Rivers rejects NJC suspension of Justice Agumagu

Rivers State government has formally rejected the reported suspension of the Chief Judge of the state, Justice P.N.C Agumagu, by the National Judicial Council(NJC).

Last week, Justice Agumagu was suspended as a judicial officer by the NJC and was given four days to show cause why he should not be removed.

The Rivers State government further described the suspension as illegal and unconstitutional. As a result, it maintains that Justice Agumagu remains the substantive Chief Judge of Rivers State. Continue....

Speaking in a press conference yesterday, Rivers State Attorney General and Commissioner for Justice, Mr. Worgu Boms stated: “The position of NJC, which is very unfortunate, gives equally unfortunate and misleading impression to the public that the appointment of the Hon Justice PNC 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. The Hon Justice PNC Agumagu, the NJC wants the world to believe, 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 Rivers State and in particular, the Hon 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 Hon Justice Agumagu, then, President of the State’s Customary Court of Appeal, could not be allowed to cross over to become the State Chief Judge.

“For the records, Justice Agumagu is senior in Biology, at the Bar and on the Bench to Justice Okocha. Following advice from the State Judicial Service Commission 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 Judicial Service Commission, that even though Justice Agumagu is first on the list, that Agumagu 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 qualification of most senior judge and non-crossing over are creations, not of the constitution that prescribes only 10 years’ post-call as qualification to 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.

“We restate here that what is happening in Rivers State, with respect to filling the vacancy in the position of Chief Judge of the state, is not peculiar to Rivers State, as other states have passed and some are still passing through the process and in none of these did the NJC, as it is doing now in Rivers State, write to their Judges 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 Judicial Service Commission, 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 went further to state that no law vests the NJC with the power to declare acts unconstitutional and that what the council did to Agumagu is an usurpation of judicial powers and functions.

He stated: “The National Judicial Counci l(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.

“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 suspension of the judge who tried the EFFC case of pension embezzlement whose suspension was recommended only after he had been tried and found wanting. There has been no instance in the past where the NJC, without hearing from a Judge, or even after so hearing, goes directly to suspend a Judge. This precedent is dangerous 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. This is dangerous.”

Worgu Boms stated that the Rivers State government wrote NJC to inform the council that its twin doctrines for rejecting Justice Agumagu were unknown to the law in the appointment of Chief Judge under the constitution. The state government further rejected the rejection of Justice Agumagu on the grounds that the basis for his rejection cannot be founded in law since only 10 years post-call is the minimum constitutional requirement. And then rejected the recommendation of Justice Okocha.”

Worgu Boms disclosed that when NJC stuck to its gun on the recommendation of Justice 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.

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. Among others, the court ruled: “I find no reason from the letter written by the NJC to disqualify Agumagu, who, in my opinion, is qualified to be recommended to the governor for appointment as Chief Judge for the state. In the absence of any such reason, Agumagu remains the candidate to be recommended and forwarded to the Governor for appointment as Chief Judge of Rivers State.

“It is ordered that the 1st Defendant (the NJC) acting by itself or through its council members, servants, agents and privies are hereby restrained 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 (Rivers State government and the State Judicial Commission) or acting in a way and manner suggesting an insistence on the candidate(Justice Okocha) it recommended by its letter of 22nd July, 2013.”