Fawei & Partners-at-Law

AN APPRAISAL OF THE CONSTITUTIONAL ROLE OF THE NATIONAL JUDICIAL COUNCIL IN THE APPOINTMENT OF A STATE’S CHIEF JUDGE

Author: Dr Fawei Perekedou James

ABSTRACT

The appointment of judges or chief judges of the high court of a State has always been a constitutional function of the Governor of a State. This constitutional function is usually exercised in line with certain procedural provisions which must be observed. While the main issue concerns the proper laid down procedure, this paper shall address the contention of the body with final authority regarding the appointment of a Chief Judge. This paper asserts its forceful position on the proper interpretation of the constitutional role of the National Judicial Council on the appointment of the Chief Judge of a State that its recommendation is not final nor a mandatory imposition on the Governor of a State for an appointment.

INTRODUCTION

In recent times, the seemingly clear and unambiguous constitutional provisions of the Nigerian 1999 Constitution on the appointment of a State’s Chief Judge[1] have raised a lot of dust deserving of legal and scholarly comments by constitutional lawyers and scholars. Though very clear, the said provisions have constituted a storm of conflict brewing in its application.

A ready case study is the recent saga in Rivers State, where the Governor, Rotimi Amaechi, appointed the Hon. Justice Peter Agumagu, the President of the Customary Court of Appeal of Rivers State, as the substantive Chief Judge of the State. This was done in defiance of the recommendation of Hon. Justice Daisy Okocha by the National Judicial Council on the premise that Peter Agumagu was ‘the most senior judge of the State’ at the time. To further compound this situation, seeking a solution is the confirmation of the appointment by the House of Assembly and the decision of the Hon. Justice Lambo Akanbi of the Federal High Court, Port Harcourt division, holding that the Governor is not bound to appoint whoever the National Judicial Council recommends. Pursuant to the aforesaid, the court further nullified the recommendation of Justice Daisy Okocha by the National Judicial Council. The said decision is yet to be upturned on appeal, hence remains the operational law. With the subsistence of the said judgment of the Federal High Court, Daisy Okocha cannot be appointed as substantive Chief Judge of Rivers State without a fresh recommendation by the National Judicial Council, as it is expected soon upon her appointment as the Acting Chief Judge of Rivers State by Governor Wike.[2]

The state of events, as transpired in Rivers State, has not only raised vital questions for consideration on the application of the relevant sections of the Constitution of Nigeria 1999[3] but also on the constitutional role of the National Judicial Council[4], with regard to the appointment of a State’s Chief Judge. It is at this turn of events that it behoves us to have a second and analytical look at the appointment of a State’s Chief Judge. This paper shall briefly look at the generally adopted methods of judicial appointments, and subsequently narrow it to the method known to Nigerian law and practice.

JUDICIAL APPOINTMENTS

Systems of judicial appointment vary from one legal system to another, the world over. Particularly as they are all aimed at achieving the twin goals of judicial independence and accountability.[5] The United States Institute of Peace Report of January 2009 submits that systems of judicial appointments come in four basic configurations[6], which are:

  1. appointment by political institutions, which are either representative or co-operative. This is where appointments are done by the executive or legislature alone;[7]
  2. appointment by the judiciary itself. This involves the appointment of judges by the Chief Justice or a council constituted by judges only;[8]
  3. appointment by Judicial Councils, which may be wholly or partly constituted by judges or non-judges;[9]
  4. selection through an electoral process.[10]

Narrowing our focus to the method of judicial appointments in Nigeria, one can safely conclude that Nigeria practices a hybrid method that covers (a) to (c) above. This can best be appreciated by reference to the constitutional provisions with regard to the appointment of the Chief Judge of a State in Nigeria. Very instructive and apt is the provision of section 271 (1) of the 1999 Constitution, which states 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 confirmation of the appointment by the House of Assembly of the State.

From the foregoing provisions, it is obvious that judicial appointments in Nigeria are subject to a procedure that cuts across principally two arms of government. What seems to be the crux of this paper is whether the said procedure contained in the excerpt above is mandatorily cumulative in the application or is mutually exclusive to the extent of the exercise of discretion. To be able to properly examine the said issue, the appointment procedure and powers of the affected agencies or bodies shall be divided into three stages, which are:

  1. Recommendation procedure and powers of the National Judicial Council
  2. Appointment powers of the Governor of a State; and
  3. Approval procedure and powers of the State House of Assembly.

This paper shall now briefly address the above-itemized procedures for appointing the Chief Judge of a State.

THE POWER OF THE NATIONAL JUDICIAL COUNCIL TO MAKE RECOMMENDATION

The National Judicial Council is one of the Federal Executive bodies created by virtue of section 153 of the 1999 Constitution of the Federal Republic of Nigeria. In order to insulate the judiciary from the whims and caprices of the executive, hence guaranteeing the independence of this arm of government, which is a sine qua non for any democratic government, the National Judicial Council was established as an executive body to be constituted majorly and headed by judicial officers. Constitutionally, beginning in 1999, the National Judicial Council is the body saddled with the ultimate responsibility of screening and recommending persons to the chief executives (the President/Governor of a State) for appointment to the higher courts ranging from the various High Courts of States to the Supreme Court. The Council was created and vested with enormous powers and functions, which the erstwhile Advisory Judicial Committee (AJC)[11] it replaced did not have. In line with the NJC’s guidelines on the appointment of judicial officers, only suitable candidates of impeccable character with sound legal background are recommended for appointment to judicial offices[12].

The National Judicial Council, though a Federal Executive Body, exercises the above power of recommendation on the appointment of a Chief Judge of a State. It is noteworthy that this body does not commence the process, as the State Judicial Service Commission screens and forwards a list of qualified persons to the Council for recommendation. Below is the procedure as stated in Prof. Azinge’s article[13]:

  1. Notification of vacancy of the office of the Chief Judge of the State;
  2. The State Judicial Service Commission (SJC)[14] thus, prompted to recommend a replacement, initiates the process and forwards nominees to the National Judicial Council (NJC);
  3. National Judicial Council screens nominees and forwards its recommendation to the Governor of State;
  4. The Governor of the State appoints one amongst the persons recommended by the National Judicial Council as Chief Judge of the State;
  5. The Governor of the State, in turn, submits it to the State House of Assembly for confirmation after appointment.

The National Judicial Council, upon receipt of the nominations from the State Judicial Service Commission, will subject the nominees to several screening tests before sending same to the Governor for appointment. The issue of concern has not been with the role of the State Judicial Service Commission but the recommendation to be made to the Governor of the State for appointment. Some scholars and commentators hold tenaciously to the view that once the National Judicial Council recommends a person to the governor for appointment as Chief Judge, that person invariably must be the Chief Judge. This view has been expressed by some scholars thus:

…it is not actually the executive that appoints judicial personnel; the role of the executive is merely perfunctory, rubber stamping that which had been done by the NJC. In other words, it is argued that it is actually the NJC that does the appointment of judges since there hardly is any case where the NJC recommends a candidate to the relevant Executive (President or Governor as the case may be) and the appointing executive fails and/or neglects to appoint the person recommended; further proponents for maintenance of the status quo posit that once the NJC recommends, the Legislature automatically clears the candidate.[15]

The above view seems to be correct and appears to be in line with the philosophy of insulating the judiciary from the whims of the executive and legislature but stands against the idea of judicial accountability to the people[16], thereby constituting the NJC into a body with finality in the exercise of its recommendation powers. This was the point of divergence in the recent chief judge appointment saga in Rivers State that raised a lot of dust in legal and political circles, as the Governor, having received the list of single recommendations from the National Judicial Council, ignored it and appointed another person not even nominated by the Council. While holders and followers of the above view saw the act of the Governor as an aberration from the law, norms, and practices of judicial appointments, others do not share in that view as they argue that a recommendation does not interpretively mean mandatory or compulsory.

Proponents and holders of the other view are of the opinion that recommendation though a stronger form of advice, can be taken or rejected, as same cannot bind the person it is offered to. Dr. Hari Chand, in his book[17] puts this issue in the right perspective when he said:

….Advice is more or less a guiding factor which may be brushed aside, whereas recommendation shows a stronger degree of bindingness, though not binding absolutely…. In India, during the seventies Mrs. Ghandi ignored the advice of the retiring Chief Justice of India in the appointment of the Chief Justice of India. The Constitution of India requires consultation with the outgoing Chief Justice of India in appointing the new Chief Justice. It was explained by the then Law Minister that provision of the constitution does not mean that the advice of the Chief Justice is binding. If the Chief Justice is consulted, the provision of the Constitution is complied with, though the advice may not be acted upon.

It is submitted that the National Judicial Council will also wield so much constitutional powers if its recommendations must be accepted for appointment without any further screening process or reservation, thereby making the exercise of appointment a mere formality. This will now take us to address the next issue of the power of appointment by the State Governor, where this paper shall also conclusively address the issue of the ‘bindingness’ of the recommendations of the National Judicial Council on the appointment of a State Chief Judge.

JUDICIAL APPOINTMENT POWERS OF THE GOVERNOR OF A STATE

The power to appoint a State’s Chief Judge and other judicial officers is vested in the Governor of that State. The relevant section vesting this power of judicial appointment on the Governor of a State in section 271 (1) of the 1999 Constitution of the Federal Republic of Nigeria, which states 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 confirmation of the appointment by the House of Assembly of the State.[18]

The above as has been posited, appears to mean that the Governor of a State shall appoint a person as Chief Judge of a State, acting on his discretion.[19] As Oluyede rightly espoused[20], this position is in agreement with the clear provisions of the 1979 Constitution of Nigeria. The power of the Governor to appoint a Chief Judge discretionally is not also exercisable unguidedly, as the discretion is restrictively exercisable on the recommendations of the National Judicial Council. The Governor cannot go outside the recommendation of the Council. He may refuse to appoint a person recommended by the Council, but he cannot appoint someone else not recommended or considered at all.[21] This being a scale for measuring the exercise of judicial appointment power of the Governor of Rivers State in the recent appointment of Chief Judge saga, this paper strongly asserts that there is nothing constitutionally wrong in the act of the Governor in refusing to be bound by the NJC’s recommendation[22]. What this paper frowns at as being utterly unconstitutional is the unguided exercise of the discretional powers of the Governor in appointing a person as Chief Judge when such a person was not in the list of persons recommended by the Council, and neither is the person the most senior judge of the State’s High Court.[23]

Examining the meaning of the word ‘recommendation’ is pertinent to further drive home the position held above. Literally, the word means an ‘official suggestion about the best thing to do[24]’. This meaning does not express any form of compulsion but, as it implies, is only ‘suggestive’, which may or may not be accepted. A legal pundit and Senior Advocate of Nigeria, Sebastine Tar Hon, posits that the word ‘recommendation’, as used in section 271, means advice as opposed to a directive or an act of compulsion[25]. The judicial definition and interpretation given to the word is as contained in the case of Tangale Traditional Council v Fawu[26], where the court said thus:

Recommendation is defined as the act of one person giving to another a favourable account of the character, responsibility, or skill of a third. In other words, recommendation refers to an advisory action rather than one having any binding effect.

When applied to the study beforehand, this definition of’ recommendation’ will assist us in reaching a firm interpretation and application of the relevant sections on the appointment of a State’s Chief Judge. Going by that definition, the drafters of the Constitution, in their wisdom, give the Governor some leverage to decline or refuse the appointment of a particular person recommended by the National Judicial Council for good cause or reason. By this, the appointment of the Chief Judge of a State is not made effective and final by the recommendation of the National Judicial Council, thereby not making the role of the Governor in the process purely a nominal one of being the instrument by which the decision of the Council is formally carried into effect.

APPROVAL POWERS OF THE STATE HOUSE OF ASSEMBLY

After the nomination of a person for the office of a Chief Judge of a State by the State Judicial Service Commission, the recommendation by the National Judicial Council, and subsequent appointment by the Governor of the State, the confirmation of such appointment by the House of Assembly perfects the appointment. Failure to adhere to the above constitutional procedure will deny the said person appointed from resuming duties as the substantive Chief Judge of that State. The wording of section 271 (1) of the 1999 Constitution is again very clear as it provides 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 confirmation of the appointment by the House of Assembly of the State. (Emphasis supplied by me)

This principle and practice of the people or their representatives being involved in appointing certain judicial officers is borne out of contemporary global trends of judicial accountability while being independent. This is the idea that the judiciary maintains some level of responsiveness to society[27]. As part of the need to enthrone judicial accountability, the drafters of the Constitution of Nigeria, in their wisdom, introduced the element of confirmation by the State House of Assembly as the final step to be taken in concluding the process of bringing into office a substantive Chief Judge of the State.

To best understand the power and position of the State House of Assembly in cementing the exercise of power by the National Judicial Council and the Governor with regard to the appointment of a Chief Judge of a State is the careful study of the wording of the relevant section reproduced above[28]. It is clear from the first word of the underlined part that all the exercise of appointment powers of the Governor holds no water as to whether such a person can be so referred and assume the office of the Chief Judge of a State until the State House of Assembly stamps in confirmation of such appointment. This is because the phrase ‘subject to’ is an expression of limitation, which implies that what is subject to a provision has the provision prevailing force over it.[29] The Supreme Court, in the case of Aqua Ltd v Ondo State Sports Council[30] said thus:

Section 221 (1) of the 1979 Constitution is prefaced by the phrase ‘subject to the provisions of s. 220 of this constitution. According to the canon of construction, this means that the subsection should be applied subject to whatever is stipulated in section 220.

The State House of Assembly, in its exercise of the confirmation powers, has the discretion to confirm or not and is not merely vested with rubber stamp powers to confirm whoever the Governor appoints. This constitutional power of confirmation bestowed on the State House of Assembly also extends to investigating and questioning the breach or irregularity of any process in the exercise of the recommendation and appointment powers of the National Judicial Council and the Governor of the State. Hence, their powers are subject to that of the people in their representative capacity. However, the discretional powers of the State House of Assembly are also exercisable within the guiding provisions of law and acceptable practice. Some of such guiding factors in exercising the power of confirmation by the State House of Assembly include:

  1. The constitutional requirement of ten years post call experience in Nigeria;[31]
  2. Appointment according to the diversity of the people within the area of authority and sense of belonging in the State;[32]
  3. Ethical conducts, behaviour, and antecedents of the person to be so appointed into the office of the Chief Judge of the State;
  4. Whether the NJC and the Governor observed all necessities in the process before recommending and appointing the person a Chief Judge of the State;
  5. Other requirements (procedural or not) that are specified from time to time by law or convention.

By the above, it is obvious that the House of Assembly of a State may guide itself with these mentioned requirements and others as to their satisfaction in deciding whether to confirm or not to confirm a person screened by the National Judicial Council and appointed by the Governor of the State as a substantive Chief Judge of the State. It is unarguably settled that where a person appointed to occupy the office of the Chief Judge of a State has failed to satisfy the basic requirements of being made one, even if such a person scales through all other stages of the process, the House of Assembly is entitled to refuse confirmation of his appointment.

This does not, however, totally absolve the possible intrusion of political elements into the process. The intrusion of political elements appears to be the case of Kano State a few years back and the ongoing Rivers State saga. In the case of the former, the Kano State House of Assembly, having been given the list of nominees recommended, sat on it as the Assembly also had its interest, while some other contending political forces also had their interests to protect. The Governor ended up appointing the candidate recommended to him by the NJC, who was also the most senior judge at the time, but was not confirmed by the State House of Assembly.[33] While in the case of the latter, the State House of Assembly, not minding the constitutional breaches of the Governor in the process of appointment, compounded further the problem of the State by confirming the appointment of Justice Peter Agumagu as Chief Judge of the State from the office of President of the State Customary Court of Appeal, being the most senior Judge of the State at the time.[34]

COMPARATIVE ANALYSIS OF THE APPOINTMENT OF A CHIEF JUDGE

In this comparative analysis, this paper shall first examine comparatively the provision of section 271(1) and other subsections of the same section, particularly the provisions regarding the appointment of a person as a judge of the State High Court. Notably, the same section provides the procedure for appointing a Chief Judge, acting Chief Judge, and a Judge of the State High Court.

  1. The Constitution of Nigeria 1999 empowers the Governor of a State to appoint an acting Chief Judge of a State whenever the office of the Chief Judge of a State becomes vacant or the person holding same cannot perform the office functions. Section 271 (4) of the Constitution of Nigeria is clear and provides that:

271(4) If the office of 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 of the State shall appoint the most senior Judge of the High Court to perform those functions.

Unlike the provisions for the appointment of a Chief Judge and a Judge[35] of the State High Court, the Governor of a State is empowered to appoint a person as acting Chief Judge of a State without the recommendation by the National Judicial Council, nor confirmation by the State House of Assembly. This power is exercisable solely by the Governor without recourse to anyone. However, the power is checked by the same constitutional provision, which states two conditions that must be satisfied, failure of which the exercise of the power will become ultra vires the Governor and unconstitutional. The conditions are that:

  1. The person to be appointed as acting Chief Judge must be the most senior Judge; and
  2. The person must be a Judge of the High Court of the State.

Here the Governor has no choice and has to appoint the most senior judge of the High court of the State whether he likes the person or not[36]. Hence, the appointment of Hon. Justice Peter Agumagu (the President of the Customary Court of Appeal, Rivers State) as the acting Chief judge by the Governor of the State is wrong and in grave violation of the Constitution of the Federal Republic of Nigeria 1999, he not being a judge of the State High Court.[37] However, the recent turn of events by which Justice Daisy Okocha is appointed as Acting Chief Judge of Rivers State by the Governor comes within the contemplation of section 271(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). This is because Daisy Okocha till her appointment was the most senior judge of the Rivers State High Court.

A joint reading of subsections (4) and (5) further implies that until the procedure provided for in subsection (1) of the above section is duly followed and a substantive Chief Judge appointed, the person appointed by the Governor shall remain and act as Chief Judge for a three months tenure, after which the person so acting cannot be subsequently appointed for another term.

  • While the procedure for the appointment of a Chief Judge is tripartite in the process as it involves the National Judicial Council, the Governor, and subsequently the State House of Assembly, that of a Judge is not and is less cumbersome. Section 271(2) of the Constitution of the Federal Republic of Nigeria provides for the appointment of a person as a judge of the State High Court. The section reads thus:

271(2) 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.

In this case, the power to appoint a person to the office of a Judge of the High Court is vested in the Governor, who can only exercise the same on the recommendation of the National Judicial Council. It may appear very simple and similar to the procedure of appointment of a Chief Judge save for the confirmation by the State House of Assembly, but this paper shall reveal that the exercise of the power of appointment differs greatly from that of the Chief Judge of the State.

The distinction here lies in the difference between the nature of power exercisable by the Governor in the case of the Chief Judge and that of a Judge of the High Court. As already espoused above, in the appointment of a Chief Judge, the appointment power of the Governor is discretional, while in the case of a Judge of the High Court, there is no discretion. The phrase ‘…acting on the recommendation of the National Judicial Council’ implies that the Governor can only appoint the person or from amongst the persons recommended by the National Judicial Council. The phrase as argued by Professor Nwabueze[38], has a definite legal connotation as implying that the advice is binding and must be complied with. In essence, the appointment of a Judge of the State High Court is made effective by the National Judicial Council, and the role of the Governor is just to bring into effect the decision of the council.

Having appraised and examined comparatively the provisions of the 1999 Constitution of the Federal Republic of Nigeria alongside the ongoing judicial appointment saga in Rivers State and Kano State, this paper shall now briefly consider two other foreign jurisdictions, India and the United States of America.

The United States of America

Appointment of judicial officers in the United States takes different forms depending on the provisions of the Constitution and other relevant laws of particular States[39]. However, there are basically two methods of appointment of judicial officers in the United States of America, which are:

  1. By election; and
  2. By Judicial Council appointments.

Though it appears that more of the States adopt one form of the electoral system or the other in securing judicial offices, particularly the higher bench, this paper shall be more concerned and will examine a selection of the States that adopt the second mode of appointment of judicial officers.

There are a wide variety of Judicial Councils in the United States of America, in which the composition and competencies reflect the concern about the judiciary in a specific context, balancing between demands for accountability and independence. However, the one adopted by most States is the ‘Merit Commission’[40] and this paper shall use the Arizona model as a point of reference. The American State Merit Commission is a kind of Judicial Council in which the members are mixed and usually comprise of judicial and non-judicial officers[41]. This Commission is established to nominate for appointment and promote judicial officers based on their competence rather than political favouritism.[42]

Unlike the National Judicial Council in Nigeria, the Merit Commission in the United States of America only nominates persons for judicial appointment and does not extend to performance evaluation, promotion, discipline, and appointments[43]. The only reason for the establishment of the Commission is to nominate for appointment to the office of a judge after a thorough screening process, while in Nigeria, the Council evaluates performance, screens candidates for appointment into judicial offices, promotes them, and even nominates persons for appointments.[44]

However, similar to that of Nigeria is the appointment process in which the Merit Commission, just like the National Judicial Council, nominates persons to the Governor of the State to be appointed as judges or Chief Judge as the case may be.[45] The American Merit Commission usually provides a list of three candidates for each vacancy for the State Governor to choose from. This implies that the Governor has the discretion to choose any persons nominated and appoint the same as a judge.[46] This discretional exercise of appointment power of the Governor is similar to that of the appointment of a Chief Judge of a State in Nigeria, though not applicable in the cases of appointment of judges.

The Union of India

In the Union Government of India, the appointment of a Chief Judge or a Judge of a High Court is vested in the Chief Executive, who is expected to act on the advice of the Chief Justice of India[47]. This position is as expressed in Article 124 of the Indian Constitution. As it appears in the clear wordings of the Constitution, the Chief Executive does not have the sole power to appoint without the recommendation of the Chief Justice[48]. Amongst several agitations on the interpretation of the relevant provisions of the Constitution on the proper exercise of the power to appoint judicial officers was the landmark case of S. P. Gupta v Union of India[49]. In that case, the Indian Supreme Court, after examining the issues presented, interpretively vested the ultimate control regarding the appointment of judges with the central government, thereby giving the Executive primacy at the expense of the Judiciary[50]. However, this judgment was not well received by the people, so in Subhash Sharma v Union of India[51], the Supreme Court stated that the appointment of judges is not an executive act but the result of a constitutional process which must be observed in word and in spirit. The court further recommended that a full Supreme Court of India bench reconsider the earlier decision in Gupta’s case.

In a later decision of the full bench of 9 Justices of the Supreme Court in Supreme Court Advocates on Record Association v Union of India[52], by a majority of 7 to 2, overruled its earlier decision. It held that the Chief Executive’s appointment has to be subject to the recommendation by the Chief Justice, whose view has primacy over the Chief Executive. Notable is the additional pronouncement that the Chief Justice’s recommendation has to be a product of consultation with the four most senior Justices, without which such recommendation to the Chief Executive will not be binding on him. From the aforesaid of the Union of India, one can deduce a point of convergence with the Nigerian process. Which is that, the Nigerian Constitution requires as mandatory the recommendations of the National Judicial Council, before the Governor may go ahead to exercise his discretional powers of appointment[53]. Same is the position in India as held in the SCAORA case[54].

RECOMMENDATIONS

As it appears from this study, the sole issue has been with regard to the proper application of the relevant sections on the appointment process of a Chief Judge, as clearly provided for in the Constitution. Having examined the constitutional role of the National Judicial Council of Nigeria in the appointment of a substantive Chief Judge of a State, this paper, at this juncture, takes this bold step to recommend as follows:

  1. The National Judicial Council should clearly be required to recommend for appointment as Chief Judge of a State at every point in time at least three qualified persons amongst whom the Governor may exercise his discretion as literally provided for in the Constitution.
  2. The National Judicial Council should also include the screening and testing such candidates on merit by subjecting them to a written examination which will assist in insulating the political or favouritism elements from the process. This will also, at all points in time, keep aspirants to such positions mentally prepared for the task ahead through research and further studies.
  3. The role of the National Judicial Council in the appointment of judges should be maintained as it helps to checkmate the exercise of judicial appointment powers of the State Governor and State forces. Though, it has been argued that such role of the National Judicial Council undermines the very foundation and essence of the Nigerian federal structure.[55]
  4. Recommendation and appointment of a person to the office of a Chief Judge should not be given a restrictive interpretation as to being applicable to only judges of the State High Court. This is so as there is nothing in section 271 of the 1999 Constitution of the Federal Republic of Nigeria which restricts the appointment to only judges. The undisputed position is that a member of the bar of up to 10 years post call experience in Nigeria can be appointed a Chief Judge. In the same vein, the National Judicial Council can recommend a judge from the Customary Court of Appeal of a State or any other court of a co-ordinate status for appointment as Chief Judge and it will be welcomed.  

CONCLUSION

As it appears in this paper, the much-made noise on the issue of the appointment of the Chief Judge of a State and other judicial officers is one that requires only a proper interpretation and application of the relevant constitutional provisions. In this bid, this paper has done justice in espousing the law as to its supposed interpretation and also briefly looked at the operational position in some advanced democratic jurisdictions, such as the United States of America and the Union of India.

Whereas the appointment of Justice Peter Agumagu as the Acting Chief Judge of the Rivers State Judiciary can arguably be said to be in breach of the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria; the appointment of Justice Daisy Okocha as Acting Chief Judge by the Nyesom Wike’s administration is envisaged in the Constitution[56]. However, since the period within which a person appointed to act as Chief Judge is three months after which the person can no longer be made a substantive Chief Judge, an appointment of Justice Daisy Okocha as the substantive Chief Judge without recommendation from the National Judicial Council will raise further legal issues, having regard to the subsisting judgment of the Federal High Court.

It is now recommended to political stakeholders and the Supreme Court, the judicial policy-making court, to guide itself with the clear wordings of the Constitution of Nigeria in holding a firm position on the proper procedure for appointing judicial officers. This paper does not really find much missing in our Constitution so as to resort to a constitutional change but holds that it is more of interpretive work to put the law and its application straight.

* A private legal practitioner of the Yenagoa Branch of the Nigerian Bar Association and research assistant to the Dean, Faculty of Law, Niger Delta University.

[1] See section 271 of the 1999 Constitution of the Federal Republic of Nigeria.

[2]  See www.thisdaylive.com/articles/crisis-in-the-rivers-state-judiciary/continues/210250. visited on 24th June 2015.

[3]  Ibid.

[4]  This body is established by the provisions of section 153 (i) and its functions and powers are contained in the Third Schedule of the Constitution of Nigeria 1999.

[5]  See United States Institute of Peace, Report on Judicial Appointments and Judicial Independence, Jan. 2009.

[6]  Ibid.

[7]  This is the practice in the United States, Brazil, Russia, Germany etc

[8]  Examples of countries with this method of judicial appointments include India (except for Higher judiciary appointments), Japan etc

[9]  See the judicial appointment systems of Iraq, Nigeria etc. Judicial councils are bodies designated to insulate the functions of appointment, promotion, and discipline of judges from the partisan political process while ensuring some level of accountability.

[10] This is obtainable in some States of the United States of America, such as California, Iowa, New York etc

[11]   This body was established under the Military regime in 1966 to 1979.

[12]    See Azinge E. and Rapu J. F., “Roadmap to Judicial Transformation: Through the lens of Retired and serving Jurists of the Supreme Court”, in Azinge and Idornigie (eds.) The Supreme Court of Nigeria 1990 – 2012 (Lagos: NIALS Press, 2012) at 514 – 655.

[13]   Ibid.

[14]   See the provisions of section 197 (1) (c) and Third Schedule, Part II (C), section 6(a) (i) of the Constitution of the Federal Republic of Nigeria 1999.

[15]             See Azinge E. and Rapu J. F., Op cit, at pp. 9 – 10.

 

[16]            Through their elected representatives, sovereignty lies with the people by virtue of section 14 of the Constitution of Nigeria 1999.

[17]            Quoted in Oluyede P. A. O., Constitutional Law in Nigeria, Evans Publishers: Ibadan (1992) at pp. 287 – 288.

[18]  Emphasis supplied by me.

[19]  See Oluyede P. A. O., Constitutional Law in Nigeria, Ibadan: Evans Publishers (1992) at p. 270.

[20]  Ibid.

[21]  See Nwabueze B. O., Federalism in Nigeria under the Presidential Constitution, Sweet & Maxwell: London (1983) at p. 328.

[22]   Prof. Nwabueze, Op Cit, also shares this position; Hon S. T., Constitutional Law and Jurisprudence in Nigeria, Pearl Publishers: Port Harcourt (2004) at pp. 227 and 250; and also the Federal High Court decision in Attorney General of Rivers State v National Judicial Council, unreported suit.

[23]   This is the constitutional requirement for the appointment of an Acting Chief Judge whenever the office of the Chief Judge of a State is vacant. See section 271 (3) of the 1999 Constitution of Nigeria.

[24]   See Hornby A. S., Oxford Advanced Learners Dictionary, (6th ed.) OUP Publishers; Oxford (2001).

[25]   See Hon S. T., Op cit, at p. 227.

[26]   [2002] FWLR (Pt. 117) p.1137 at 1162 paras A – B

[27]   See United States Institute of Peace, Report on Judicial Appointments and Judicial Independence, Jan. 2009.

[28]   See section 271 (1) of the Constitution of the Federal Republic of Nigeria 1999.

[29]   See Hon S. T., Op cit, at p. 26.

[30]   (1988) 10-11 SCNJ 26 at 57.

[31]   See section 271 (3) of the Constitution of the Federal Republic of Nigeria 1999.

[32]   Also for this requirement, see section 14 (4) of the Constitution of the Federal Republic of Nigeria 1999.

[33]   See Azinge E. and Rapu J. F., Op cit. at p. 10

[34]   See Vanguard of March 25th, 2014, on the submissions of Sam Adikamkwu Esq.

[35]   See subsections (1) and (2) all of section 271 of the Constitution of the Federal Republic of Nigeria 1999.

[36]   See Vanguard of March 25th, 2014, on the submissions of Sam Adikamkwu Esq.

[37]   This is further reinforced by the fact that there is a similar provision in section 281(4) of the Constitution for the appointment of acting president of the Customary Court of Appeal of a State, which is a court exclusive and independent from that of the High Court of a State. Borrowing a leaf from case laws authoritative in this regard are the Court of Appeal decisions of Chima Ocean Shipping v NPA, suit No. CA/L/30/3B/84 delivered on 10/12/84; and Attah v Uthman, suit No. FCA/L/87/83 delivered on 10/6/83 respectively.

[38]   See Nwabueze B. O., Op cit. at p. 328.

[39]   This is largely due to the nature of federal structure they operate, whereby the federating States are largely empowered to determine how things are to be done in their States.

 

[40]   Two-thirds of the States in America and the District of Columbia uses the Merit Commission system of     appointing judges.

[41]    Usually headed by the Chief Justice of the Supreme Court of Arizona, 10 public members, and 5 lawyers constitutes the commission. See also United States Institute of Peace, Report on Judicial Appointments and Judicial Independence, Jan. 2009, at p. 5.

[42]   See the 1974 State Constitution of Arizona as amended. The American Merit System as envisaged in sections 63 – 65 of the Officers and Public Employees Act. Also see Garner B. A. (eds.), Black’s Law Dictionary, (8th ed.) West Group Publishers: United States (2004).

[43]   There are other government agencies bestowed with the function of judicial management.

[44]   Compare the American merit commission with the Third Schedule of the 1999 Constitution.

[45]   United States Institute of Peace, Report on Judicial Appointments and Judicial Independence, Jan. 2009, at p.5.

[46]   Ibid. This applies to any rank of the judicial office to be occupied, unlike in Nigeria where the Governor’s discretion ends with the appointment of a Chief Judge only, as the wordings of section 271 (1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 are so clear.

[47]   The Chief Justice of India plays a similar role to that of the National Judicial Council of Nigeria.

[48]   Though this position was breached by Indira Gandhi during the 70s when she appointed the Chief Justice of India without acting on the recommendation of the outgoing Chief Justice. This has since constituted the basic constitutional issues with regard to appointment of a Chief Judge in India, and has called for judicial intervention.

[49]   AIR 1982 SC 2219

[50]   Sabharwal D. and Sharma P., Special Reference Regarding Appointment of Judges: An Exercise in Futility? Manupatra, Vol. 11, (1999) at p. 139.

[51]   AIR 1991 SC 631.

[52]   JT 1993 (5) SC 479. This is also referred to as the SCAORA.

[53]   See section 271 (1) of the Constitution of the Federal Republic of Nigeria 1999.

[54]   Supra.

[55]   See arguments on Judicial Federalism.

[56]   See section 271(4) of the 1999 Constitution of the Federal Republic of Nigeria, which requires that the most senior Judge of the State High Court be appointed as acting Chief Judge and not from any other court.

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