Chiemeka ADINDU, Calabar
As the judicial tussle in Cross River state continues, there are strong indications that the National Judicial Council, NJC, under the Chairmanship of the Chief Justice of Nigeria, Justice Tanko Muhammad, may not yield to Governor Ben Ayade’s choice of Justice Maurice Eneji.
The indications are strong as the NJC has always rejected the suggestion of the governor, showing that they are not bent on altering the provision made by the constitution of the Federal Republic of Nigeria on the issue on ground. On the other hand, the Cross River State House of Assembly, CRSHA, has remain resolute not to confirm the recommendation of Justice Akon Ikpeme by the NJC.
The NJC has on several occasions asked Ayade to appoint Ikpeme who is the most senior judge in the state as the substantive chief judge of the state.
This has been turned down by the governor and the Cross River State House of Assembly, on the grounds that she was not an indigene of Cross River state which they said will pose a “security threat” if she is sworn in as the Chief Judge of the state.
Section 42 of the 1999 constitution as amended reads;
(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic
groups, places of origin, sex, religious or political opinions.
Recall that Governor Hope Uzodinma recently swore in Justice Ijeoma Agugua who is from Anambra state as Chief Judge of Imo State. It is also worthy to note that the pioneer Chief Judge of Cross River State, Sir Darnley Alexander was from the West Indies.
Not only that, the NJC has unanimously agreed that Justice Ikpeme could not be a security risk considering the fact that all security agencies in the country had cleared her, giving an outright disapproval of all the charges/allegations against her. What a strong indication that the council is not likely to yield to the confirmation of Justice Eneji.
One question one may ask is who appoints a Chief Judge and Judges of the High Court of a state? And how is the process done? Chapter 7, Part 2, Section 271 of the constitution has an answer for this and below is what it states;
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 person 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.
During the last plenary, Chairman of the House Committee on Judiciary, Public Petition, Public Service Matters and Conflict Resolution who represents Calabar Municipality, Efa Nyong Esua, feared that the rejection of Ikpeme for the second time was not in the best interest of the State.
He said the contention was that since the NJC could not overrule itself, the House should not also overrule itself. He noted that the implication of the action was that the Judiciary in Cross River state had been thrown into confusion. He also pointed out that there was no how Eneji would not be sanctioned by the NJC at end of the whole crisis.
On his part, Chairman of Nigerian Bar Association, Cross River branch, Dr. Paul Ebiala said the extension of Eneji was in accordance with the provision of the constitution as far as there is an application for extension as it has happened in some other states of the federation. He said there might not be another extension for him after this one even though the constitution did not expressly state that.
He however hinted that the state could capitalize on that lacuna on the constitution and continue to request for extension.
In sequential order, the first four most senior judges of the state are Justices Akon Ikpeme, Maurice Eneji, Eyo Ita and Sam Anjor and Ikpeme has served on acting capacity while that of Eneji was extended to September 2, 2020.