As the crisis rocking the Rivers State judiciary worsens, the state
government has said it rejects the suspension of the state Chief Judge,
Justice Peter Agumagu, by the National Judicial Council (NJC).
It described the suspension as illegal and unconstitutional, insisting
that Agumagu remains the substantive Chief Judge of the state.
The NJC had last week suspended Agumagu as a judicial officer and gave
him four days to give reason why he should not be removed.
Addressing journalists in Government House, Port Harcourt yesterday on
the position of the state government, the state Attorney General and
Commissioner for Justice, Mr. Worgu Boms, accused the NJC of
constituting itself into a court.
According to Boms, “The position of NJC which is very unfortunate,
gives equally unfortunate and misleading impression to public that the
appointment of the Justice Agumagu as Chief Judge of Rivers State,
occurred in nibubus (ie from the skies) and with no contribution of the
NJC to it or that there is no history behind it. NJC wants the world to
believe that Justice Agumagu just woke up, walked to the State House
and got appointed and sworn in as the Chief Judge. This impression is
misleading, self-serving and diversionary.
“It is important to state from the outset that the NJC has always
preferred the doctrine of the Most Senior Judge of the High Court, in
the appointment of the Chief Judge of the State and in particular, the
Justice D.W. Okocha, as its candidate for the position. In its
single-minded pursuit of the actualisation of this doctrine and
preference, it enunciated further the doctrine that only a judge of the
state High Court is qualified for consideration for the office and that
the Justice Agumagu, then, President of the state Customary Court of
Appeal, could not be allowed to cross over to become the state Chief
Judge.”
Explaining the issues involved in the impasse, Boms said: “For the
records, Justice Agumagu is senior at the Bar and on the Bench to
Justice Okocha. Following the advice from the state Judicial Service
Commission (JSC) to the NJC listing Justice Agumagu as N0 1 and Justice
Okocha N0 2 as persons for possible consideration for recommendation
for the appointment, to the substantive position of Chief Judge, the NJC
wrote to His Excellency, the governor of the state, that of the two
candidates, recommended to it by the state JSC that even though Justice
Agumagu is first on the list, he was being rejected because His Lordship
was not the most senior judge of the High Court and could not cross
over from the Customary Court of Appeal to become the Chief Judge.
“Only Justice D.W. Okocha could thus be qualified for appointment based
on the NJC’s twin doctrine of seniority and non-crossing over. Needless
to say, these twin qualifications of most senior judge and non-crossing
over are creations, not of the constitution that prescribes only 10
years’ post call as qualification for the office of the Chief Judge, but
of the NJC, which sadly, has now transmogrified from being a
recommending body to a law making body.”
He noted that the issues involved in filling the vacancy of the chief
judge were not peculiar to the State as some states had passed or were
passing through the same process.
The commissioner however, wondered why the NJC did not write to judges
in those states “to intimidate them on the matter and to fetter their
conscience."
“If the appointment of Chief Judge of the state were to begin and end
with the NJC, then perhaps, there would be no problems with its
preferred candidate. Unfortunately, the constitution provides that four
institutions – the state JSC, the NJC, the governor and the state House
of Assembly - must all participate for a candidate to become the Chief
Judge. In the NJC’s view, however, its contribution to the process must
be the only valid and final one, otherwise, a Judge must lose his
appointment as not even a court pronouncement on the matter will it
respect. This is the heart of the seemingly intractable succession
crises to the office of the Chief Judge, not only in Rivers State, but
also in other states where the issue is yet to be resolved.”
Boms insisted that there was no law that vests the NJC with the power
to declare acts unconstitutional and that what the council did to
Agumagu was a usurpation of judicial powers and functions.
“The NJC or indeed, any council for that matter, has no powers under
any law to declare the action of the state governor, in this case, the
action of the governor of Rivers State in the appointment of the chief
judge of the state, unconstitutional. Only a court vested with the
requisite jurisdiction can validly do so and the NJC, no matter how
eminent its members are, is not a court of any cadre in Nigeria. It is
like any of the several commissions established under the same Section
of the 1999 Constitution of the Federal Republic of Nigeria,” Boms
stated.
He insisted: “The NJC does not have the power to appoint or dismiss a
judge. It cannot even suspend a judge under the colour of discipline. It
can only recommend such to either the governor in the case of state
judges, or to the president, in the case of federal judges.
“This is the law and the NJC has also interpreted its disciplinary
action of suspension along the line of recommendation to the appropriate
authorities when, for example, it found it necessary to discipline the
then President of the Court of Appeal, it was by way of recommendation
to the president who approved the recommendation and thus that justice
was suspended. When, subsequently it saw the need to recall the
suspended justice, it did not do so directly, it similarly recommended
to the President to effect the recall.
“There are other examples including the recommendation for the he said
the NJC was setting a dangerous precedent as “it means that any judge of
any court can, without being heard, for any reason, just stop
functioning as a Judge in the name of suspension by the NJC.”
Boms stated that the Rivers State Government wrote NJC to inform the
council that its twin doctrines for rejecting Agumagu were unknown to
the law in the appointment of chief judge under the Constitution. He
said the state also told the NJC of its rejection of the recommendation
of Okocha.
He disclosed that when NJC stuck to its gun on the recommendation of
Okocha, the Rivers State Government and the state Judicial Commission
had to file a suit before the Federal High Court sitting in Port
Harcourt. The NJC (1st defendant) entered appearance and Justice Okocha
applied to join and was joined as the 2nd defendant.
He recalled that in its ruling of March 19, the Federal High Court
agreed with the state government and the state Judicial Commission and
ruled in their favour.
He said the court ruled in favour of the state government and the state
Judicial Service Commission and said Agumagu remained the candidate to
be recommended to the state governor for appointment as chief judge.
He said based on the judgment, the NJC had no further role to play in
the matter in the face of the restraining order and the holding that
Agumagu is the most qualified candidate and who ought to be recommended
by the NJC.
“Based on this premise, Governor Rotimi Amaechi of Rivers State,
appointed Agumagu and the state House of Assembly screened him and he
was successfully sworn in as the seventh Chief Judge of the state,” he
said.
According to Boms, “By wielding the big stick against an innocent judge
and purporting to use administrative measures to truncate the outcome
and fruit of a judicial process to which it submitted and participated
actively in and without appealing thereafter, the NJC is using its power
inappropriately and is unwittingly contributing, in an eloquent form,
to the ridiculing of the court system which it should be promoting and
respecting.”
“The Rivers State Government rejects the NJC’s unconstitutional and
contemptuous stance on this matter and states categorically that only a
court of competent jurisdiction can declare its actions and activities
unconstitutional and certainly not a council, a committee, a commission
etc, howsoever described when such bodies, no matter their nomenclature
and the eminence of their membership, are subject to the law of the land
and the court.”
