By Bamidele Aturu
A pall of darkness has suddenly descended on the judiciary in Nigeria. Its genesis is the brouhaha surrounding the appointment of a substantive Chief Judge for Rivers State. The institutions and persons charged by the Constitution with roles to play in the appointment of a Chief Judge are at daggers drawn. The National Judicial Council (NJC) is certainly facing the first major challenge to its legitimacy as the Government of Rivers State insists that the appointment of Honourable Mr Justice Peter Agumagu as the Chief Judge of the State after confirmation by the State House of Assembly without any input from the NJC is valid.
The NJC has reacted by suspending Honourable Mr Justice Peter Agumagu and making it clear that it would not recognize him as the Chief Judge of Rivers State. He has been further directed to respond to a query which seeks to punish him for violating his judicial oath. The learned Justice has approached a Federal High Court challenging NJC’s decision to suspend him and praying the court to restrain members of an investigation panel set up to investigate the allegations against him from taking any further steps in respect of his case until the determination of the suit he filed. It has become necessary to examine the relevant sections of the Constitution objectively in order to chart a way out of the seeming boundless confusion that may consume the judiciary.
Brief Relevant Facts
The crisis began with the appointment of Justice Agumagu as the Acting Chief Judge of Rivers State. One Boma Goodhead and three others acting on behalf of Kengena Unity Forum challenged the appointment at the Federal High Court presided over by Honourable Justice Lambo Akanbi. The learned trial judge held that Justice Agumagu was not qualified to be appointed as the Acting Chief Judge of Rivers State not being a State High Court Judge at the time of the appointment as required by section 271(4) of the Constitution of the Federal Republic of Nigeria, 1999. Subsequently, the Governor of Rivers State and others filed another suit before the same court and judge. The second suit would seem to question the power of the NJC to force a recommendation on the State Government. The learned trial judge was reported to have held as follows:
“With greatest respect to the National Judicial Council, who is my employer, I cannot allow the argument of the defence counsel, that the governor must accept the recommendation of the NJC.
“The body that is most suitable to make recommendation of a nominee of a chief judge of the state is the state Judicial Service Commission (JSC), because they have local knowledge of the most suitable candidate, than the National Judicial Council.”
“What the Cconstitution recommends is 10 years of legal practice and we are in a dynamic world. And so, the issue of most senior judge can no longer be the only criteria of appointing someone to such an important and exalted position.”
It was apparently based on the second decision that the Governor of Rivers State sent the name of Justice Agumagu to the Rivers State House of Assembly for confirmation. After confirmation, the Governor then made the appointment. It may also be pointed out that the person that the NJC recommended to the Government of Rivers State for appointment is Justice Daisy Okocha who is incontestably the most senior High Court judge in Rivers State at the moment.
While the first decision of the learned Justice Akanbi cannot be faulted as it was soundly based on the provision of section 271(4) of the Constitution, his second decision cannot wholly be defended. The learned trial judge is right to have held that the Government of Rivers State need not accept the recommendation of the NJC. He is, however, in my view wrong to have suggested that the recommendation of the NJC as to who can be appointed as the Chief Judge of a State can be sidestepped in favour of the recommendation of the State Judicial Service Commission. The law does not support his conclusion.
We shall justify our position by referring to the relevant provisions of the Constitution on appointment of a substantive Chief Judge of a State are Section 271(1) of the Constitution, item 21(c) of Part I to the Third Schedule of the Constitution and item 6(a) of Part II to the Third Schedule of the Constitution. The said provisions respectively go thus:
271(1) ‘The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to the confirmation of the appointment by the House of Assembly of the State.’
21(c ). ‘The National Judicial Council shall have power to recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission persons for appointment to the offices of the Chief Judges of the States…’
6(a)(i) The Commission (State Judicial Service Commission) shall have power to advise the National Judicial Council on suitable persons for nomination to the office of the Chief Judge of the State’
It is clear from a reading of these provisions that the State Judicial Service Commission has no power to make recommendation of a nominee for the office of the Chief Judge of a State. Section 271(1) and item 21(c) of the Third Schedule is clear and unambiguous that it is the NJC that has the power to recommend a person for appointment. The function of the State Judicial Service Commission with respect to the appointment of a Chief Judge begins and ends with advising the NJC. The NJC may choose to accept or reject the advice. The learned trial judge was engaging in law-making when he said that “The body that is most suitable to make recommendation of a nominee of a chief judge of the state is the state Judicial Service Commission (JSC), because they have local knowledge of the most suitable candidate, than the National Judicial Council’. There was no warrant for that decision.
It is also clear from the wording of section 271(1) of the Constitution that it is the Governor of a State that ultimately appoints a Chief Judge. However, his or her power to appoint a Chief Judge is not at large. The appointment must be predicated on the occurrence of other events, namely: a. recommendation of the National Judicial Council and b. confirmation of the appointment by the House of Assembly. The law in Nigeria is clear that when a procedure has been stipulated in a statute for doing a thing, failure to comply with the procedure is a nullity. See the case of Abubakar v Nasamu (No. 2) (2012) 17 NWLR 523 at 577 where the Supreme Court emphatically held as follows:
‘Where a statute has prescribed the mode of performing an act, only that mode of performing the act competently is contemplated otherwise the act will be a nullity’.
Consequently, the Governor of Rivers State cannot validly, in my view, appoint a Chief Judge for the State without the recommendation of the NJC. This conclusion is fortified by the provision of item 6(a)(i) of Part II to the Third Schedule which confers an advisory role on the State Judicial Service Commission. Of course these provisions are capable of creating crisis situations such as we now face. But until the lawmakers amend them no one has the right or power to jettison them.
The wisdom of the lawmakers may be that they do not consider it desirable that one single authority should be responsible for the appointment of the Chief Judge of a State, hence the need to involve the House of Assembly, the NJC, the Governor and even the State Judicial Service Commission in an advisory capacity. If this wisdom is unassailable, and there is a lot that commends it, in our riotous and lawless system, then the parties must bend over backwards to agree on the nomination of a candidate. The State Judicial Service Commission and the Governor may have to keep sending different names to the NJC until that body agrees to recommend a candidate. In other words, the Governor of Rivers State erred in appointing a Chief Judge that was not recommended by the NJC.
There is yet another error, more frightening than the one committed by the Rivers State Governor. The NJC, an eminent body of learned Justices and legal practitioners, which is a party in the case leading to the erroneous decision of the learned trial judge rather than appealing against the decision which seems to make light of its constitutional power to recommend a candidate for appointment as Chief Judge of a State wielded the big stick by suspending the appointed Chief Judge and issuing him with a query to explain why he should not be disciplined.
Words cannot be sufficient to criticize the decision of the NJC. Indeed, I can think of no graver abuse of power and trivialization of the rule of law than what the NJC has done. Its decision is unacceptable and is an affront on decent administration of justice. Unless it quickly withdraws its decisions Nigerians would be right to conclude that the NJC is after all not different from the typical politician in its lack of respect for due process and display of feudalistic traits. One gets the frightening feeling that the NJC does not recognize that it is a mere executive body created under section 153 of the Constitution and as such has a duty under section 287(3) of the Constitution not only to obey the decision of Akanbi, J but to enforce that decision until set aside. To seek to undermine that decision is to say the least unbecoming of the eminence of that body.
One hopes that the NJC is not relying on the oft-quoted and often misapplied obiter of Lord Denning in Mcfoy v UAC (1961) 3 All ER 1169 at 1172 to conclude that it can simply disregard the decision of Akanbi, J. Lord Denning had declared in that case thus:
‘if an act is void, then it is in law a nullity. It is not only bad but incurably bad. There is no need for an order of court to set it aside. It is automatically null and void without more ado, though it is sometimes more convenient to have the court declare it to be so.’
In the first place, it is our submission that in the present circumstance it is convenient, reasonable and expected that the NJC will proceed to an appellate court to set aside the decision of Akanbi, J. If a body charged with supervising the judiciary can pick and choose which decision of court is a nullity without an order of court to that effect, then we are in for a reign of anarchy in administration of justice as every person will take a cue from it. The onus is on the NJC to show how it will be inconvenient for it to appeal a decision in which it was a party.
Second, Professor Itse Sagay, SAN has in his recent book, ‘The Enforcement of Electoral Laws and Case Law of 2007 Election Petition Judgments’ inimitably called attention to the erroneous citation and misuse of the obiter of Lord Denning in the aforementioned case.
According to him: ‘In reality, there is hardly a situation in which an act is automatically void. It only becomes void when a court says so. For example in Nigeria, until the courts declare an election a nullity, there is a presumption of law that it is valid. There is no election that is “automatically void without more ado”. So too are marriages. A couple cannot declare their marriage null and void until it is nullified by a law court. This equally applies to other types of contracts. Clearly, Lord Denning overstated the case.’
Unfortunately also for the NJC, section 158 of the Constitution which provides that the Council ‘shall not be subject to the direction or control of any other authority or person’ in exercising its power to make appointments or to exercise disciplinary control over persons is irrelevant to the question whether or not the Council should appeal an unfavourable decision in a case in which it was a party. At any rate, it is not the NJC that makes the appointment of a Chief Judge of a State, it is the Governor as section 271(1) of the Constitution puts beyond any doubt. In the same vein, apart from suspension for a reasonable period, the power of the NJC to exercise disciplinary control over judicial officers is limited. The NJC cannot remove a judicial officer but can only recommend his or her removal pursuant to paragraph 21(d) of the Third Schedule to the Constitution. Section 158 should therefore not be given any wider application than the context of the Constitution as a whole permits. That section can only be fully applicable to the power of the Council to ‘appoint, dismiss and exercise disciplinary control over staff of the Council’ as provided for in paragraph 21(g) of the Third Schedule to the Constitution. Whatever the case, the authority and person referred to in section 158 cannot be courts of law but other public officials and bodies if violence is not to be done to the express provision of section 6(6)(b) of the Constitution which deals the extent and scope of judicial powers.
The sub-section again for the avoidance of doubts states:
‘The judicial powers vested in accordance with the foregoing provisions of this section-shall extend to all matters between persons or between governments or authority and to any person in Nigeria and to all actions and proceedings related thereto for the determination of any question as to civil rights and obligations of that persons’
Certainly it would be an unreasonable submission to suggest that the civil right and obligation of a judicial officer sanctioned or about to be sanctioned by the NJC is not in issue.
The Governor of Rivers State seems to have based his appointment of Justice Agumagu as the Chief Judge of Rivers State on the erroneous decision of Akanbi, J that the recommendation of the State Judicial Service Commission is what is required. Even if it is argued that Akanbi, J merely granted declaratory reliefs, it is clear that being a statement of the correct legal position until set aside the Governor can claim to be acting on the declaratory decision unless it is being erroneously suggested that declaratory judgments are absolutely useless which is not the case. In the circumstance, the option open to the NJC is to appeal that decision or accept it. If it chooses to appeal, it can ask the Court of Appeal for a mandatory order nullifying the appointment of Justice Agumagu as the Chief Judge of Rivers State. If the Court of Appeal makes the order, the Governor of Rivers State can decide to activate or reactivate the process of resending the name of Justice Agumagu to the NJC for its recommendation or he may decide to send another name to the NJC. Whatever option it chooses, the NJC should withdraw the query it issued to Justice Agumagu as it is uncalled for and constitutes nothing but unthinkable intimidation from a body of eminent judges and lawyers. Many of us want to continue to see the NJC sanitize the judiciary. But it can only do so if it is credible and does not trample on the rule of law.