The Constitutionality Or Otherwise Of The Appointment Of Kebbi Chief Judge

TheNigeriaLawyer Editorial

It is no longer a news that Kebbi State governor, Atiku Bagudu, has sacked the embattled Acting Chief Judge of the state, Elizabeth Asabe Karatu and sworn in Justice Sulaiman Ambursa as Mrs Karatu’s replacement. The sacking of justice Karatu has elicited mixed reactions across the country. She alleged that she was not confirmed by the governor because of her religious belief but the governor in a swift reaction has debunked the allegation. The House of Assembly of the state too has released a statement to the effect that it never confirmed Justice Karatu by reason of alterations on her birth certificate among others.

This write up is not concerned with the above narrative. The concern of the write-up is the appointment and swearing-in of the new Chief Judge of the state. Did Kebbi State Judicial Service Commission send the name of Justice Ambursa to NJC for recommendation to the governor or the governor just on his own decided on who to appoint as a replacement to Justice Karatu? If Kebbi State Judicial Service Commission did suggest a name to NJC for recommendation to the governor, then there is nothing unlawful about the appointment. However, if there was no recommendation from NJC on the appointment of justice Ambursa then everything is wrong with the appointment.

The constitutional provision in context for interpretation in this saga is section 271(1) which deals with the appointment of a Chief Judge and the Third schedule Part 1(i) paragraph 21(c) which deals with the relevant powers of the National Judicial Council. Section 271(1) provides:

“the appointment of a person to the office of Chief Judge of a state shall be made by the Governor of State on the recommendation of the National Judicial Council subject to the confirmation of the appointment by the House of Assembly of the State”.

On its part, the Third schedule provides:

“the NJC shall have power to recommend to the Governors from among the list of person submitted to it by the state Judicial Service Commissions persons for appointments to the offices of the Chief Judges of the States…”

The above provisions are clear and unambiguous that though the appointment of a Chief Judge is to be done by state Governors, such appointment can be done only on the recommendation of the National Judicial Council. In other words, the state governor shall appoint only the name sent to him by the NJC and not a different person. Recommendation is a condition precedent for appointing a Chief Judge.

This is not a novel issue in Nigeria. It was a subject of constitutional interpretation few years ago. A recent judgment of the Court of Appeal on the dispute which plagued the Rivers State judiciary for about two years has not only answered the question directly, but has answered many questions on the roles of the governor of a state and the National Judicial Council in the process of appointing the Chief Judge of a state.

The trouble, which started with what seemed to be a mere disagreement between the Rivers State Government led by then Governor Rotimi Amaechi (now Minister of Transportation) and the National Judicial Council in 2013, lingered to outlive that administration which ended in May 2015. Governor Amaechi had preferred as his candidate, for the position of the Chief Judge of the state, Justice Peter Agumagu, who was the President of the Rivers State Customary Court of Appeal, while the NJC had considered another judge in the state judiciary, Justice Daisy Okocha, more suitable for the position.

To set the stage for the long-drawn battle, Amaechi went ahead to swear in Agumagu in as the Chief Judge of the state without the judge being nominated for the position by the NJC. The NJC responded by suspending Agumagu for allowing himself to be sworn in by the governor as the CJ without him being recommended by the Council in violation of constitutional provisions.

The problem degenerated into closure of all courts under the state judiciary in the state for more than one year and left the state without a Chief Judge either in acting or substantive capacity throughout the period. In the middle of the closure of the courts in Rivers State, the Judiciary Staff Union of Nigeria embarked on a nationwide strike.

The governor along with the Rivers State Judicial Service Commission and the Attorney-General of the State filed a suit before Justice Akanbi of the Federal High Court in Port Harcourt praying, among others, that the NJC’s letter recommending Okocha be voided and declared unconstitutional and a nullity. Justice Akanbi in his judgment delivered on March 18, 2014 granted all the prayers sought by the plaintiffs voiding NJC’s recommendation of Okocha and declaring Agumagu as the bonafide candidate that could be recommended by the NJC. The judge also ruled that “in the absence of any reason” given by the NJC for “rejecting the advice” of the RSJSC, “Agumagu P remains the candidate to be recommended and forwarded to the governor for appointment as Chief Judge of Rivers State”.

Both the NJC and Okocha appealed against Justice Akanbi’s decision. The Court of Appeal after hearing the appeals gave judgment in Okocha’s case marked CA/PH/412/2014 and adopted the same reasoning with respect to NJC’s appeal marked CA/PH/412A/2014. The three-man bench of the Court of Appeal headed by Justice Mohammed Garba, in its unanimous judgment delivered on December 23, 2015, set aside the verdict of Justice Akanbi. Justice Garba, who read the lead judgment of the Appeal Court, held that the opinion of Justice Akanbi in his judgment to the effect that the NJC must explain to the governor the reasons for its choice of candidate for the position of the CJ of the state was not envisaged by the Constitution.

Justice Garba held,

“Simply put, the position of the lower court (the Federal High Court) by this statement and finding, is that the 4th respondent (NJC) was not bound by the advice of the 2nd respondent (RSJSC) in nominating a person from the list advised by the 2nd respondent to the 1st respondent (the governor) for the appointment. That is the clear, plain and unambiguous meaning and purport of the provisions of paragraph 21(c) of the Third Schedule, Part I (of the Constitution) read and applied in community and harmony with the provisions of paragraph 6(a)(i) of the same schedule, Part II.

“In the later provisions, the 2nd respondent (RSJSC) is to advise the 4th respondent (NJC) on ‘suitable persons’ for nomination to the office of the Chief Judge of the state and in the earlier provisions, the 4th respondent (NJC) is to recommend to the 1st respondent (the governor) from the list of persons submitted to it by the 2nd respondent ‘person for appointment’ to the office of the Chief Judge of the state.

“It is therefore beyond reasonable argument that in the nomination of a person to the 1st respondent for the appointment in question, the 4th respondent is only bound to do so from the list of suitable persons submitted to it by the 2nd respondent and no more.