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Saving the judiciary from itself

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By Chidi Nkwopara, OWERRI

 

The social space has been inundated with varying opinions and if you like, media war, on who should take over from any retiring state chief judge, or any other one in the federation.

This “media war” had previously, and at various times, taken place in some states of the federation, including, but not limited to Imo State.

In Cross River State, the lawmakers have bluntly refused to confirm the National Judicial Commission’s nominee, Justice Akon Ikpeme, as the substantive Chief Judge of the state.

Let me concede immediately that I am not a lawyer, but in handling this issue, excerpts from some documents, including the Nigerian Constitution and people’s views will become very handy.

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Section 271(1) of the Nigerian Constitution provides that “the appointment of a person to the office of the Chief Judge of a state, shall be made by the Governor of the state, on the recommendation of the National Judicial Council, subject to the confirmation of the House of Assembly of the state.”

From the foregoing, it is clear that this Section did not specifically mention the particular person to be appointed by name or office, even as it also follows that nobody can claim any exclusive right to be appointed the Chief Judge of a state.

From this same quoted Section, the principal actors are the National Judicial Council, NJC, which recommends a named person to the Governor of a state, who then makes the appointment, subject to the approval of the State House of Assembly.

The issue now is: How does the NJC find the person to be recommended to the governor for appointment as the Chief Judge of a state? The answer lies in the powers given to the State Judicial Service Commission, JSC, by the Constitution to recommend persons to the NJC for appointment as judicial officers of the courts established for a state, by the Constitution, which includes the Chief Judge of a state.

Again, how does the JSC of a state find the person to be recommended to the National Judicial Council, NJC, for appointment as the Chief Judge of the state? This can be found in the 2014 revised NJC Guidelines and Procedural Rules, for the appointment of judicial officers of all superior courts of record in Nigeria.

The guidelines make provisions for the JSC to shortlist a number of persons as it deems fit, which usually, are serving judges in order of seniority, not by any specific provision of the Constitution, by practice and write to the judges to submit their curriculum vitae, medical certificate of fitness and credentials to the JSC.

Thereafter, the JSC forwards the shortlisted names to all former heads of the particular court to which the appointment is to be made, as well as all branches of the Nigerian Bar Association, NBA, in the state and the Department of State Service, DSS, in the state.

At the end of the consideration of the reports and comments by members of the JSC, a decision is taken on which two of the shortlisted judges or persons, should be forwarded to the NJC, as preferred and alternate candidates for consideration and recommendation of one of them, to the governor for appointment as the Chief Judge of the state.

Apart from the foregoing, and in all cases, good character and reputation, diligence and hard work, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics, are also considered.

It was also gathered that any of them shall not be recommended for appointment if found to have been involved in canvassing or lobbying for the appointment directly or indirectly in any form and through any person or persons, including politicians, royal fathers,public officers and other judicial officers.

Similarly, bad behaviour, whether in or out of court, influence peddling, display of lifestyle, which indicates that the candidate has been living above his or her means.

Submission of false credentials and/or deceitful or fraudulent curriculum vitae, as we as any act of dishonesty or corruption or corrupt practice, either on behalf of himself or any other judicial officer or professional colleague.

By virtue and essence of the independence of the JSC, as envisaged by the provisions of Section 202 of the Constitution, the JSC is not bound by any directive from any authority whatsoever, in arriving at the two candidates to be recommended to the NJC.

It must be put on record that the shortlisting of up to four or more judges, as the case may be, shows that seniority of judges is only but a factor in the entire process. The shortlisted judges are then considered along the qualifying and disqualifying factors listed above. It is only if the most senior of the judges is found to be the best of all shortlisted judges or at par with the rest that the most senior is nominated or recommended by the JSC and NJC, to the governor for appointment as Chief Judge of a state.

It is axiomatic and a principle of equity that “where the equities are equal, the first in time prevails”_ but where the equities are not equal, the first in time or most senior judge, can never prevail over a more competent judge.

This position was vividly captured by a one time Attorney General of Imo State, D. C. Denwigwe, SAN, on the irrelevance of considering seniority as a criterion for the appointment of a Chief Judge of a state.

His legal opinion to the Military Governor of Imo State, dated December 9, 1998, reads: “The Chief Judge must possess good judicial temperament. He must not exhibit a highly flammable temperament or an automatic readiness to bring his office low. Whether in military regime or in a civilian democracy, times come when the great learning, full experience and level headedness of the Chief Judge are what it takes to sustain the state.

“Against the immediate foregoing background, it is easy to see why seniority should neither be the only yardstick nor rise above other measures of merit.”

After mentioning the name of the judge he was unable to vouch for, he also stated that “no well practiced lawyer in Imo State, can dispute the scholarship of either Hon. Justice L. C. Alinnor or P. C. Onumajulu.”

He then added: “Harmonious relationship within the judiciary thus outweighs seniority. In my candid view, the judge who appears most preferred by his brother judges, if he also possesses the other qualities listed earlier, is the best.”

The point to be made here is that there is nothing wrong or extraordinary if objections and petitions are raised or made against the suitability of any judge for higher judicial appointment, including that of a Chief Judge of a state.

Instances abound where the JSC of a state and NJC appointed judges who were not the most seniors as heads of courts, both at federal and state levels and those appointments never generated any furor or agitation, because they were made on solid and sound basis.

Therefore, whenever the appointing authorities deviated from appointing the most senior judge as head of court or as Chief Judge, as were done in states like Abia, Ebonyi, Enugu, Imo, Rivers and Bornu States, to mention but a few, they must have had solid grounds to do so.

It is suggested that we should allow those charged with such duties under the Constitution, to do so without undue interference and rancour.

However, it is truly disturbing when it is discovered that some of the victims of these failed choices are women, who are denied the position because of being married outside their state of birth!

 

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