Rivers State Judiciary palaver: Is NJC rocking the boat?

The majority of the lawyers are now roaming about, hungry and may be angry because the administrative section of the court where they could have engaged in preparation of documents is equally affected.The masses in Rivers State too have not been saved from the unnecessary faceoff between the executive and the NJC.Chairman, NBA Rivers State […]

The majority of the lawyers are now roaming about, hungry and may be angry because the administrative section of the court where they could have engaged in preparation of documents is equally affected.
The masses in Rivers State too have not been saved from the unnecessary faceoff between the executive and the NJC.
Chairman, NBA Rivers State branch, Dennis Okwamkpa in an interview with Daily Trust over the weekend said “we are in trouble; it’s a calamity, a disaster, the system has failed completely, it is not just for lawyers but for the masses who want to get probate, wills, and people at the detention facilities, it portends great danger.”
This development is due to what many term the muscle flexing by the Rivers State government.
The crisis rocking the state judiciary started shortly after the retirement of Justice Ichechi Nwenenda Ndu as the Chief Justice (CJ) of the state in August, 2013. Many people who attended Justice Ndu’s valedictory ceremony in Port Harcourt, had anticipated that Governor Amaechi, based on NJC recommendation, was going to announce Justice Daisy Okocha, as the acting CJ of the state. But, their expectation was cut short, when the next day, the governor announced Justice Peter Agumagu, who was then the President of the Customary Court of Appeal (PCCA), to fill the position.
The NJC preferred Justice Daisy Okocha as the CJ as against Justice Agumagu who is the choice of the Rivers State government.
The NJC under the chairmanship of the Chief Justice of Nigeria (CJN), Justice Aloma Mariam Mukhtar, in a swift reaction considered purported the appointment, confirmation and swearing-in of Justice Peter Agumagu as the substantive CJ of Rivers State on the 18th of March, 2014
In the course of deliberations on the matter, NJC noted that it is expressly provided in Section 271 (1) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as amended) that:-
“The Appointment of a person to the Office of the CJ 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;”
The NJC said that it did not at any time make any recommendation to the Governor of Rivers State that Agumagu, PCCA be appointed the substantive CJ of Rivers State. NJC therefore resolved that it does not and will not recognise Agumagu as the CJ of Rivers State and a query was issued to him to explain in writing 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 Nigeria.
If NJC is only to rubber stamp whatever list that has been forwarded by the SJSC, what is the point of bringing it to the council at all? Why not give the list straight to the governor as was done during the past republics.
Before now Agumagu was PCCA. The same process he went through – that is NJC recommended him to the state governor. The governor sent his name to the state assembly. He was confirmed and he came back to the governor and he was sworn-in as PCCA. But he did not go through the same process in respect of CJ Rivers State. Of course NJC did not recommend him. So his recommendation by the governor was unconstitutional, the screening by the state assembly was wrong because there was no proper appointment and his swearing in was unconstitutional because he did not go through the process in which he ought to have been recommended  by NJC for the appointment  by the governor.
According to Barrister Abbas Ibrahim, a source close to the NJC, the constitution is very clear: the NJC ‘shall’ recommend not ‘will’ or ‘May’ recommend any CJ, Grand Kadi where the system establishes the three offices separately. The word shall has imposed an obligation on the NJC, making it imperative that the NJC recommends. The governor shall appoint subject to confirmation of the State House of Assembly. After the recommendation of the NJC, the governor shall first  appoint and it is after the appointment that the appointee’s name is forwarded to the state house of assembly, while the state house of assembly will now go through the normal process of screening the appointee of the governor. If they screen the appointee and they are satisfied then they will confirm the appointment by the governor. In that case the governor is through with the process because he has acted on and relied on NJC’s recommendation in appointing the person that has been forwarded to him.
“So the NJC has never contested that it reserves the power, constitutionally, to appoint any head of court and there should be no mistake about that,” he said.
It was gathered that the mix up constitutionally is how the State Judicial Service Commission (SJSC) recommends the appointment of the head of court to the NJC. What does the constitution say over this?
“The SJSC shall advise the NJC on nominated candidate for appointment. SJSC composition and power are contained in Part 2, third schedule of the 1999 CFRN on powers and composition of some federal and state executive bodies created by the constitution.
The framers of the constitution have now gone further to specify the composition of such bodies and also their powers and functions. NJC and the State Judicial Service Commission (SJSC) are among them. That is why we don’t have quarrel between the executive, the judiciary and the legislature – as far as the powers of these bodies are concerned. If the constitution says the SJSC shall have powers to advise the NJC on suitable persons for nomination to the office of the CJ of the state.
Has the constitution provided any number of people the SJSC should forward?  It says suitable persons (not suitable person).  If you are advising, the NJC has the right to agree or to disagree. Otherwise, NJC would only be a rubber stamp to whatever list the SJSC submits.
Investigation reveals that the framers of the 1999 Constitution looked at what happened in the past 1st, 2nd and 3rd Republics between the FG and the state government with respect not only to appointing the state officials but including payment of their salaries. In the 1979 constitution, salaries and allowances of the judges were paid by the State Judicial Service Commission (SJSC) and state governments including the CJs.
The governor was practically the person in charge of SJSC because the CJ was his appointee and other members of the SJSC were also his appointees. Salaries were paid by him and, according to a saying, whoever pays the piper dictates the tune.
That was what happened also at the federal level when NPN was at the federal level and the Nigerian Peoples Party (NPP) in Plateau State. Any time funds were distributed from the federation account, because the National Party of Nigeria (NPN) was in control of the federation government it would not release the fund for Plateau State because of the allegation that the then governor, Chief Solomom Lar, was using the funds released to him for his state in playing politics in Gongola State then and therefore the judges were not paid.
Today, it is the FG that pays the salaries of all judges in Nigeria. The NJC pays their salaries with money from the FG. So if we argue that NJC does not appoint and therefore cannot discipline, who pays Agumagu’s salaries? Is it Rivers State government? The present system has been put in place to insulate all judicial officers in Nigeria. That is why we have staff of court under their umbrella body of JUSUN going on strike because the FG doesn’t pay their salaries but the judges do not go on strike because their salaries are paid promptly by the FG through the NJC. So the issue of politicking between state and FG is no longer there anymore.
Now if you say because the governor appoints then NJC has no right to discipline, the constitution says NJC shall recommend the removal of all judicial officers at the federal and state levels in Nigeria. Removal is twofold – termination and retirement. However, NJC shall also exercise disciplinary control over the judges. Where is the discipline here? NJC can warn a judge. NJC does not need a governor’s or SJSC’s approval to warn a judge. Where a judge does not sit on time in his court or enters the court hall by 11:00am, do Nigerians now expect NJC to go and recommend to the governor to warn the judge?
How did the NJC treat similar cases in the past? What has the NJC done that is a clear departure from the provisions of the constitution? Assuming Agumagu was recommended to the governor for suspension or removal, would the governor have acted on it?
Relying on S. 160 of the constitution that provides for the fashioning out of rules and regulations by the NJC and in carrying out its functions and powers, NJC now has its guidelines. This is so because Nigerians should not expect the constitution to be detailed because we will end up having huge volumes of books.
NJC is deriving its powers from S. 160 CFRN. Consequently, in the exercise of its constitutional powers, NJC decided 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.
The NJC further directed 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 appointment of CJ is a career progression appointment. A judge has waited for 20-30 years and when he was supposed to be CJ they now bring someone from outside to be the CJ.
Daisy Okocha has been in the Rivers State High Court of Justice while Agumagu was President Customary Court of Appeal.
If the constitution has not advocated seniority on the bench, what is the purpose of the constitution introducing some guidelines – S. 160.