punish or suspend the Chief Judge or a Judge of a State. It is not only ridiculous, it is an assault on the Constitution of the Federal Republic of Nigeria, the principle of separation of powers and the rule of law.
“It is a settled law that a Chief Judge of a State cannot be removed under any guise without recourse to or involvement of the National Judicial Council (NJC) which the Constitution saddled with the responsibility of recommending for appointment, exercise disciplinary control, including the removal of judicial officers (See Part 1(I) to the Third Schedule of the 1999 Constitution (as amended), see also the Supreme Court decision in the case of Elelu-Habeeb v. AG Federation & Ors (2012).
“Indeed, according to Section 292 of the 1999 Constitution (as amended) the Chief Judge of a State cannot be removed except on such recommendation by the NJC. So where a state governor suspects the Chief Judge of abusing his office, or of corrupt practices, the best, rational and legal thing to do, is to refer same to the NJC.
“It is pertinent to note that the judiciary is a distinct arm of government and NOT an appendage of the executive. Therefore, the judiciary is not and cannot be subject to the dictates and antics of the executive or even the legislature as the case may be” he offered.
Ojo was appointed a judge of the High Court on December 21, 2000 and if she keeps her seat till 2028 when she would be 70 years, her Bench career would be spanning 28 years, out of which 15, would be as the CJ.
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