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Worgu Boms writes on the controversy surrounding the recent appointment of an acting Chief judge for Rivers State by Governor Rotimi Amaechi.
It is important, and it should be encouraged, that citizens take interest in their government and its activities, which such calls symbolise. However, it is more important that expression of such interests should be done with accurate knowledge of the facts and a fair and sincere expression of one’s view of the law on the matter, when the issue at stake borders on law, so as to assist the citizenry follow more accurately on the issue. The last incumbent of the office of Chief Judge of Rivers State, retired on August 19, 2013. The very next day, i.e. August 20, the Rivers State governor appointed and swore-in Hon. Justice P.N.C. Agumagu, as the Acting Chief Judge of the State. This was pursuant to Sec 271 (4) of the Constitution of the Federal Republic of Nigeria which states that the Most Senior Judge of the High Court be so sworn-in.
In choosing, appointing and swearing in Hon. Justice P.N.C. Agumagu, then President of the State’s Customary Court of Appeal, the State Government explained that the Hon Justice Agumagu was sworn in as a High Court Judge and seconded to establish the State’s Customary Court of Appeal and is now the Most Senior Judge in the State Judiciary and that according to the State’s Customary Court of Appeal Law, the President of that Court takes precedence immediately after the Chief Judge of the State and sits in the state Judicial Service Commission second only to the Chief Judge and that the provision of the constitution in that regard must be read together with the State’s Customary Court Law as stated. As expected, there were other views opposed to this: that the Customary Court Law provision that the President of that court comes after the Chief Judge is only as to protocol and that at any event, according to the opponents of his appointment, that the Customary Court, although part of the Judiciary of the state, is not part of the High Court. None disputed the fact that Hon Justice Agumagu was sworn in as a High Court Judge long before any of the Judges now serving in the state judiciary.
Whatever different or differing views, the appointment had been made; the Hon. Justice Agumagu entered his appointed office of Acting Chief Judge and commenced the performance of his duties. There was no challenge to the appointment up-till date. In law, that appointment remains valid until set aside, not by a differing view, no matter how eminent the holder of the view, but by a competent Court. For the avoidance of doubt, the said section states as follows:
‘’ If the office of the Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office or until the person holding the office has resumed those functions, the Governor shall appoint the most senior Judge of the High Court to perform those functions.’’ An unbiased reading of the section will reveal that the requirement of appointment of the ‘Most Senior’ Judge is only at the first instance of appointment. Subsequent appointments need not follow any order of seniority.
This has always been so. For example, when the position of President of the Court of Appeal became vacant and pending the appointment of the substantive successor could be named, after the appointment of the most senior in the system, ie the Hon Justice Dalhatu Adamu, the subsequent appointment, in acting capacity, did not follow seniority and that is how the present incumbent, who is not the most senior in the system is there now as the Acting President and it is valid.
Not long after the appointment of the Hon Justice Agumagu as Acting Chief Judge, an interested Senior Advocate who also sits in the National Judicial Council (NJC) as a member and who is opposed to the initial appointment and who prefers a particular candidate, ( I am not opposed to those who are opposed to the initial appointment or the interpretation of who is the most senior Judge. I am only opposed to their insistence that their view is the only one the Governor must act on) had hinted that any Judge of the High Court who accepted any further appointment of acting Chief Judge would be sanctioned by the NJC. At that time, the NJC had not had its quarterly meeting then to be held in December.
True to that promise, the NJC met and thereafter, wrote to all Judges of the High Court in Rivers State that should they accept the acting appointment, the acceptance would be considered an act of misconduct. Further, in that letter to the Judges, the NJC stated that the Governor should appoint a particular Judge who, in its own Judgment, is the Most Senor Judge, as the Acting Chief Judge.
Clearly, the NJC is dictating to the governor, the particular candidate, to be appointed as acting Chief Judge of the State. One wonders why the NJC did not warn Justices of the Court of Appeal not to accept the appointment of Acting President of that Court after the tenure of Hon Justice Dalhatu Adamu expired and why they did not and have not still appointed the most senior Justice of that Court to the position of Acting President.
Does NJC Have Any Power In The Appointment Of An Acting Chief Judge of a State?
The answer is to be found in that same section 271(4) which, for purpose of ease of understanding, I reproduce again and it provides:
‘’ If the office of the Chief Judge of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office or until the person holding the office has resumed those functions, the Governor shall appoint the most senior Judge of the High Court to perform those functions.’’
What can be seen, clearly, is that the Governor needs no recommendation from anyone as to whom to appoint as Acting Chief Judge, nor approval of anyone to validate whomsoever he has appointed. The guide provided by the Constitution to the Governor is that contained in the phrase, ‘’ The most Senior Judge of the High Court’’ which the Governor has interpreted and acted on and which, as stated, remains valid and subsisting not having been set aside by a Court of Competent Jurisdiction.
It is only and only when an appointed person’s tenure has lapsed and the Governor wishes a renewal, that the NJC becomes constitutionally relevant in this regard as it is its Constitutional Powers to approve the renewal. If there is no issue of renewal of the appointment of an Acting Chief Judge, then there is no role for the NJC to play. The relevant Section, therefore, which the Publicists did not bother to refer its listeners and readers to (because they have ruled the first appointment invalid which appointment remains valid because they are not a Court of Law as only a Court of Law can validly so rule) is Subsection (5) of the selfsame Section 271 which states thus:
‘’Except on the recommendation of the National Judicial Council an appointment pursuant to Subsection (4) of this Section shall cease to have effect after expiration of three months from the date of such appointment and the Governor shall not reappoint a person whose appointment has lapsed’’.
It has been our law – and it has not changed – that Bodies established by law (including the NJC) must act within the boundaries established by their enabling statutes.
Again, we ask, where is the role of the NJC in the exercise of a Governor’s power conferred on him by the constitution to appoint an acting Chief Judge for a State?
Those contributing and issuing Press Releases and granting interviews on this matter have not even bothered to provide this answer to their audience as to how the issue concerns the NJC or where the NJC derives its power to dabble into it as to insist on the appointment of a particular Judge and to issue threat letters to Judges as aforesaid.
The simple reason, therefore, for the void in the office of acting Chief Judge of Rivers State is not, as those interested publicists have put it, that the Governor has failed or refused to fill the vacancy, but simply that the NJC, for whatever reason, wrote to all our Judges not to accept the appointment except the Governor appoints a particular Judge. This is curious!
Although chaired by the Chief Justice and having as its members, eminent Judges and Justices, the NJC, still, is not a Court. Not only that, it is, itself, subject to the Constitution.
It, therefore, lacks powers to declare a Governor’s appointment unconstitutional as it purported to do; neither is there any authority in it conferred by the Constitution, to threaten Judges not to accept such appointment from the State Chief Executive.
If the Governor acted outside the constitutional powers granted him, it is not the NJC that has power to so declare, but a competent court.
The Governor, not interested in setting up any Judge against the NJC, decided not to make the appointment until the issue is cleared, as appointing the candidate the NJC insisted should be appointed, will mean that the NJC, not the Governor, is the ‘appointing Authority’, a Constitutional description which refers only to the Governor and not the NJC. That will amount to an abdication of a Constitutional duty on the part of the Governor.
For the avoidance of doubt, it is only in the appointment of a substantive Chief Judge that the Governor is to await the recommendation of the NJC before His Excellency makes such substantive appointment subject to approval of the state House of Assembly. There should be no conflation of the two situations of appointment of acting Chief Judge and the appointment of substantive Chief Judge. It is the misunderstanding of the role of the NJC and the role of the Governor in these two separate situations, or, putting it more appropriately, the thinking that the role of the NJC is the same in both situations, that has led, with respect, to the comedy of errors by those who reasoned that the Governor is in error. His Excellency is not.
The previous appointment having not been voided by any court, the Governor clearly has fulfilled the constitutional requirement of appointing the Most Senior Judge and all arguments on that spent-issue must be regarded for what they are: academic.