Written by Akanimo Sampson
* Says Suspension Is Illegal, Unconstitutional
Another constitutional crisis appears to be playing out in the Rivers State axis of Nigeria, on the controversial issue of the Chief Judge of the oil and gas state.Rivers State Government on Wednesday, formally rejected the suspension of their Chief Judge, Justice P.N.C Agumagu by the National Judicial Council (NJC). Last week, Agumagu was suspended as a judicial officer by the NJC and was given four days to show cause why he should not be removed.
Government in an online statement to AkanimoReports further described the suspension as ”illegal and unconstitutional”. As a result, Port Harcourt is maintaining that Agumagu remains the substantive Chief Judge of the state.Government position was made known by the state Attorney General and Commissioner for Justice Worgu Boms, while speaking to newsmen in Government House, Port Harcourt, Wednesday.
According to Boms, “the position of NJC which is very unfortunate, gives equally unfortunate and misleading impression to the public that the appointment of the Hon Justice PNC Agumagu as Chief Judge of Rivers State, occurred in nibubus (ie from the skies) and with no contribution of the NJC to it or that there is no history behind it. The Hon Justice PNC Agumagu, the NJC wants the world to believe, just woke up, walked to the State House and got appointed and sworn in as the Chief Judge. This impression is misleading, self-serving and diversionary.”
“It is important to state from the outset that the NJC has always preferred the doctrine of the Most Senior Judge of the High Court, in the appointment of the Chief Judge of Rivers State and in particular, the Hon Justice D.W. Okocha, as its candidate for the position.
In its single-minded pursuit of the actualisation of this doctrine and preference, it enunciated further the doctrine that only a Judge of the State High Court is qualified for consideration for the office and that the Hon Justice Agumagu, then, President of the State’s Customary Court of Appeal, could not be allowed to cross over to become the State Chief Judge.”
“For the records, Justice Agumagu is senior in Biology, at the Bar and on the Bench to Justice Okocha. Following Advice from the State Judicial Service Commission to the NJC listing Justice Agumagu as N0 1 and Justice Okocha N0 2 as persons for possible consideration for recommendation for the appointment, to the substantive position of Chief Judge, the NJC wrote to His Excellency, the Governor of the state, that of the two candidates recommended to it by the State Judicial Service Commission, that even though Justice Agumagu is first on the list, that Agumagu was being rejected because His Lordship was not the most Senior Judge of the High Court and could not cross over from the Customary Court of Appeal to become the Chief Judge. Only Justice D.W Okocha could thus be qualified for appointment based on the NJC’s twin doctrine of Seniority and Non Crossing over.
Needless to say, these Twin Qualification of Most Senior Judge and Non Crossing Over are creations, not of the Constitution that prescribes only 10 years’ Post Call as qualification to the office of the Chief Judge, but of the NJC, which sadly, has now transmogrified from being a recommending Body to a law making Body.”
“We restate here that what is happening in Rivers State with respect to filling the vacancy in the position of Chief Judge of the state, is not peculiar to Rivers State as other states have passed and some are still passing through the process and in none of these did the NJC, as it is doing now in Rivers State, write to their Judges to intimidate them on the matter and to fetter their conscience.”
“If the appointment of Chief Judge of the state were to begin and end with the NJC, then perhaps, there would be no problems with its preferred candidate. Unfortunately, the Constitution provides that four Institutions – the State Judicial Service Commission, the NJC, the Governor and the State House of Assembly – must all participate for a candidate to become the Chief Judge. In the NJC’s view, however, its contribution to the process must be the only valid and final one, otherwise, a Judge must lose his appointment as not even a Court pronouncement on the matter will it respect. This is the heart of the seemingly intractable succession crises to the office of the Chief Judge, not only in Rivers State, but also in other states where the issue is yet to be resolved.”
Boms went further to state that no Law vests the NJC with the power to declare acts unconstitutional and that what the council did to Agumagu is an usurpation of judicial powers and functions.
“The NJC or indeed, any council for that matter, has no powers under any Law to declare the action of the state Governor, in this case, the action of the Governor of Rivers State in the appointment of the Chief Judge of the State, unconstitutional. Only a Court vested with the requisite jurisdiction can validly do so and the NJC, no matter how eminent its members are, is not a Court of any cadre in Nigeria. It is like any of the several Commissions established under the same Section of the 1999 Constitution of the Federal Republic of Nigeria”, Boms stated.
“The NJC does not have the power to appoint or dismiss a Judge. It cannot even suspend a Judge under the colour of discipline. It can only recommend such to either the Governor in the case of State Judges, or to the President, in the case of Federal Judges.
This is the Law and the NJC has also interpreted its disciplinary action of suspension along the line of recommendation to the appropriate authorities when, for example, it found it necessary to discipline the then President of the Court of Appeal, it was by way of recommendation to the President who approved the recommendation and thus that Justice was suspended. When, subsequently it saw the need to recall the suspended Justice, it did not do so directly, it similarly recommended to the President to effect the recall.”
“There are other examples including the recommendation for the suspension of the Judge who tried the EFFC case of pension embezzlement whose suspension was recommended only after he had been tried and found wanting.
There has been no instance in the past where the NJC, without hearing from a Judge, or even after so hearing, goes directly to suspend a Judge. This precedent is dangerous as it means that any Judge of any Court can, without being heard, for any reason, just stop functioning as a Judge in the name of suspension by the NJC. This is dangerous.”
Boms stated that the Rivers State Government wrote NJC to inform the council that its twin doctrines for rejecting Justice Agumagu were unknown to the Law in the appointment of Chief Judge under the Constitution. The State government further rejected the rejection of Justice Agumagu on the ground that the basis for his rejection cannot be founded in Law since only 10 years post call is the minimum constitutional requirement. And then rejected the recommendation of Justice Okocha.
Boms disclosed that when NJC stuck to its gun on the recommendation of Justice Okocha, the Rivers State Government and the State Judicial Commission had to file a suit before the Federal High Court sitting in Port Harcourt. The NJC(1st Defendant) entered appearance and Justice Okocha applied to join and was joined as the 2nd Defendant.
It will be recalled that in its ruling of March 19, the Federal High Court agreed with the State government and the State Judicial Commission and ruled in their favour. Amongst others, the Court ruled that:
“I find no reason from the letter written by the NJC to disqualify Agumagu who, in my opinion is qualified to be recommended to the Governor for appointment as Chief Judge for the State. In the absence of any such reason, Agumagu remains the candidate to be recommended and forwarded to the Governor for appointment as Chief Judge of Rivers State.”
“It is ordered that the 1st Defendant (the NJC) acting by itself or through its council members, servants, agents and privies are hereby restrained from carrying into effect the decision and recommendation in the said letter of 22ndJuly 2013 or acting upon it in any way or manner detrimental to the interest of the Plaintiffs(Rivers State Government and the State Judicial Commission) or acting in a way and manner suggesting an insistence on the candidate(Justice Okocha) it recommended by its letter of 22nd July, 2013.”
The Rivers State Attorney General said that based on this Judgment, the NJC has no further role to play in the matter in the face of the restraining Order and the holding that Justice Agumagu is the most qualified candidate and who ought to be recommended by the NJC. Based on this premise, Governor Rotimi Amaechi of Rivers State, appointed Agumagu and the State House of Assembly screened him and he was successfully sworn in as the 7thChief Judge of the State.
“This is the process that produced the Hon. Justice Agumagu as the Chief Judge. It must be stated that the NJC has not filed or taken any steps to file any appeal against the Judgement whereas, its Co-Defendant and preferred candidate, Justice Okocha immediately appealed against the judgement and has even invited the parties for settlement of records of the appeal. The matter, therefore, was made subjudice at the time the NJC purported to suspend the Chief Judge”, Boms declared.
“By wielding the Big Stick against an innocent Judge and purporting to use administrative measures to truncate the outcome and fruit of a judicial process to which it submitted and participated actively in and without appealing thereafter, the NJC is using its power inappropriately and is unwittingly contributing, in an eloquent form, to the ridiculing of the court system which it should be promoting and respecting.”
“The Rivers State Government rejects the NJC’s unconstitutional and contemptuous stance on this matter and states categorically that only a Court of Competent Jurisdiction can declare its actions and activities unconstitutional and certainly not a Council, a Committee, a Commission etc, howsoever described when such Bodies, no matter their nomenclature and the eminence of their membership, are subject to the Law of the land and the Court.”
“Finally, we urge the NJC to disallow the personal sentiments and entrenched interests of some of its members in the Rivers Chief Judge matter, and treat the Rivers State Judiciary and its Judges as it treats other states’ and federal judiciaries and their Judges and as provided for under the Constitution, as the issue is not a family affair or succession to a family stool in which case members of a particular lineage are the only persons qualified for consideration for succession.
This is public office with constitutionally provided statements on qualification for succession and provides no room for any one or persons to use their membership of the exalted Body to lend a hand to a relation or a friend outside the clear Provisions of the Constitution as now confirmed by the Court”, Boms concluded.