AMAECHI’S NEW RIVERS STATE HIGH COURT (AMENDMENT) LAW 2014 IS UNCONSTITUTIONAL

In the night of June 11, 2014, Governor Chibuike Rotimi Amaechi signed into law the Rivers State High Court (Amendment) Law 2014. It was reported that the State House of Assembly had in the afternoon of that same day passed the bill and directed the Clerk of the assembly to immediately forward the bill to the Governor and the Governor assented to the bill and passed it into law the same day.

The House of 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 House of Assembly, presided over by the Deputy Speaker, Mr. Leyii Kwanee, sat at the Old Executive Chambers of Government House 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.

The passing of this bill into law is the culmination of the face-off between the National Judicial Council (NJC) and the Governor of Rivers State, Amaechi over the appointment of a substantive Chief Judge for the state following the retirement of the erstwhile Chief Judge. The face-off should not have degenerated into such a crisis if the parties concerned had followed the clear provisions of the constitution. The constitutional provisions governing such appointment are so straightforward that you don’t have to be a lawyer to interpret them correctly. They are to be found in section 271 (1), (2), (3), (4) and (5) of the 1999 Constitution which provides thus:
  

“271. (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 of a State 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.

(5) Except on the recommendation of the National Judicial Council an appointment pursuant to subsection (4) of this section shall cease to have effect after expiration of three months from the date of such appointment and the Governor shall not re-appoint a person whose appointment has lapsed.”

By the constitutional provision, the governor is certainly the person conferred with the power to appoint a Chief Judge for the state but this power is circumscribed by the clause that such appointment shall be made on the recommendation of the NJC. In other words, the Governor’s power is not absolute.

The whole brouhaha started when the President of the Rivers State’s Customary Court of Appeal, Justice P.N.C Agumagu was appointed as the acting Chief Judge for the State on the retirement of the former Chief Judge, Justice Iche Ndu.  That appointment quickly became contentious. The Constitution in Section 271 (4) (5) requires that only the most senior Judge of the High Court of the State may be so appointed to serve for a maximum period of 3 months pending the formal appointment of a substantive Chief Judge. It was contended that this honour belonged to Justice Daisy Okocha, the most senior serving judge of the Rivers State High Court but Amaechi insisted that Justice Agumagu’s choice was valid as he was not only the most senior serving judge in the entire Rivers State judiciary but had also been appointed as a High Court judge before being seconded to the State’s Customary Court of Appeal to help in establishing it –implying that he was at all material time a High Court Judge. The contention of the Rivers State Government was discoutenaced when Justice Lambo Akanbi of the Federal High Court declared on February 19, 2014 that the appointment was wrongful since, in its view, Justice Agumagu was not a serving High Court Judge at the material time in which the appointment was made.

This seeming cold war between the NJC and the Rivers State Government was carried into deciding who becomes the substantive Chief Judge of the State as the issue of an acting Chief Judge had been laid to rest by the judgment of Justice Lambo Akanbi. Continuing his confrontation with the NJC, the Rivers State Government through the state Judicial Service Commission nominated the contentious duo of Justice P. N. C. Agumagu and Justice Daisy Okocha to the NJC for recommendation for appointment into the vacant office of the Chief Judge of Rivers State. The NJC delisted Justice Agumagu’s name as a candidate and presented only Justice Daisy Okocha as its sole recommendation for the coveted position on the ground that he is not a High Court Judge. The Rivers State Government on its part, rejected Justice Daisy Okocha and subsequently approached the Federal High Court presided over by the same Justice Lambo Akanbi to overturn the NJC's recommendation of Justice Daisy Okocha. The Court ruled that the NJC’s so-called recommendation was wrongful as it fell below minimum common sense and constitutional requirements. In his words, the “governor is not a rubber stamp governor. The role of NJC is advisory; the governor has the right to accept or not; he is not a rubber stamp governor”. 

It has also been argued that the NJC is not a rubber stamp council to only recommend what the governor prefers. It is the duty of the NJC to ensure that only qualified and competent persons are appointed either as Judges or Chief Judges/Justices. It is also common sense that a Chief Judge of the High Court should be a Judge of that same High Court and not any other person.
It is trite law that the NJC cannot insist that Justice Okocha, though the most senior High Court Judge, be appointed as the substantive Chief Judge. It simply does not have such powers. The NJC never insisted, rather the Rivers State Government did not resubmit other names for recommendation for the vacant position of Chief Judge, it stuck to its guns that it must be Justice Agumagu or no one else. It was the Rivers State Government that submitted both names to the NJC for one of them to be recommended and if it held anything against Justice Daisy Okocha it shouldn't have submitted her name in the first place or maybe her name was added in other for the governor to say the race was not reduced to its choice, Justice Agumagu alone. Good judgment and exercise of discretion would have dictated that both candidates were dropped to avoid further controversies but the Rivers State Government thought otherwise. 

If the NJC’s constitutional duty is to recommend to the governor it follows therefore, that the governor may reject such recommendation. The State House of Assembly may also refuse to confirm the person appointed by the governor. In either case, the NJC will have to make fresh recommendation based on a resubmission of fresh nominees to it for recommendation for appointment by the relevant body. The NJC cannot insist that the person it had earlier recommended must be appointed likewise the Governor cannot make an appointment outside what was recommended by the NJC. The NJC cannot insist that Justice Diasy W. Okocha, though the most senior High Court Judge in Rivers State, be appointed as the substantive Chief Judge neither can Governor Amaechi insist that his preferred candidate, Justice P. N. C. Agumagu be made the Chief Judge after his nomination had earlier been rejected by the NJC.

So there was an apparent stalemate with the consequence that there was no acting Chief Judge and a substantive Chief Judge for Rivers State thereby putting litigants and their lawyers in a quandary. In order to obviate the apparent lacuna in the Rivers State Judiciary with the attendant hardship on litigants and lawyers, the Rivers State Government has now passed into law the said amendment to the State High Court Law which in effect assigns the role of an acting Chief Judge to the Chief Registrar of the State High Court.

This new law is however in conflict with section 271(4) of the Constitution of Nigeria, 1999 (as amended). Section 271 (4) is very clear. It says:

“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.”

As of today Justice Daisy W. Okocha remains the most senior Judge of the Rivers State High Court and only she alone can be appointed as an acting Chief Judge and to also carry out the functions of an acting Chief Judge for a period of three months after which the next most senior will take over ad infinitum until a substantive Chief Judge is appointed. A Chief Registrar definitely cannot perform this role of assigning cases to Judges of the Rivers State High Court and also carrying out other administrative functions as intended by this new law. This is a novelty in our legal jurisprudence and it must not be allowed to stay. This is nothing short of executive/legislative rascality.

In all its reaction, no reason was given for the rejection of Okocha’s nomination by the Rivers State Government. The fact that she is the sister of Chief O.C.J. Okocha, who happens not to be in the same political camp with Amaechi, does not make her inelligible for appointment as the chief judge or could it be that the woman is too independent minded to be trusted by Amaechi to do his biddings?

It may also interest us to know that this appointment of Judges based on a governor’s choice follows a pattern by some other states. There was the attempt by Governor Nyako of Adamawa State to make his wife who is a Judge in the Federal High Court the Chief Judge of the Adamawa State High Court but this move was checkmated by the NJC when it refused the nomination. The same move was also made to impose a Chief Judge in states like Osun and Kwara.

In all these, the more guilty party is Justice Agumagu who should have known better. He should have learnt from Justice Olubunmi Oyewole formerly of the High Court of Lagos State. When the Osun State governor, Raufu Aregbesola, chose him to become the Chief Judge of Osun on a transfer from Lagos State, the NJC rejected him and refused to recommend him for the job. When the governor insisted on inaugurating him at all cost, Justice Oyewole declined the offer and Justice Bola Ojo was sworn in instead on June 17, 2013. Justice Oyewole avoided confrontation with the NJC. Today, he is a justice of the Court of Appeal. Justice Agumagu should have stepped aside when his nomination was rejected by the NJC instead of being confrontational. Justice Agumagu’s conduct has in no small measure encouraged Amaechi in his executive rascality.