Last week, the National Judicial Council (NJC) announced the purported suspension of the Chief Judge of Rivers State, Justice Peter Agumagu from office. Before the suspension the NJC had tried the judge and indicted him for accepting the post of Chief Judge in clear violation of section 171 of the Constitution. As an after-thought the Chief Judge was given four days to explain to the NJC why he should not be recommended for removal from office. To the extent that the judge was not accorded any form of fair hearing as stipulated by section 36 of the Constitution his suspension cannot be justified in law.
Not too long ago Justice Ayo Isa Salami, the immediate past President of the Court of Appeal was given fair hearing by the NJC before he was placed on suspension. Ditto for Justice Mohammed Talba of the High Court of the Federal Capital Territory. Even the Justice of the Court of Appeal and the two High Court judges who were recently indicted and warned by the NJC were given fair hearing. It is therefore inexplicable why the NJC decided to suspend Justice Agumagu before asking him to explain the allegations of judicial misconduct levelled against him by a member of the NJC.
In exercise of its executive powers, the NJC proceeded to set aside the appointment of the Chief Judge on the ground that it did not comply with Section 171 of the Constitution. Curiously, the NJC practically overturned the judgment of the Federal High Court on which the appointment was predicated. The NJC ought to be berated for treating the judgment of the Federal High Court with brazen contempt. Until that verdict is vacated by a higher court, all authorities and persons in the country are under compulsion to comply with it. When the NJC lost the legal battle at the Federal High Court, it took the right decision by challenging the judgment on appeal. It is therefore subversive of the rule of law on the part of the NJC to resort to administrative tactics to set aside a valid and subsisting judgment of a competent court. It is an invitation to anarchy.
In his judgment delivered on March 18th 2014, Justice Lambo Akanbi specifically held that the interpretation of section 171 of the constitution by the NJC was patently erroneous and that the governor is not a robot to accept the recommendation of the NJC hook, line and sinker. In saying that the president of the Rivers State Customary Court of Appeal was eminently qualified to be appointed the Chief Judge, the Federal High Court, the Federal High Court accused the NJC of inconsistency having previously recommended judges of similar courts for appointment as Chief Judges on two occasions in the recent past. (See the unreported case of Governor, Rivers State v. National Judicial Commission & Anor; Suit No: FHC/PH.CS/421/2013).
The judgment may be wrong but that remains the law until it is set aside. In the circumstance, the incendiary statement issued by the NJC after its emergency meeting last week in which the body purported to have set aside the judgment of the Federal High Court is the height of contempt.
As the NJC is not an appointing authority, it lacks the power to suspend the Chief Judge of Rivers State or any judge in Nigeria for that matter. Section 11 (1) of the Interpretation Act provides that where an enactment confers a power to appoint a person to an office or to exercise any functions, whether for a specified period or not, the power includes the power to remove or suspend him. In the case of Justice Salami, the NJC illegally suspended him from office. President Goodluck Jonathan approved the suspension and appointed an acting President for the Court. However, when the NJC decided to recommend his reinstatement, it was rejected by the appointing authority.
In like manner, Governor Rotimi Amaechi of Rivers State has rejected the purported suspension of the Chief Judge by the NJC. Since the Chief Judge was not appointed by the NJC, the latter lacks the vires to suspend him. No doubt, the NJC is empowered to recommend the appointment, suspension or removal of a judge to the appointing authorities. As a recommending body, the NJC should desist from placing judges on suspension without the approval of the appointing authorities i.e. the President and State Governors.
It would be recalled that under a military dictatorship, the Supreme Court held in the famous case of the Military governor of Lagos State v Chief Odumegwu Ojukwu (1986) 2 NWLR (Pt 18) 621 that in a country where the rule of law operates, the government cannot be allowed to resort to self-help by engaging in executive lawlessness. The immutable principle of law was reiterated in the case of Attorney-General of Lagos State v Attorney-General of the Federation (2005) 2 WRN 1, where the apex court strongly condemned the seizure of the funds belonging to the Lagos State Local Governments on the directive of President Olusegun Obasanjo. Speaking for his colleagues, Tobi JSC (as he then was) said inter alia:
“If the Federal Government felt aggrieved by Lagos State creating more local governments, the best solution is to seek redress in a court of law, without resorting to self-help. (In a society where the rule of law prevails, self-help is not available to the executive or any arm of government. In view of the fact that such a conduct could breed anarchy and totalitarianism, and since anarchy and totalitarianism are antitheses to democracy, courts operating the rule of law, the life-blood of democracy, are under a constitutional duty to stand against such action.
The courts are available to accommodate all sorts of grievances that are justiciable in law and section 6 of the Constitution gives the courts power to adjudicate on matters between two or more competing parties. In our democracy all the governments of this country as well as organizations and individuals must kowtow to the due process of the law and this they can vindicate by resorting to the courts for redress in the event of any grievance”.
In conclusion, since the suspension of the Rivers State Chief Judge is illegal and unconstitutional, the NJC should reverse it without any delay. It should also withdraw the query issued to the Chief Judge since his appointment was predicated on a judgment of the Federal High Court. Instead of exposing the judiciary to unwarranted ridicule the NJC is advised to pursue the appeal which it has filed against the judgment of the Federal High Court on the crisis. The NJC under the able and incorruptible leadership of the Chief Justice of Nigeria, the Honourable Justice Aloma Maryam Mukhtar, has done excellently well in repositioning the judiciary. As a body constituted majorly by the cream of the legal profession, the NJC should not allow itself to be diverted from the ongoing progressive sanitization of the judiciary.
Mr. FALANA, SAN, is a Constitutional Lawyer and his article was called on THISDAY.
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