Hope
Azinuchi Azeru-Oziri
The
National Judicial Council (NJC) under the chairmanship of the Chief Justice of
Nigeria, Tanko Muhammad, had at its 94th meeting held on 17 and 18
December, 2020, considered the list of candidates presented by its Interview
Committee and resolved to recommend Hon. Justice Simeon C. Amadi for the
position of Chief Judge of Rivers State to the Governor of Rivers State, His Excellency,
Chief Barr, Nyesom Ezenwo Wike. The release of the name of Hon. Justice Simeon
C. Amadi as the next Chief Judge of Rivers State upon the retirement of Hon.
Justice Adama Iyayi Lamikanra has raised a lot of reactions from lawyers,
political analysts, human rights activists, local communities and tribal
groups.
Hon. Justice Joy Akpughunum of the Rivers
State High Court would be the most senior judge upon the retirement of the
current Chief Judge. It has been the tradition in the history of the legal
profession to appoint the most senior Judge or Justice to the position of Chief
Judge, President of the Court of Appeal and Chief Justice of Nigeria as the
case may be. However, the primary law that regulates the appointment of judicial
officers is the 1999 Constitution of the Federal Republic of Nigeria as
amended.
Section 271 of The 1999 Constitution (as amended) is
the grundnorm and only law that regulates the appointment of a Judge and Chief
Judge of a State.The above section provides as follows:
(1) The appointment of a person to the office of
Chief Judge of a State shall be made by the Governor of the State on the
recommendation of the National Judicial Council subject to confirmation of the
appointment by the House of Assembly of the State.
(2) The
appointment of a person to the office of a judge of a High Court shall be made
by the Governor of the State acting on the recommendation of the National
Judicial Council.
(3) A
person shall not be qualified to hold office of a judge of a High Court of a
State unless he is qualified to practice as a legal practitioner in Nigeria and
has been so qualified for a period of not less than ten years.
(4) If
the office of Chief Judge of a State is vacant or if the person holding the
office is for any reason unable to perform the functions of the office, then
until a person has been appointed to and has assumed the functions of that
office or until the person holding the office has resumed those functions, the
Governor of the State shall appoint the most senior Judge of the High Court to
perform those functions.
In summary, the following are the criteria for the
exalted position of a Chief Judge:
1. The
appointment shall be made by the Governor of a State.
2. The
recommendation for such appointment must emanate from the National Judicial
Council.
3. The
appointment is subject to confirmationby the House of Assembly.
4. The
person must be qualified to practice as a legal practitioner in Nigeria.
5. The
person must be qualified to practice as a legal practitioner in Nigeria for a
period not less than ten years.
The provisions of Section 271 of the Constitution is
unambiguous, as such, the literal interpretation of a status would do. Any
attempt to apply the mischief rule to the interpretation of the above section,
would amount to guess work. The interpretation of the Constitution should be
governed by the real intent of the law makers. It is not a mistake or a
typographical error that the phrase ‘most senior judge’ was not stated in
Section 271 (1). Seniority at the Bar, a tradition in the legal profession
cannot override the provisions of the Constitution because by virtue of Section
1, The Constitution is supremeand its provisions shall have binding force on
all authorities and persons throughout the Federal Republic of Nigeria.
Motive
of the Governor of Rivers State is irrelevant so long as he confined himself to
the provisions of the law. In Nigeria legal jurisprudence, motive has never
been considered an issue. The issue of appointment of a Judge or Chief Judge is
purely a constitutional matter; therefore, motive, sentiment and politics have
little or no role to play.
Recommendations
1. The
Constitutions should be amended to incorporate the long standing tradition or
slogan of the legal profession called “Seniority in the Bar”.
2. Power
to appoint a judicial officer should be vested in an independent body.