NJC’s Recommendation And Governors’ Ultra Vires Exercise By Godwin Odimabo, Esq

Nigeria as a Country, is operating Constitutional Democracy despite the fact that revered institutions of Government have been desecrated by the exercise of ‘naked power’ by those in authority, which neither calls for the abandonment of laid down Rules and procedures , Rule of Law in the manner things are done in a Constitutional Democracy.

By the provision of Section 153(i) of the 1999 Constitution (as Amended), the National Judicial Council (NJC) is vested with powers relating to the appointment and exercise of disciplinary Control over Judicial Officers specified in paragraphs 21 of part 1 of the Third Schedule of the 1999 Constitution.  It equally deals with matters relating to policy and administration. This function is similar to those of the State Judicial Service Commission of the various States as contained in Section 197 (1) (c) of the 1999 Constitution, where the Commission renders advise and makes recommendations to the National judicial Council on appointment, discipline and removal of judicial Officers.

In ensuring the efficiency of its Constitutional mandate, the National Judicial Council had made rules to which it follows in reaching a decision via recommendation to the appropriate appointing authority. By the provisions of Rules Two (1), it provides thus:

“Whenever the Chairman of a State Judicial Service Commission proposes to embark on the process for appointment of candidates or a candidate to Judicial Office in the State, notice shall be given to the Governor of the State concerned stating the number of Judicial Officers intended to be appointed”.

In furtherance of this, the Commission is mandated to ensuring that what is stipulated in the procedural NJC Rule is complied with in having a candidate cleared by the Council.

The State Judicial Service Commission in serving its purpose as administrative body receives petitions against any Judicial Officer Nominee in the State before same gets to NJC. By the provision of Rules Three, it states thus:

1. (a) Upon receipt by the Judicial Service Commission/Committee concerned of the decision of the Chief Justice/Chairman of the National Judicial Council rendered pursuant to Rule 2(4) advising that the exercise be proceeded with, the relevant Judicial Service Commission/Committee shall:
2. call expression of interest by suitable candidates by way of public notice placed on the website of the Judicial Service Commission/Committee concerned, notice Boards of the Courts and notice Boards of Nigeria Bar Association Branches;
3. write to every other head of Superior Courts of Record in Nigeria and to every Judicial officer of the Court concerned asking for nomination of suitable candidates for the proposed judicial appointment;

• write, in the case of appointment to a Federal Court, to the President, Nigerian Bar Association; or, in the case of appointment to a State Court, to the Chairman of every Branch of the Nigerian Bar Association in the State concerned, asking for nomination of suitable candidates for the proposed judicial appointment and requesting that he/she brings to the notice of suitable candidates the call for expression of interest by each of them.

1. (b)…

2…

3. The Judicial Service Commission/Committee shall specify the closing date for the receipt of applications and/or nominations in the call of expression of interest and in the request for nomination.
4. Soon after the closing date for the receipt of applications and or nominations, the Chairman of the Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits consisting of not less than twice the number of Judicial Officers intended to be appointed at the particular time and circulate the provisional shortlist together with a request for comments on the suitability or otherwise of any of the short listed candidates, as follows:
5. among all serving and retired Judicial Officers of the Court to which an appointment of a Judicial Officer, other than the Head of a Court, is proposed to be made;
6. among all serving and retired Heads of the relevant State or Federal Court, including retired Chief Justices of Nigeria and retired Presidents of the Court of Appeal, in the case of appointment of a Head of Court;

• among the Nigerian Bar Association branches in the State concerned where the appointment is to a State Court; provided that where the appointment is to a Federal Court the shortlist shall only be sent to the President of the Nigerian Bar Association; and

1. Among every Member of the Judicial Service Commission/Committee concerned.
2. The Chairman of the Judicial Service Commission/Committee shall place the provisional shortlist before the Judicial Service Commission/Committee for approval and upon such approval, with or without modification; the provisional shortlist shall become the final list’.

Flowing from this Rules by the National Judicial Council, can a Governor or an appointing authority refuse the swearing in of a Judicial Officer designate cleared by the National Judicial Council on grounds of a petition, same Candidate’s name having been forwarded by the State Judicial Service Commission to the NJC, whose duty is said to be final by Rules Three (5) of the NJC Procedures in the Appointment of Judicial Officers?

The administrative duties of both the NJC and the State Judicial Service Commission of the States includes receiving of petitions against Judicial Officers and intended judicial officers whose names have been shortlisted for objections by those concerned. It therefore follows that there is a time-frame within which petitions against a nominee could be entertained at the State judicial service Commission level and at the NJC level. By Rules Two (5) of the NJC’s procedural Rules, it state thus:

‘The decision of the Chief Justice/Chairman of the National Judicial Council shall be communicated in writing to the Chairman of the Judicial Service Commission/Committee, or as the case may be, the Head of Court and shall be final unless the Head of Court shows grounds to the satisfaction of the Chief Justice/Chairman of the National Judicial Council why it should be reviewed’.

The National Judicial Council and the State Judicial Service Commission have their final stages within which to act; and once it goes beyond that point, the procedures closes for petition acceptance. A candidates/Nominee/Designate whose name had left JSC to NJC and comes back to the JSC or the Governor or the appointing authority, can neither be tempered with by the State Judicial Service Commission nor the Governor. At this stage, the Governor or the appointing authority has singular duty in upholding the Constitutional provision and laid down rules and procedure in that regard. In the Words of Niki Tobi JSC (of blessed memory) in Attorney-General of Abia State & 2 Ors. V Attorney – General of the Federation & 34 Ors (2006).

“…The Constitution of a nation is the fons et origo, not only of the jurisprudence but also of the legal system of the nation. It is the beginning and the end of the legal system. In Greek language, it is the alpha and the omega. It is the barometer in which all statutes are measured. In line with this kingly position of the Constitution, all the three arms of Government are slaves of the Constitution, not in the sense of undergoing servitude or bondage, but in the sense of total obeisance and loyalty to it. This is in recognition of the supremacy of the Constitution over and above every statute, be it an Act of the National Assembly or a law of the House of Assembly of a State…”.

Conclusively, in the case where one of such judicial officer designate is of the Magistracy, whose name have been approved  by the NJC and the appointing authority illegally refused to swear in such a person, the smooth administration  of justice in that jurisdiction will suffer, as man power in the field is reduced by that singular act. The reason has been that upon being confirmed by the NJC as a Judge waiting for swearing in and there is failure or refusal to swear such a person in by the appointing authority, such a person cannot go back to his previous position to act. He is in a position of automatic stagnation. Vacuum has been created. He is seen in the eyes of the law as a judicial officer from the day he was cleared by the NJC; and cannot go back to his previous position to perform any judicial function. This was the Supreme Court position in OKUDO & 5 Ors. V OGBUIYIYA & 2 Ors. . It will serve the cause of Justice if the relevant authority concerned could take a critical look at its action if indeed it is in line with the law, which in my candid view, runs short of legal clothing in the circumstance, as petitions cannot be entertained after the recommendation by JSC to NJC and back to the appointing authority for swearing in. Only the act of the State House of Assembly in refusing to clear such a Nominee can hold waters at that stage. The sole duty of the appointing authority after NJC’s recommendation is merely to swear in; and does not at that stage call for acceptance of petitions, which window had ended either at the JSC or NJC level prior to the recommendation by the NJC. It is illegal for an appointing officer/Governor to act on a petition and refuses to swear in a Nominee who was cleared by the NJC via its recommendation thereafter. Following due process of the law no matter how inconvenient it could be to the authority that be, gives hope to followership and builds confidence in the system; promote development and brings peace into the Society. We all must always act according to law in order to remain immortal in the history book of life.

Godwin Odimabo, O.C Wechie & Co.(Legal Practice) 248A Sani Abacha Road, G.R.A3 Port Harcourt, Rivers State., godimabo@yahoo.com