AMAECHI VS NJC DISPUTE, ENTERS CRITICAL STAGE A letter by the National Judiciall Council warning judges in the Rivers State Judiciary not to accept the appointment of acting chief judge of the state may have worsened the rift btw Governor Chibuike Amaechi and the council, writes Davidson Iriekpen A constitutional crisis is brewing in the Rivers State Judiciary with the lack of a functional Chief Judge since November 20, 2013 when the three-month tenure of the acting Chief Judge, Justice Peter Agumagu expired. Investigation by THISDAY revealed that in the three months, activities have really slowed down at the courts. The National Judicial Council (NJC) had rejected Justice Agumagu’s nomination by Governor Rotimi Amaechi in August and in place, recommended Justice Daisy Okocha. But Amaechi instead appointed Agumagu who was the president of the state Customary Court of Appeal in acting capacity for three months as specified by law. Under the Nigerian constitution, the governor has the power to make the first acting appointment of three months, but cannot renew it without the approval of the council. But he has not sought the approval for the extension of Agumagu’s acting tenure. To make Amaechi comply with the constitutional requirement, the NJC recently, wrote a letter to the state judiciary, warning judges not to accept appointment as acting chief judge. Even the quarterly assessment report of judges in the state that should be signed by the Chief Judge had been suspended with the decision of the council to deal with individual judges in the state, since it was taken that there was no CJ since August 2013. To worsen the imbroglio, Agumagu has never been invited for any official functions by the council in his capacity as the state’s acting CJ for the said three months. In one of the letters responding to the request of Amaechi for official recognition for Agumagu, the council had replied him that since Agumagu, by choice, decided to opt for the customary court headship, the law which prefers the most senior judge of the High Court was explicit enough to show that Justice Okocha was the lawful successor to Ndu. A source close to the state judiciary informed THISDAY that Justice Agumagu’s trouble started when he opted to be the President of the state Customary Court of Appeal. The source said though he is currently the most senior judge in the state judiciary, he had technically and constitutionally disqualified himself for the position of the state Chief Judge when he opted for the position of the President of the state Customary Court of Appeal a few years back. Sensing that retirement age might catch up with him if he continued to wait on the queue for the position of Chief Judge, Agumagu had opted to be President of the state Customary Court of Appeal which he got on a platter of gold. Though constitutionally, the governor of a state has the power to appoint a state chief judge, that power cannot be complete without the approval of the NJC and subject to the confirmation by the state House of Assembly. It is common knowledge that from the Supreme Court through to the Court of Appeal, federal and state high courts, the appointments of who heads the courts in particular and the judiciary in general are based on hierarchy. The NJC had in the past rejected nominees from state governors who had tried to break the rule and convention until they reverted to status quo. For instance, Adamawa State in the past two years does not have a substantive judge because Justice Murtala Nyako has refused to follow the constitutional provision. In Abia State, Governor Theodore Orji’s attempt to nominate a judge who is 19th in the hierarchy was rejected by the NJC. Same was the case in Osun State when Governor Rauf Aregbesola attempted to impose Justice Joseph Oyewole of the Lagos State High Court on the people of the state. Besides, there is no doubt that under the Nigerian constitution, a state High Court is higher than Customary Court of Appeal. These are two distinct courts with different judicial personnel, administrative staff and spheres of jurisdiction. The methods of appointment of the judges of the two courts are also different. The mode of appointment for a state High Court is governed by section 271 of the 1999 Constitution while that of a state Customary Court of Appeal is governed by the provisions of section 281. Also, the jurisdiction of the High Court is provided for by section 272 of the 1999 Constitution. The jurisdiction of the Customary Court of Appeal of a state is provided for by section 282 of the 1999 Constitution. Second, where a vacancy occurs in the office of the Chief Judge of the state, section 271(4) of the 1999 Constitution provides that until a substantive appointment is made filling the vacancy, the most senior Judge of the High Court shall be appointed to perform the functions of the Chief Judge in an acting capacity. The section does not say the most senior judge of the Customary Court of Appeal or President of the Customary Court of Appeal, but the most senior judge of the High Court. Third, Section 281(4) of the 1999 Constitution provides that where a vacancy occurs in the office of the President of the Customary Court of Appeal, the most senior judge of the Customary Court of Appeal shall act in the office until a substantive President of the Court of Appeal is appointed. It does not say most senior judge of the High Court. It therefore stands to be reasoned that for the position of acting Chief Judge of Rivers State, judges of the High Court of Rivers State and Customary Court of Appeal of Rivers State are not interchangeable. Amaechi justified the appointment of Justice Agumagu, saying that he would hold office pending when the National Assembly would approve the candidate recommended for appointment as the substantive chief judge by the NJC. Sources close to the state High Court informed THISDAY that Amaechi and Justice Okocha have not been in the best of terms. “Thank God we have federal-controlled agencies like the Nigerian Police Force, NJC, Court of Appeal, Supreme Court. If these agencies were in the hands or control of the state governors in this country, just imagine what would have happened to a lot of the people, particularly the injustices,” the source said. Last week, lawyers practising in the state staged a protest at the premises of the state High Court in Port Harcourt against the refusal of Amaechi to appoint a substantive or acting chief judge for the state judiciary. For the lawyers, even if everything is not working in the state, it certainly should not be the judiciary, which it described as “the only hope of the common man with failure of the executive and legislative arms of government.” The lawyers, numbering about 1,000, who converged on the High Court premises, said they were angry that the state government had refused to appoint an acting or substantive chief judge after five months after the three months tenure of Justice Peter Agumagu who was appointed acting chief judge. The lawyers, under the aegis of Forum of Concerned Lawyers of the Nigerian Bar Association (NBA), Port Harcourt Branch, appealed to the NJC to adopt the principle of necessity and appoint a chief judge for the state in concert with judges in the state. Addressing journalists at the premises of the state high court, the Coordinator of the forum, Mr. Chris Itamunoala, said there was need for the NJC and judges in the state “to act with regard to the doctrine of necessity and the independence of the judiciary as an arm of government to urgently facilitate the appointment and swearing into office of whosoever is the most senior judge of the high court of Rivers State in order to assume the functions and responsibilities of the chief judge of Rivers State to forestall any possible breakdown of law and order due to frustration of litigants and lawyers. “We are gathered here today to protest the refusal of Governor Amaechi to appoint an acting chief judge or substantive chief judge that can perform the statutory constitutional duty of assigning cases that are properly filed at the state high court. “For the record, over the past five months, no single case file has been assigned in consequence of the challenges at hand. Litigants who have briefed their lawyers have been denied their right to fair hearing. To those who care, the judiciary remains our principal place of work as lawyers. A stitch in time saves nine!” “The continued failure of the Rivers State Government to appoint a substantive or acting chief judge in accordance with the provisions of the law has gravely affected the fortunes of the lawyer and the common man in the dispensation of justice at the ‘fishing pot’ of our high court. Join us on Facebook at PRESIDENT JONATHAN SUPPORT FORUM https://m.facebook/groups/444548085671232?_rdr Join us for political news, President Jonathans achievements in govt, campaign informations, materials and strategies.
Posted on: Tue, 28 Jan 2014 07:02:27 +0000