LAW Rivers CJ’s sus­pen­sion: Mat­ters aris­ing

Daily Trust - - FEATURE - By Ade­lanwa Bamg­boye

The Chief Judge (CJ) of Rivers State, Jus­tice Peter Agu­magu was sus­pended at the end of the 10th emer­gency meet­ing of the Na­tional Ju­di­cial Coun­cil (NJC) which held re­cently in Abuja on the ground that his ap­point­ment by the state gover­nor was il­le­gal and did not com­ply with the pro­vi­sions of sec­tion 271 of the 1999 Con­sti­tu­tion.

For­mer Pres­i­dent of the Nige­rian Bar As­so­ci­a­tion NBA and mem­ber of the NJC, OCJ Okocha SAN said over the weekend that there was noth­ing il­le­gal in the sus­pen­sion of Jus­tice Peter Agu­magu by the NJC.

The for­mer NBA Pres­i­dent said that the judg­ment of Jus­tice Lambo Akanda did not au­tho­rize or man­date the Rivers State gover­nor to ap­point or swear in Agu­magu with­out a rec­om­men­da­tion from the NJC.

Ac­cord­ing to OCJ Okocha, “as it were, and in so far as Jus­tice Agu­magu was at the ma­te­rial time the Pres­i­dent of the Cus­tom­ary Court of Ap­peal of Rivers State, the NJC had and still has the plen­i­tude of power to ex­er­cise dis­ci­plinary con­trol over him.

‘My hum­ble sub­mis­sion is that it was in fur­ther­ance of the afore­said pro­vi­sions of the con­sti­tu­tion that the NJC con­sid­ered a re­port that Jus­tice Agu­magu had been ap­pointed, con­firmed and sworn-in as the CJ of Rivers State on the 18th March, 2014, and there­upon de­cided to in­ves­ti­gate the mat­ter, and duly queried Jus­tice Agu­magu, and also sus­pended him from of­fice as a Ju­di­cial Of­fi­cer, pend­ing the out­come of in­ves­ti­ga­tions afore­said.

“It seems to me un­de­ni­able that the de­ci­sion to in­ves­ti­gate, the query and sus­pen­sion as

Jus­tice Aloma Mariam Mukhtar, CJN afore­said are all within the pow­ers of the NJC, and the ar­gu­ment of Femi Falana, that the NJC has no power to sus­pend Jus­tice Agu­magu is un­sus­tain­able,” OCJ said.

On whether or not the NJC was right when it placed Agu­magu on sus­pen­sion be­fore is­su­ing him a query to de­fend his ac­tion, an Abuja base le­gal prac­ti­tioner, Alasa Ismail, said “we are of the view that the de­ci­sion is legally sound on the author­ity of the Pub­lic Civil Ser­vice Rules.

Rules No. 030406 of the Pub­lic Civil Ser­vice Rules (2008 Edi­tion) as con­tained in the Federal Repub­lic of Nigeria Of­fi­cial Gazette No.57 of Au­gust 25, 2009, vol.96 (Govern­ment No­tice N0.278) states: “sus­pen­sion shall ap­ply where a prima fa­cie case, the na­ture of which is se­ri­ous, has been es­tab­lished against an of­fi­cer and it is con­sid­ered nec­es­sary in the pub­lic in­ter­est that he/she should forth­with be pro­hib­ited from car­ry­ing out his/her du­ties pend­ing in­ves­ti­ga­tion into the mis­con­duct.’’

“As a CJ, he sits at the top of the state’s ma­chin­ery for dis­pens­ing jus­tice. Great in­jus­tice will be done if he is al­lowed to il­le­gally act as CJ.

“As the CJ of a state, his re­spon­si­bil­ity in­cludes post­ing judges to dif­fer­ent di­vi­sions of the court and as­sign­ing cases to judges in­clud­ing him­self, in other words, he will pre­side over some mat­ters too.

“But it is trite law that ‘you can’t place some­thing on noth­ing. It fol­lows that any ac­tions he takes while act­ing il­le­gally are li­able to be struck down as a nul­lity. What is at stake is more than a mere ap­point­ment. NJC had to act to stop a catas­tro­phe,” Alasa said.

Ahu­raka Isah, Me­dia Aide to the CJN, said that the NJC viewed the do­ing of an un­con­sti­tu­tional act (in the in­stant case, ac­cep­tance of the post of a CJ with­out rec­om­men­da­tion by NJC) as a se­ri­ous breach of the con­sti­tu­tion. The coun­cil is also of the view that it is in the pub­lic in­ter­est to sus­pend him.

Go­ing by the pro­vi­sion of sec­tion 271 (1) of the 1999 Con­sti­tu­tion it is glar­ingly clear that the NJC has been given a role to play in the ap­point­ment of Chief Judges (CJs) of the States where the sec­tion states:

“271 (1) The ap­point­ment of a per­son to the of­fice of a 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.

It can be seen here that al­though the gover­nor of a state has been vested with the power to ap­point the CJ of his own state, that power is not ab­so­lute as the gover­nor has to share the power with the NJC in rec­om­mend­ing suit­able per­sons and the State House of As­sem­bly in con­firm­ing the ap­point­ment.

It is in the spirit of the con­sti­tu­tion in en­sur­ing checks and bal­ances be­tween the three arms of govern­ment that the role of the gover­nor in ap­point­ing and ex­er­cis­ing dis­ci­plinary con­trol over the chief judge of his state is sub­jected to the par­tic­i­pa­tion of the NJC and the House of As­sem­bly of the state in the ex­er­cise to en­sure trans­parency and ob­ser­vance of the rule of law.

How­ever, Rivers State Com­mis­sioner for In­for­ma­tion and Com­mu­ni­ca­tions, Ms. Ibim Se­meni­tari, said that the NJC’s de­ci­sion on Agu­magu is un­prece­dented, un­law­ful and con­tra­venes the clear pro­vi­sions of the Nige­rian con­sti­tu­tion and the es­tab­lished tenets of fed­er­al­ism.”

Ac­cord­ing to her, Jus­tice Agu­magu’s ap­point­ment as Chief Judge of Rivers State ful­filled all the pro­vi­sions as pre­scribed by the con­sti­tu­tion of the federal repub­lic, the Rivers State Govern­ment fur­ther.

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