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NIGERIA: Face-off That Threatens the Rule of Law

The current face-off between the Rivers State Government and the National Judicial Council (NJC) is a potential threat to the rule of law, writes Davidson Iriekpen

The crisis between the Rivers State Government and the National Judicial Council (NJC) deteriorated further last week when Governor Chibuike Amaechi signed into law, the Rivers State High Court (Amendment) Law 2014 after the state House of Assembly had in the afternoon passed the bill.

The law, which is still part of the effort by the state government to ensure that Justice Daisy Okocha does not take over the state’s judiciary as the administrative judge of the state as directed by the NJC, empowers the Chief Registrar of the state High Court to assign cases to any judge and perform other administrative duties until an acting Chief Judge or a Chief Judge is appointed.

The assembly, in passing the state High Court (Amendment) Law 2014, amended Section 40 of the Principal Law of 2001. Section 40 of the Principal Law, which was passed by the fifth legislative assembly, was amended by the addition of a new sub-section 2, to read: “Where the office of the Chief Judge is vacant and it is impracticable to appoint an acting Chief Judge or a Chief Judge, the Chief Registrar shall assign cases to any judge and perform other administrative duties until an acting Chief Judge or a Chief Judge is appointed.”

The assembly, presided over by the Deputy Speaker, Mr. Leyii Kwanee, sat at the old executive chambers of the Government House for about one hour after its committee on judiciary held a public hearing on the bill. All the 18 members present voted unanimously in favour of the amendment.

Addressing his colleagues after the amendment, Kwanee said no amount of sacrifice was too much to ensure the peace and progress of the state. He said the amendment of the High Court Law would create way for the resolution of the crisis that had impaired the state judiciary.

“I want to thank my colleagues for your support and sacrifice in the quick passage of the bill. I want to assure you that no amount of sacrifice is too much to pay. It is for the peace and progress of this state that we took the decision. All of our constituents are suffering and the judiciary has to function,” he said.

Before the latest development, as part of the effort to counter the imposition of Okocha on the state by the NJC, Amaechi had penultimate week, allegedly ordered the stoppage of the salaries of the state judicial workers. The order followed the state government’s threat to deal with any staff of the state judiciary who obeyed the directive of the NJC, which was that Okocha should act as the Administrative Judge of the state pending the appointment of a chief judge.

In a letter dated June 5 and jointly signed by the Accountant-General of the state, Ngozi Y. Abu and the Director, Treasury, Office of the Accountant-General, Dagogo R. Abere, the state government ordered the General Manager, Zenith Bank Plc, at Plot 1/2, Presidential Estate, Aba Road, Port Harcourt, to stop the payment of salaries of the judiciary workers until further notice.

The letter obtained by THISDAY read in part: "Sequel to the directive of His Excellency, the Executive Governor of Rivers State, we write to request your bank to stop the May 2014 salaries of all staff of the state judiciary till further notice.” The letter further warned that "strict compliance in this respect is solicited …"

By the development, all the judiciary workers who had vowed to comply with the directive of the NJC would remain without their salaries and allowances until Amaechi decides otherwise.

The NJC had recommended Okocha to act as the administrative judge of the state High Court because according it she is currently the most senior judge in the state high court.

A statement by NJC’s acting Director, Information, Mr. Soji Oye, said the absence of a chief judge in the state had brought untold hardship to litigants. The council said its decision was to ensure that there was no vacuum and that the administration of justice runs smoothly, adding that it considered the pains and frustrations which the state judiciary and litigants in the state are facing following the vacuum created by the absence of a substantive or acting chief judge in the state.

Oye explained that the council at a meeting held on May 27, deliberated on the current state of affairs in the Rivers State judiciary and noted with concern, the non-appointment of a substantive chief judge or acting chief judge for the state and its attendant consequences on the general administration of justice, particularly the assignment of cases and other related administrative duties in both the high court and the Customary Court of Appeal of state.

“Consequently, in the exercise of its constitutional powers, council decided as follows: (i) that the most senior judge in the High Court of Justice of Rivers State Judiciary should perform the functions of assigning cases to all the judges of the court and also carry out other related administrative duties. (ii) that the most senior Judge in the Customary Court of Appeal of Rivers State Judiciary should perform the functions of assigning cases and also carry out other related administrative duties,” the council said.

The state government had warned it would take disciplinary action against any judiciary officer in the state that recognised or worked with Okocha as administrative or chief judge of the state. The Attorney-General and Commissioner for Justice, Mr. Wogu Boms, said the warning became necessary because of rumours making the rounds that Okocha had been appointed administrative judge of the state by the NJC.

While dismissing the rumour, Boms said both the NJC and the Rivers State Judiciary were incapable of making such appointment and urged the general public to disregard such rumours, and equally warned those peddling the rumours to desist forthwith, or be ready to face the wrath of the law.

“The Rivers State Judicial Service Commission is a body established by the constitution, which is equivalent to the NJC at the national level. While the NJC takes care of federal Judges, the state judiciary takes care of the state judges and staff of the judiciary.
“We are not aware of such development that Justice Okocha has been appointed administrative judge in the state. And our attention has not been drawn to such development, either by the Chief Registrar who is like the secretary of the Judiciary or anybody at the NJC level. It remains a rumour.

“However, the state JSC attention has been drawn to a publication by the Rivers State Government that they are aware of such possible development by the National Judicial Service Commission (NJC).  This is because NJC met last week, and it may be possible that they are working on such issues, but, right now, there is no official report or communication to that effect by the NJC to anybody in that matter.

“The NJC does not have the powers to make such appointment in Rivers State for the judiciary, whether they call it chief judge or acting chief judge or administrative judge, however described.  It is illegal and the NJC is practically incapable of making such appointment.”

The lack of a substantive or recognised head in the state judiciary has really affect justice administration in the state in the last 10 months. New cases are not being filed. The ones filed have not been assigned because there has not been anybody to play the role.
Lawyers and litigants have been frustrated. With the new law now empowering the chief registrar to assign cases, the state government may be seeking to further complicate the feud between it and the NJC and ridiculing the judges in the state who are far higher than chief registrar.

Trouble started when Amaechi nominated Justice Agumagu as a replacement for the retired chief judge of the state, Justice I. Ndu, last year. The nomination, which did not go down well with the NJC was subsequently rejected by the council which preferred Okocha in his stead because she is the most senior judge from the state High Court. But Amaechi disregarded the council’s directive by appointing Agumagu who was the president of the state Customary Court of Appeal to act for three months as specified by law.

To make Amaechi comply with the constitutional requirement, the NJC wrote to the state judiciary last year and warned judges not to accept the appointment of Agumagu as the acting chief judge. Even the quarterly assessment report of judges in the state that should be signed by the chief judge had been in disarray with the decision of the council to deal directly with individual judges in the state, since it was taken that there was no CJ since August 2013.

To compound the situation, Agumagu has never been invited to any official functions by the council in his capacity as the state’s acting CJ for the said three months.

In one of the letters responding to the request of Amaechi for official recognition for Agumagu, the council had replied him that since Amaechi, by choice, decided to opt for the customary court headship, the law which prefers the most senior judge of the High Court was explicit enough to show that Okocha was the lawful successor to Ndu.

Presently, the state high court is at a standstill. Hardly do the courts sit. Litigants and their lawyer hardly file cases because there is no chief judge to assign them. On two occasions, lawyers in the state had embarked on protests.

In one of the protests, the lawyers, under the aegis of Forum of Concerned Lawyers of the Nigerian Bar Association (NBA), Port Harcourt branch, appealed to the NJC to adopt the principle of necessity and appoint a chief judge for the state in concert with judges in the state.

Addressing journalists at the premises of the state high court, the Coordinator of the forum, Mr. Chris Itamunoala, said there was need for the NJC and judges in the state “to act with regards to the doctrine of necessity and the independence of the judiciary as an arm of government to urgently facilitate the appointment and swearing into office of whosoever is the most senior judge of the high court of Rivers State in order to assume the functions and responsibilities of the chief judge of Rivers State and forestall any possible breakdown of law and order due to frustration of litigants and lawyers.

“We are gathered here today to protest the refusal of Amaechi to appoint a substantive chief judge that can perform the statutory constitutional duty of assigning cases that are properly filed at the state high court.

“For the records, over the past five months, no single case file has been assigned in consequence of the challenges at hand. Litigants who have briefed their lawyers have been denied their right to fair hearing. To those who care, the judiciary remains our principal place of work as lawyers.

“A stitch in time saves nine. The continued failure of the Rivers State Government to appoint a substantive or acting chief judge in accordance with the provisions of the law has gravely affected the fortunes of the lawyer and the common man in the dispensation of justice at the ‘fishing pot’ of our high court.”

Though constitutionally, the governor of a state has the power to appoint a state chief judge, that power cannot be complete without the approval of the NJC and subject to the confirmation by the state House of Assembly. For the NJC, its input is required to avoid a situation where the governors would abuse due process.

The situation was further complicated when Justice Lambo Akanbi of the Federal High Court sitting in Port Harcourt, while ruling on the suit filed by the state government seeking an interpretation of Section 271 (3-5) of the 1999 Constitution as regards the appointment of chief judge of the state, declared that the NJC erred in its recommendation that Okocha was the most qualified judge for appointment as chief judge of the state.

Akanbi said the argument by the NJC that Okocha was the oldest judge of the state High Court and more qualified to be chief judge of the state because the Chairman of the state Customary Court of Appeal, Justice Peter Agumagu, was of a different arm of the judiciary was wrong. He also stated that the state governor could not be compelled to accept whoever the NJC sent to him, because the governor is not a rubber stamp.

As soon as the court made the pronouncement, the state House of Assembly, sitting at the old executive council chambers of Government House, immediately proceeded to screen and confirmed Agumagu as the chief judge of the state. This was immediately followed by his swearing-in by Amaechi.

Angered by the development, the NJC suspended Agumagu. A statement signed by NJC's acting Director, Oye, said the decision to suspend Agumagu was taken at an emergency meeting held on March 26. The council cited section 271 (1) of the Constitution which gave it the power to recommend a judge for the appointment of the chief judge of a state and said at no time did the council recommend Agumagu for appointment as chief judge.

The statement states: “The NJC under the chairmanship of the Chief Justice of Nigeria, Justice Aloma Mariam Muktar, considered the purported appointment, confirmation and swearing-in of Justice Agumagu as the substantive Chief Judge of Rivers State on the 18th Day of March, 2014.

"In the course of deliberations on the matter, council noted as follows: That it is expressly provided in Section 271 (1) of the 1999 Constitution  (as amended) 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 NJC, subject to the confirmation of the appointment by the House of Assembly of the state;'
"That the NJC did not at any time make any recommendation to the Governor of Rivers State that Hon. Justice Agumagu, President, Customary Court of Appeal be appointed the substantive Chief Judge of Rivers State. Council therefore resolved as follows: that the National Judicial Council does not and will not recognise Justice Agumagu as the Chief Judge of Rivers State.

"That the general public and all concerned in the matter, particularly the Governor of Rivers State, the Rivers State House of Assembly, the Judiciary in Rivers State, be notified and informed that the NJC will not deal with Justice Agumagu as the Chief Judge of Rivers State;

"That a query be issued to Justice Agumagu to explain in writing within four days why he should not be removed from office as a judicial officer for his failure to abide by his oath of office to uphold the constitution and laws of the Federal Republic of Nigeria;
"In the meantime, council in exercise of its powers under paragraph 21 (d) of part 1 of the Third Schedule of the 1999 Constitution has suspended Justice Agumagu from office as a judicial officer with immediate effect."

But the state government frontally rejected the suspension of Agumagu and described it as illegal and unconstitutional, insisting that Agumagu remains the substantive chief judge of the state. Boms accused the NJC of constituting itself into a court.

“The position of NJC which is very unfortunate, gives equally unfortunate and misleading impression to the public that the appointment of the Hon 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. The Hon Justice Agumagu, the NJC wants the world to believe, 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 Rivers State and in particular, the Hon Justice 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’s Customary Court of Appeal, could not be allowed to cross over to become the State Chief Judge.”

Agumagu had since filed a suit at the Federal High Court, Abuja to challenge the suspension and while the suit is still pending, the NJC went ahead to appoint Okocha as the state’s Administrative Judge.

With the development, the state judiciary has also suffered a major blow in the hands of the executive arm of government in the state. The state House of Assembly is currently under lock with only the lawmakers loyal to Amaechi sitting at Government House.

Reacting to the new law, the state chapter of the PDP in a statement issued by the state chairman, Chief Felix Obuah, said: “The purported amendment of some sections of the Rivers State High Court rules and the hasty signing into law in the midnight by the State Governor, Rotimi Amaechi, is highly condemnable, a rape on democracy and a premeditated effort to lord it over the judiciary which is the third arm of government that is as important and indispensable as the executive, thereby dragging it into partisan politics.
“The PDP avers that constitutionally, the Chief Registrar, who is not a judicial officer, cannot by a state law be vested with the authority to perform functions inextricably connected with judicial duties, such as the assignment of cases to judicial officers.

“The PDP observes that the amendment which seeks to make an ass of the law also seeks to unconstitutionally appoint the Chief Registrar of the State High Court as the Chief Judge in the circumstances described in the said amendment. Can a Chief Registrar therefore query a Judge who refuses to obey his instructions pursuant to the powers of the Chief Registrar under the said amendment?”

He therefore maintained that the law was in violation of the 1999 Constitution and an abuse of the rule of law.
“The PDP also seeks explanation on the situation in which the Public hearing to amend the High Court Rules was fixed to hold on Wednesday, June 11, 2014, same day members of the House of Assembly loyal to Governor Amaechi were at the High Court gate protesting; same day a purported Public Hearing was said to have taken place, same day report was submitted, same day bill passed and same day it was signed into law,” he said.

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