The Suspension Of The Chief Judge Of Rivers State: Matters Arising By Ogbu, Blessing Ekpere
Yesterday, the 27th day of March, 2014, the Punch Newspapers, in its online edition, announced the immediate suspension of the Chief Judge of Rivers State, Honourable Justice P.N.C. Agumagu by the National Judicial Council (NJC). The objective of this short piece is to situate that decision within the appropriate constitutional and jurisprudential context.
The terminus a quo for this analysis is to examine the role of the NJC vis-à-vis the powers of the Governor of a State and the House of Assembly of the State or the President and the Senate as the case may be in the appointment and discipline of judicial officers in the light of constitutional provisions. By virtue of sections 231(1) (2), 238 (1) (2), 250(1) (2), 256(1) (2), 261(1) (2) and 266(1) (2) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the President appoints Judicial Officers of Federal Courts on the recommendation of the National Judicial Council who act on the names submitted to it by the Federal Judicial Service Commission. In the case of the heads of these Courts, the President appoints them on the recommendations of the NJC but subject to confirmation by the Senate. The Federal Courts referred to above are the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, the Customary Court of Appeal of the Federal Capital Territory and the Sharia Court of Appeal of the Federal Capital Territory. On the other hand, the procedure for dismissal and otherwise discipline of the above named Judicial Officers is provided for in section 292.
Since the present focus is on the suspension of the Chief Judge of Rivers State by the NJC and the prospect of imminent dismissal as encased in the query issued to him, directing him to explain within four days why he should not be dismissed from service for breach of his oath of office as a Judicial Officer, sections 271, 276 and 281 of the Constitution of the Federal Republic of Nigeria 1999 as amended are relevant. Particularly, section 271(1) (2) is pertinent here. It provides thus:
“The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.
The appointment of a person to the Office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council.”
The above provisions must be read in conjunction with the provisions of paragraph 6(a)(i)(ii)iii)(iv)(v)(vi) of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended which stipulates that the State Judicial Service Commission must advise the NJC on who to appoint as Judicial Officials for the State Courts. On the other hand, with regards to the removal of Judicial Officers of State High Courts, section 292(1) (a) (ii) (b) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides that
“A Judicial Officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances-
In the case of-
Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State,
Praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or body) or for misconduct or contravention of the Code of Conduct.
(b) in any case, other than those to which paragraph (a) of this section applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the Judicial Officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.”
The appointive and disciplinary powers of the NJC are elaborated in the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended. Paragraph 21 (a) (i) (ii) (c) of the Third Schedule to the Constitution of the Federal Republic of Nigeria, 1999 as amended expatiates on the mode of exercise of the appointive powers of the NJC. On the other hand, the combined effect of paragraphs 6(b), 21(c) (d) of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended and sections 231, 238, 250, 256, 261, 266, 271, 276 and 281 of the Constitution is that the appointive and the disciplinary powers of the NJC are exercisable jointly with the President or the Governor as the case may be on the advice of the Federal Judicial Service Commission or the State Judicial Service Commission as the case may be. Thus, the NJC cannot unilaterally remove a Judicial Officer from office except with the approval of the President or the Governor of the State as the case may be. In the case of the heads of the Courts, there is the additional requirement of legislative participation in the removal.
The overall consequence is that even where the Chief Judge fails to satisfy the NJC, and the NJC proceeds to recommend that he be dismissed from his office or appointment, the Governor of Rivers State and the House of Assembly of Rivers by a two-thirds majority will be required to ratify such recommendation. And being a recommendation, the Governor is not under any constitutional obligation to act on it. It is important not to lose sight of the fact that the operative word in the entire appointive and disciplinary provisions as it touches on the role of the NJC is ‘recommendation’. Now, a recommendation is a mere expression of opinion: it does not place the other party in a legal position where the recommendation becomes binding on them. In other words, the other party is at liberty to either accept or to reject the said recommendation without incurring any form of legal liability whatsoever and without violating any extant law. And, indeed, there is a historical precedent for Nigerians to follow. It will be recalled that at the height of the Justice Isa Ayo Salami-NJC-President Jonathan faceoff, when eventually the NJC recommended that the embattled erstwhile President of the Court of Appeal be recalled, President Jonathan did not act on the recommendation. Yet, the heavens did not fall.
It must be pointed here that while there is no yardstick to determine the nature or the degree of egregiousness of judicial misconduct which will divest a Judicial Officer of his toga as such, it is accepted that a violation of the provisions of the Code of Conduct for Judicial Officers and a breach of the Oath of Office for Judicial Officers are enough grounds for the removal of such Judicial Officers from office. It is therefore a source of concern for the NJC to suspend the Honorable Chief Judge of Rivers State and to issue him with a query on why he should not be dismissed on the ground that he had violated his Oath of Office as a Judicial Officer without specifying how he had violated his oath of office as a Judicial Officer. The perception of the public will remain, until the contrary is proved, that the Honourable Chief Judge is been punished for accepting Governor Amaechi’s offer of appointment to serve as the Chief Judge of Rivers State.
The worst that can emerge from this development is a stalemate with the Governor having a constitutional ace up his sleeve. Governor Amaechi may decide to cut NJC’s nose in order to spite its face by invoking the provisions of section 271(4) of the Constitution. The section empowers him to appoint an Acting Chief Judge for Rivers State and he can exercise that power without any input from the NJC. The Governor can exercise this power till he leaves office on the 29th May, 2015 by appointing a new Acting Chief Judge every three months, and there is nothing the NJC can do about it as the Governor will still be acting within the purview of his constitutional powers. And the subsisting Judgment of the Honourable Mr. Justice Lambo Akanbi delivered on the 18th of March, 2014 to the effect that Governor Amaechi is not bound to act on the recommendation of the NJC as he is not, in the words of the Honourable Judge, ‘a rubber-stamp’ is another twist to the entire drama. Since the Judgment is still valid and subsisting, the NJC should not be seen to be acting at variance with the decision of a competent Court of law established under the law. It is expected that the NJC should have proceeded to appeal against that Judgment if it is dissatisfied with it, instead of taking the step it had taken.
With this sad news coming exactly one month after two Judges were compulsorily retired and three others warned for varying degrees of misconduct – a term that is as nebulous as it lends itself to mischief – this judicial self-cleansing eventually could be inimical to the independence of the Judiciary and the Rule of Law, which are vital ingredients of a civil and vibrant constitutional democracy. God forbid that the NJC, in its efforts to cleanse the Judiciary, be seen by the public as a modern day sword of Damocles hanging over the heads of Judicial Officers in the discharge of their duties.
Disturbingly, Governor Amaechi may yet again emerge out of this jurisprudential impasse smelling like a bouquet of roses – exactly how he had smelt each time he engaged President Jonathan and his array of Federal forces in political dogfights for the soul of Rivers State. The reason is obvious. As pointed out above, there is a subsisting and valid Judgment of the Federal High Court delivered by the Honourable Mr. Justice Akanbi to the effect that the Governor of a State, and that should also include the President of the Federal of Nigeria in respect of Federal Courts, is not under an obligation to appoint whoever that the NJC recommends. Our jurisprudence is trite, and, in fact, our case law is replete with a plethora of judicial authorities that a Judgment of a Court, no matter how wrong it is, and in spite of the fact that it may have been delivered per in curiam, remains valid, binding and enforceable until it is set aside on appeal.
Paragraph 20 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 as amended gives an insight into the eminent personalities that made up the NJC. The NJC is made up of the Chief Justice of Nigeria who is the Chairman, the next most senior Justice of the Supreme Court, the President of the Court of Appeal, five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal, the Chief Judge of the Federal High Court, five Chief Judges of States to be appointed by the Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years, one Grand Kadi to be appointed by the Chief Justice of Nigeria from among Grand Kadis of the Sharia Courts of Appeal to serve in rotation for two years, one President of the Customary Court of Appeal to be appointed by the Chief Justice of Nigeria from among the Presidents of the Customary Court of Appeal to serve in rotation for two years, five members of the Nigeria Bar Association who have been qualified to practice for a period of not less than fifteen years at least one of whom shall be a Senior Advocate of Nigeria, appointed by the Chief Justice of Nigeria on the recommendation of the National Executive Committee of the Nigerian Bar Association to serve for two years and subject to re-appointment and two persons not being legal practitioners, who in the opinion of the Chief Justice of Nigeria, are of unquestionable integrity.
These learned and eminent personalities who have so distinguished themselves in their different fields of endeavours should be able to save the NJC from itself. The first step in this regard, it is humbly submitted, is for the NJC to revisit the valid and subsisting Judgment of the Honourable Mr. Justice Akanbi of the Federal High Court and consider its options thereto. The options, of course, will necessarily include appealing against the Judgment so that the Court of Appeal and, if need be, the Supreme Court can make a definitive pronouncement on the matter. The NJC is not an appellate Court. It is not even a Court of law. At best, it is an administrative body with quasi-judicial functions. It should apply wisdom to its self-cleansing efforts. The NJC should reverse itself on this matter. It is not healthy for the public perception of a judicial system that is just recovering from the battering it received in the Justice Isa Ayo Salami’s imbroglio.
~Ogbu Blessing Ekpere Esq., a Legal Practitioner, writes from Abuja
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