A Federal High Court in Abuja has dismissed a suit filed by seeking an order setting aside the National Judicial Council (NJC)’s report and its recommendations directing the Kogi Chief Judge, Justice Josiah Majebi, to amend the seniority order for three aggrieved judges.
The suit was filed by Justice Folajobi Ajayi of the Kogi judiciary.
Justice Inyang Ekwo, in a judgment , said having found that the NJC acted within the constitutional powers given to it by Paragraph 21 (i) of Part 1 of the 3rd Schedule to the 1999 Constitution (as amended) to make policy in its administration of the judiciary, Ajayi’s case lacked nerit.
“I find that the plaintiff in this case has nether established lack of reasonableness nor that the 1st defendant (NJC) acted utra vires its power by any shred of evidence.
“In cases of this nature, it is settled law that a plaintiff must succeed on the strength of his own case and not on the weakness or absence of the defendant’s case.
“The onus of proof does not shift to a defendant until it has been satisfied by a plaintiff with reliable and credible evidence,” he said.
Justice Ekwo further held that the NJC had constitutional power and authority to make policy on order of seniority of judicial officers as it did in this case based on the year of Call to Bar of the judicial officers.
“I also find that the NJC (1st defendant) acted reasonably when making the decisions in Exhibits DW1-A1 — A41,” he said.
According to him, I further find that the policy of the NJC is in accord with the principles of equity, fairness and good faith capable of preserving order, respect, fraternity and peace within the judiciary and among judicial officers.
“This action by the plaintiff is tantamount to asking this court to upturn the policy of the NJC merely for his personal gain or favour.
“It is an egocentric adventure which must be stopped in the face of the reasonableness of the act of the NJC and I so do,” he said
Justice Ajayi, a judge in Kogi, had, in the suit marked: FHC/ABJ/CS/106/2023, sued the NJC, Justice Moses Gwatana, Kogi Chief Judge and the Attorney-General and Commissioner of Justice of the state as 1st to 4th defendants respectively.
Ajayi sought a declaration that the proceedings and report containing the recommendations of the Fact-Finding Panel or Investigation Committee of the NJC which report was accepted by the council at its December 2022 meeting together with all the deliberations of the full council of the judicial body.
It was recommended that the 3rd defendant (CJ) amends or adjusts the seniority order of the concerned judges from Justices Ajayi – Year of Call 1992; Salisu Umar – Year of Call 1991, Moses M. Gwatana — Year of Call 1988, Moses M. Gwatana – Year of Call 1988.
“A declaration that the purported downgrading of the plaintiff by way of re-arrangement of the hierarchy or pecking order of the judges of the High Court of Kogi State on the recommendation of the 1st defendant in as much as it was based on the proceedings of the fact-finding or investigation oanel of the 1st defendant and approved by the full council of the 1st defendant is unconstitutional, null and void on the following grounds:
“Noncompliance with and/or breach or ultra vires the provisions of Sections 153, 158(1) and items 20, 21 and 22 of Part I to the (3) Third Schedule of the 1999 Constitution (as amended), among others.”
Ajayi, therefore, sought an order restraining the state’s chief judge from giving effect to the recommendation and directives contained a a letter dated Jan. 11 by the NJC, among other reliefs.
The plaintiff averred that he relied on the instrument of his appointment dated Dec 13, 2010.
He said he took the oath of allegiance and judicial oath as a judge of the Kogi State High Court on Dec. 22, 2010 when he was appointed and sworn in as a judge.
He said Justice Gwatana, the 2nd defendant, was the author of the petition against him that led to instituting the case.
Ajayi said Justice Gwatana, Justice Salisu Umar and him were all judges of high court in the state, who on the recommendations of the NJC to the state’s governor, were appointed as judges respectively on Dec. 13 , 2010 and were sworn-in serially on the Dec. 22, 2010.
“The pecking order among the trio was as follows: Honourable Justice Folajobi Ajayi —Year of Call 1992; Honorable Justice Salisu Umar – Year of Call 1991 and Honorable Justice Moses M. Gwatana – Year of Call 1988.
“The Oath of Allegiance and Judicial Oaths were not taken concurrently or simultaneously by the trio but were taken in the serial order stated above,” he said.
Ajayi stated that apart from being sworn-in before Gwatana, the presentation to the Public or Inaugural Sitting of the court held immediately after the swearing-in ceremony and all official rolls, listings and ceremonies of the court had always accorded him precedence over Gwatana since then.
According to him, neither Gwatana nor Umar protested or complained because they were aware of the justification in the state of affairs that led to the plaintiff being sworn-in as a judge of the High Court by the then Governor of Kogi State before them.
He said Gwatana did not complain till after more than 10 years when he wrote a petition to the Kogi State Judicial Service Commission (KJSC) on Oct. 22, 2021 through the retired chief judge of Kogi State.
He said he responded to the petition and the KJSC by a letter dated March 7, 2022, resolved that it had no power under any law to re-arrange the pecking order of judges which had subsisted for over ten years as requested by Gwatana.
Explaining the facts that led to his being sworn-in before Gwatana and Umar even though they were called to bar before him, Ajayi said that his recommendation for appointment as a judge preceded that of the duo.
He said that in April 2010, the list which contained only his name for consideration for appointment as a judge, was deferred because the returns of the other serving judges were adjudged by NJC as being ‘unsatisfactory.’
“So consideration of new judicial appointment(s) were kept in the cooler until there was improvement in the performance of the serving judges.
“By December 2010, when the issue came up for re-evaluation and reconsideration of the appointments, the plaintiff (Ajayi), whose appointment was on hold was first approved before those of the 2nd defendant (Gwatana) and Justice Umar whose fresh presentations were considered,” Ajayi said.
But in his defence, Gwatana said that Ajayi knew that the order of swearing-in was not correct as he was the junior at the bar.
According to him, despite this, the plaintiff (Ajayi) accepted such unethical act mala fide with the intention of benefitting from this professional misconduct.
Justice Ekwo, in the judgment, held that the decision of the NJC on the ranking of seniority of judges appointed at the same time was nothing new but had existed since 2004 which was prior to the date Ajayi, Gwatana and Umar sworn-in.
