Purported Appointment of Hon. Justice Agumagu as Rivers State Chief Justice Very Flawed and Unconstitutional: the NJC Got it Right this Time!

 Introduction
On March 18, 2014, the Rivers State government, purportedly acting on the decision of Akanbi J, of the Federal High Court in Siut No. FHC/PH/CS/421/2013 Governor of Rivers State & 2 Ors v NJC and Anor, “swore in” Hon. Justice P.C. Agumagu as the Chief Judge of Rivers State. Prior to this time, Justice Agumagu had “acted” as Chief Judge of Rivers State, having been “appointed” to do so by the Governor from August 20, 2013 up till November 19, 2013. Section 271(4) of the 1999 Constitution provides that where the office of Chief Judge becomes vacant and a substantive Chief Judge has not yet been appointed, the governor can appoint the next most senior judge of the high court to act for a period of three months.

The facts
Prior to the retirement of the CJ of Rivers state on August 20, 2013, the Rivers State Judicial Service Commission (“JSC”) initiated the process of appointing a new Chief Judge by forwarding the names of two nominees to the National Judicial Council (“NJC”); these nominees were Justices P.N. Agumagu and Daisy Okocha. Justice Agumagu at the time was the President of the Rivers State Customary Court of Appeal (CCA) while Justice Okocha was a Judge of the High Court. The JSC however, made known its preference for Justice Agumagu.

The NJC deliberated on these nominees subsequently and, by a letter dated 22, July 2013, communicated its rejection of Justice Agumagu’s nomination and, recommended Justice Okocha for appointment as Chief Judge saying that Justice Okocha was the most senior High Court judge of the state at the time.

Notwithstanding the NJC's decision, the Governor of Rivers State on August 20, 2013, swore in Justice Agumagu as the acting Chief Judge of Rivers State pursuant to Section 271(4) of the 1999 Constitution. Irked by the Governor's action, a group called Kengena Unity Forum approached a Federal High Court (FHC) in Port Harcourt, challenging the constitutionality of Justice Agumagu's appointment as acting Chief Judge on the basis that Justice Agumagu was not the most senior High Court Judge at the time. They insisted that Section 271(4) of the 1999 Constitution forbade the Governor from appointing Justice Agumagu to act in that capacity. On February 18, 2014, the FHC nullified the appointment of Justice Agumagu as the acting CJ and directed the State Governor to comply with the relevant provisions of the 1999 Constitution. However, Justice Agumagu had indeed served out the period allowed by the Constitution in an acting capacity, i.e. three months, which expired on November 20, 2013. 

The Governor wrote to NJC on September 23, 2013 appealing that the Council reviews its decision not to recommend Hon. Justice Agumagu, but the NJC stood its ground. This prompted the Rivers Attorney General (Mr Wogu Boms Esq) and the State's Judicial Service Commission to file Suit No. FHC/PH/CS/421/2013 before the Federal High Court sitting in Port Harcourt asking for a judicial construction of Section 271 of the Constitution relating to the appointment of a Chief Judge and also to determine whether Justice Agumagu was the candidate to be recommended and forwarded by the NJC to the Governor for appointment as CJ of Rivers State. On March 18, 2014, Justice Akanbi of the Federal High Court delivered his judgment in the case giving affirmative answers to the questions. (Download the judgment here)

In almost lockstep timing with the decision, the Governor, on the same day, and on the confirmation of the Rivers State House of Assembly swore in Justice P.C. Agumagu as the 7th Chief Judge of Rivers State. The Governor, through a statement issued by the State Attorney General, defended his actions, saying that "equity assumes as done that which ought to be done!" (Click here to see the Press Statement) There is an appeal pending on this matter.

One week later, on March 26, 2014, the NJC suspended Justice P. Agumagu from office as a judicial officer and issued him a query to answer why he should not be dismissed. The NJC claimed that it took this action in the exercise of its powers under Paragraph 21(d) of Part 1 of the Third Schedule of the 1999 Constitution. The Council took this decision at its 10th emergency meeting on Wednesday, March 26, 2014, where it observed that due process was not observed in swearing in Justice Agumagu and that the appointment violated Section 271(1) of the Constitution. The NJC noted that it did not, at any time, make any recommendation to the Governor of Rivers State that Agumagu J, President of the Customary Court of Appeal be appointed the substantive CJ of Rivers State. Based on the above, the NJC made the following resolutions:
i. That the NJC does not and will not recognise Justice P.N.C Agumagu as the CJ of Rivers State.

ii. That the general public and all concerned in the matter, particularly the Governor of Rivers State, the Rivers State House of Assembly, the Judiciary in Rivers State, be notified and informed that the NJC will not deal with Justice Agumagu as the CJ of Rivers State.

Appointment of CJs under the 1999 Constitution (as amended)
Under the Third Schedule, Part 1, Paragraph 21(c) of the Constitution, four institutions are involved in the appointment of the Chief Judge of a state, namely, the State Judicial Service Commission (SJC), the National Judicial Council, the State Governor and the State House of Assembly. To limit absolutism in any one body, the Constitution creates a 4-prong process beginning with the State Judicial Service Commission sending a list of shortlisted candidates for the position of Chief Judge to the National Judicial Council. Next, the NJC recommends a selected candidate to the Governor for appointment as Chief Judge. Afterwards, the Governor appoints the Chief Judge and sends such appointment to the State House of Assembly for confirmation and, lastly, the Governor, after confirmation of the candidate, swears in the candidate.(Section 271(1)).

The constitution contemplates a progressive, consensus-achieving process involving all the institutions involved in the appointment of a substantive Chief Judge of a state. The wording of S 271 (1) of the constitution can be construed to expect all parties to confer with each other until they come to an agreement on a candidate. Where this consensus is missing, whether because political agendas weigh heavily on the process, or there are fears about the political “loyalty” of the nominee, the appointment process can easily be stultified, kept in abeyance or be long-drawn out. For example in Abia State, it took close to three years, (from 2011 to 2014) before a substantive Chief Judge was appointed for the state. In that time, the house of assembly rejected the nomination of the most senior high court judge, the governor appointed three judges of the High Court in turns to act as Chief Judges pending the resolution of this issue among the appointing authorities. The governor made these appointments with the approval of the NJC and attributed the delay in appointing a state substantive Chief Judge to the need to follow due process in compliance with the constitution of Nigeria. (click here for the full story)

The Legality of Justice Agumagu's "Appointment"
Justice Agumagu's so-called appointment as the substantive CJ of Rivers State was based on the judgement delivered by a Federal High Court in Governor of Rivers State & 2 Ors vs The National Judicial Council & Hon Justice Diasy Okocha. In the judgement, the court answered all the questions put forward to it by the Plaintiffs in their favour. In particular, the court declared that the Governor had the right to reject the candidate recommended to him for appointment by the NJC. It also said that Justice P.C. Agumagu is a fit and proper nominee and remains the candidate to be recommended to the Governor for appointment irrespective of which court he came in from. The Court further made an "order restraining NJC acting by itself or through its council members, servants, agents and privies from carrying into effect the decision and recommendation in the said letter of 22nd July 2013 or acting upon it in any way or manner detrimental to the interest of the Plaintiffs or acting in a way and manner suggesting an insistence on the candidate it recommended by its letter of 22nd July, 2013.'' The decision referred to was NJC's refusal to recommend Justice Agumagu on the basis that he was the president of Customary Court of Appeal and not the most senior judge of the High Court Bench of Rivers State. The recommendation referred to is that NJC recommended Justice Okocha instead of Justice Agumagu.

It was based on this judgment that the Governor of Rivers State purported to swear in Justice Agumagu as the Chief Judge of the State. The Governor defended the act of swearing-in Justice Agumagu as Chief Judge of the State on the basis that this was what the court decided. However, the question is: what did the court decide, and what did it restrain? Did the "restraining order" take away the constitutional power the NJC had to recommend a candidate to be appointed Chief Judge to the Governor? No! Justice Akanbi decided that NJC should not have discountenanced the preference of the Rivers State Judicial Service Commission for Justice P. Agumagu and that Justice Agumagu was entitled to be recommended [by the NJC] to the Governor for appointment as Chief Judge of Rivers State. The Court declared that Justice Agumagu is the right candidate to be recommended to the Governor for appointment as Chief Judge. This is, we think, the farthest the judgment went.

So, was the Governor, by this judgement, entitled to appoint a Chief Judge without NJC's recommendation? Again, no! The most the judgment could have done is to trigger a fresh round of inter-agency communication on the subject, with the NJC obeying the court's judgment not to insist on its interpretation of the Constitution. The judgment did not make any consequential orders. It did not ask the Governor to appoint the JSC's or his preferred candidate without more, or to jettison the NJC in the process. The court restrained the NJC from carrying into effect its decision that Justice Agumagu was ineligible to be considered for the position of Chief Judge.

The court's judgment, no doubt, was entitled to be obeyed unless it was itself stayed; yet, it offered no basis for the rash and rushed action to swear Hon. Justice Agumagu into office without the NJC's recommendation or re-involvement in the process. The Governor should have made representations to the NJC based on the judgment and given the NJC the opportunity to both comply with the judgment and exercise its own mandate before taking any further steps in the matter. Neither the Governor nor Hon. Justice Agumagu gave the NJC the opportunity to respect the judgement.

In purporting to appoint Justice Agumagu as substantive Chief Judge, the Governor acted virtually unilaterally, and brushed aside mandatory constitutional stipulations governing the process, as well as undermined the role and powers of the NJC in that regard. It is trite law that 'Where a statute has prescribed the mode of performing an act, only that mode of performing the act competently is contemplated otherwise the act will be a nullity'. Abubakar v Nasamu (No. 2) [2012] 17 NWLR 523 at 577. For a valid appointment to the office of Chief Judge, no party conferred with constitutional duties in the process can be sidelined, least of all, the NJC. Executive actors cannot override the pivotal responsibilities of a body like the NJC in the appointment process. The NJC is key to both the appointment and disciplinary process of judicial officers as judicial decisions have reaffirmed.

Hon. Justice Agumagu's Failures
It is disappointing that Hon. Justice Agumagu would offer himself to be sworn-in on March 18, 2014, notwithstanding the frailty of the process that led up to the outcome and its doubtful constitutionality. We expected more, particularly given the NJC's earlier admonition to all Judges of the Rivers State Judiciary not to accept any offer for the position of Chief Judge, if approached. We do not think that Hon. Justice Agumagu exercised the kind of circumspection, dignity and restraint needed in the circumstance to protect the independence of the Judiciary and prevent the National Judicial Council from being undermined and overrun by the Executive. Yet, the NJC has been given delicate and pivotal responsibilities by our Constitution to protect the integrity, autonomy and independence of the Judiciary. Justice Agumagu's earlier acceptance of the position of acting Chief Judge of the State from August 20, 2013 to November 2013 is just as troubling, given the clear constitutional language identifying the eligible Judge to hold that acting position

NJC Got it Right, this Time Around
This time, we think the NJC measured up to scratch. The Council may not always have done a brilliant or even respectable job of exercising its mandate vigorously over many years, and has floundered time and time again. In the past, the Council failed to stop former Governors who wanted particular Chief Judges over those it recommended (Chimaroke Nnamani for example who preferred Chief Judge I. Umezulike to Justice Ralph Agbo) or Chief Executives who wanted to remove their Chief Judges (Governor Ladoja of Oyo State who removed Hon. Justice Isaiah Olakanmi as Chief Judge, Gov. Abdulfatah Ahmed of Kwara State that removed Justice Elelu-Habeeb). However, when the Council gets it right, it needs to be supported.

The principled position of the NJC in this case gives hope that it may be stepping up to the plate and taking its place and this would help it regain respect among other branches which, so far, may have mostly perceived it as being inert, pliable and easily compromised. It will also earn respect from Nigerians, many of whom have been disappointed by the Council's poor record of performance over time. The Council's actions in this case will also help deter Judges from working hand in glove with Federal or State Chief Executives to undermine judicial independence and the integrity of the judicial branch. We support the position the NJC has taken on the "appointment" of Hon. Justice Agumagu and urge Hon. Justice P.N. Agumagu to relinquish that office now!

JOJ is researched and produced with the support of National Endowment for Democracy(NED) and Open Society Initiative for West Africa(OSIWA). However, opinions expressed in this journal do not necessarily reflect the positions of our partners.