By BARTHOLOMEW MADUKWE
Following the Chief Justice of Nigeria (CJN), Mrs Alousious Muktar, refusal to administer oath of office on Justice Ifeoma Jumbo-Ofo, as a Justice of the Court of Appeal, penultimate Monday, some lawyers who spoke with Vanguard Law and Human Rights on the matter noted that her inauguration as a justice at the Court of Appeal cannot be aborted.
A Senior Advocate of Nigeria (SAN), Mr Olanrewaju Ogunlesi, pointed out that it was wrong for the CJN to decline to swear-in the judge for reason of her not being from Abia State, saying that the appointment is like a pregnancy that has outgrown abortion.
Ogunlesi stressed that such development not encourage marriage institution or inter marriage and warned that the issue not be viewed from the perspective of the judiciary alone because it would also affect the civil service.
“Even in America, you can change your state and adopt another state. The decision of the CJN is wrong. Now, nobody would want to marry from another state if he sees that there is no future for him there” he said.
Ogunlesi explained that there is no law stopping Justice Jumbo-Ofo from serving the state of her husband, adding that the Constitution encourages it. He noted that such law applies mainly to men and does not work in abstract situation.
“It must be applied to the facts on ground. For a lady who has served in the state of her husband, the law cannot apply. Nobody is complaining, even the Governor who recommended the judge is not complaining, so why is the CJN, who should promote the course of women in Nigeria, be unwilling to swear her in?” he wondered.
The Senior Advocate further explained that technically Justice Jumbo-Ofois no more a justice of the High Court, since having received her letter of appointment as a justice of the Court of Appeal, adding “she ought to be sworn in as a judge of the Court of Appeal because once you are announced as being elevated, the status-quo no longer obtains. She cannot go back to the High Court.”
He maintained that for there to be a better and united Nigeria, inter-marriage should be encouraged at all levels, saying “in respective of where you come from, once you are married into another tribe or state, and then you have left whatever you have in the former for the latter, whatever benefits that comes from the latter should as well be given to the person who has moved into another state.”
A legal Consultant, Chief Morah Ekwunoh, who also spoke on the matter, said the CJN refusal to swear-in Justice Jumbo-Ofo, as a Justice of the Court of Appeal, on account of petition to her office, is to say the least, unconstitutional and embarrassing, not only to Justice Jumbo-Ofo, but to the institution that the learned CJN represents.
“This is because, the Learned Justice, having fully qualified for elevation to the Court of Appeal; and having been appointed by the President, upon the recommendation of the National Judiciary Council (NJC), in line with the provisions of sections 238(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended), she should have been sworn-in along with her eleven other lucky colleagues.
“To do otherwise, would clearly run counter to the constitutional provision aforesaid. Last minute abortion of her swearing-in process, even when she was already seated for same is absolutely wrong in law, since the swearing-in ceremony was merely ceremonial and never went to the pitch and substance of her elevation” he added.
Ekwunoh said the issues of petition against the judge, not having been handled before her appointment, by the President, upon her recommendation by NJC; and upon her appearance for mere swearing-in ceremony, was in the circumstance belated and would not have warranted the undeserved humiliation visited on the Judge.
In his words: “The petition against her would have been discussed by the NJC, qua NJC, and not qua CJN, since it was the NJC, and not CJN, that recommended her pursuant to section 238(3) supra. The NJC, and not the CJN, would have decided whether the recommendation to the President, for her elevation would be withdrawn.
“In the circumstance, since the CJN does not constitute NJC alone, her singular and unilateral action of not swearing Honourable Justice Ifeoma Jumbo-Ofo is absolutely ultra vires and unconstitutional. It amounted to her unilateral usurpation of the powers of the NJC.”
He opined that the petition, at NJC level, against the learned Justice should not have aborted her swear-in process, as she is clearly an Abia state indigene by virtue of her marriage thereat, apart from her inalienable right to non-discrimination, as enshrined in section 42(1), among others, of the 1999 Constitution (supra), and Article 19, among others, of the African Charter on Human and People’s Rights (Enforcement and Ractification) Act, Laws of the Federation of Nigeria, Volume 1, Cap. A9, Laws of the Federation of Nigeria, 2004, to which Nigeria is a leading signatory, adding that both prohibits discrimination on grounds including sex and place or of birth.
However, Mr Qudus Mumuney, a legal advisory, held that the Judicial Service Commission (JSC) and NJC have over the years adopted a policy for the appointment of Justices of the Superior Courts (Court of Appeal and Supreme Court) to reflect “Federal Character”. In effect, a person may only be appointed a Justice of the Superior Courts if there is a slot for his state.
“But Section 238 (1) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides for the appointment of the President and Justices of the Court of Appeal. By virtue of the provision of Section 238 (1) of the Constitution, the appointment of a person as a President and/or Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate” he averred.
Mumuney, in his own view, pointed out that CJN’s refusal to administer the Oath of Office to Justice Jumbo-Ofo was not because she is not from Abia State as she claimed, it was mainly that she did not state the true position of her indigeneship.
“Justice Jumbo-Ofo is from Anambra State but married to a man from Abia State. There is however nothing in our laws which state that the indigeneship of a woman changes to that of her husband’s state of origin upon marriage. If the policy of the Judicial Service Commission and the National Judicial Council is that a person’s state of origin, for the purposes of appointment as a justice of the Superior Courts, is his true state of origin and not the state of origin of the husband, then that remains the policy until it is changed.”