Thursday, 3 April 2014

Amaechi Defy NJC Directive, Insist On Suspended Chief Judge

As the crisis rocking the Rivers State judiciary worsens, the state government has said it rejects the suspension of the state Chief Judge, Justice Peter Agumagu, by the National Judicial Council (NJC).
It described the suspension as illegal and unconstitutional, insisting that Agumagu remains the substantive Chief Judge of the state.
The NJC had last week suspended Agumagu as a judicial officer and gave him four days to give reason why he should not be removed.
Addressing journalists in Government House, Port Harcourt  yesterday on the position of the state government, the state Attorney General and Commissioner for Justice, Mr. Worgu Boms, accused the NJC of constituting itself into a court.
According to Boms, “The position of NJC which is very unfortunate, gives equally unfortunate and misleading impression to public that the appointment of the 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.  NJC wants the world to believe that Justice Agumagu 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 the State and in particular, the Justice D.W. 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 Customary Court of Appeal, could not be allowed to cross over to become the state Chief Judge.”
Explaining the issues involved in the impasse, Boms said: “For the records, Justice Agumagu is senior at the Bar and on the Bench to Justice Okocha. Following the advice from the state Judicial Service Commission  (JSC) to the NJC listing Justice Agumagu as N0 1 and Justice Okocha N0 2 as persons for possible consideration for recommendation for the appointment, to the substantive position of Chief Judge, the NJC wrote to His Excellency, the governor of the state, that of the two candidates, recommended to it by the state JSC that even though Justice Agumagu is first on the list, he was being rejected because His Lordship was not the most senior judge of the High Court and could not cross over from the Customary Court of Appeal to become the Chief Judge.
“Only Justice D.W. Okocha could thus be qualified for appointment based on the NJC’s twin doctrine of seniority and non-crossing over. Needless to say, these twin qualifications of most senior judge and non-crossing over are creations, not of the constitution that prescribes only 10 years’ post call as qualification for the office of the Chief Judge, but of the NJC, which sadly, has now transmogrified from being a recommending body to a law making body.”
He noted that the issues involved in filling the vacancy of the chief judge were not peculiar to the State as some states had passed or were passing through the same process.
The commissioner however, wondered why the NJC did not write to judges in those states “to intimidate them on the matter and to fetter their conscience."
“If the appointment of Chief Judge of the state were to begin and end with the NJC, then perhaps, there would be no problems with its preferred candidate. Unfortunately, the constitution provides that four institutions – the state JSC, the NJC, the governor and the state House of Assembly - must all participate for a candidate to become the Chief Judge. In the NJC’s view, however, its contribution to the process must be the only valid and final one, otherwise, a Judge must lose his appointment as not even a court pronouncement on the matter will it respect. This is the heart of the seemingly intractable succession crises to the office of the Chief Judge, not only in Rivers State, but also in other states where the issue is yet to be resolved.”

Boms insisted that there was no law that vests the NJC with the power to declare acts unconstitutional and that what the council did to Agumagu was a usurpation of judicial powers and functions.
“The NJC or indeed, any council for that matter, has no powers under any law to declare the action of the state governor, in this case, the action of the governor of Rivers State in the appointment of the chief judge of the state, unconstitutional. Only a court vested with the requisite jurisdiction can validly do so and the NJC, no matter how eminent its members are, is not a court of any cadre in Nigeria. It is like any of the several commissions established under the same Section of the 1999 Constitution of the Federal Republic of Nigeria,” Boms stated.
He insisted: “The NJC does not have the power to appoint or dismiss a judge. It cannot even suspend a judge under the colour of discipline. It can only recommend such to either the governor in the case of state judges, or to the president, in the case of federal judges.
“This is the law and the NJC has also interpreted its disciplinary action of suspension along the line of recommendation to the appropriate authorities when, for example, it found it necessary to discipline the then President of the Court of Appeal, it was by way of recommendation to the president who approved the recommendation and thus that justice was suspended. When, subsequently it saw the need to recall the suspended justice, it did not do so directly, it similarly recommended to the President to effect the recall.
“There are other examples including the recommendation for the he said the NJC was setting a dangerous precedent as “it means that any judge of any court can, without being heard, for any reason, just stop functioning as a Judge in the name of suspension by the NJC.”
Boms stated that the Rivers State Government wrote NJC to inform the council that its twin doctrines for rejecting Agumagu were unknown to the law in the appointment of chief judge under the Constitution.  He said the state also told the NJC of its rejection of the recommendation of Okocha.

He disclosed that when NJC stuck to its gun on the recommendation of Okocha, the Rivers State Government and the state Judicial Commission had to file a suit before the Federal High Court sitting in Port Harcourt. The NJC (1st defendant) entered appearance and Justice Okocha applied to join and was joined as the 2nd defendant.
He recalled that in its ruling of March 19, the Federal High Court agreed with the state government and the state Judicial Commission and ruled in their favour.

He said the court ruled in favour of the state government and the state Judicial Service Commission and said Agumagu remained the candidate to be recommended to the state governor for appointment as chief judge.
He said based on the judgment, the NJC had no further role to play in the matter in the face of the restraining order and the holding that Agumagu is the most qualified candidate and who ought to be recommended by the NJC.

“Based on this premise, Governor Rotimi Amaechi of Rivers State, appointed Agumagu and the state House of Assembly screened him and he was successfully sworn in as the seventh Chief Judge of the state,” he said.

According to Boms, “By wielding the big stick against an innocent judge and purporting to use administrative measures to truncate the outcome and fruit of a judicial process to which it submitted and participated actively in and without appealing thereafter, the NJC is using its power inappropriately and is unwittingly contributing, in an eloquent form, to the ridiculing of the court system which it should be promoting and respecting.”

“The Rivers State Government rejects the NJC’s unconstitutional and contemptuous stance on this matter and states categorically that only a court of competent jurisdiction can declare its actions and activities unconstitutional and certainly not a council, a committee, a commission etc, howsoever described when such bodies, no matter their nomenclature and the eminence of their membership, are subject to the law of the land and the court.”

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