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Tag: appointment

  • An employee’s appointment cannot be properly terminated over alleged criminal offence without trial

    An employee’s appointment cannot be properly terminated over alleged criminal offence without trial

    Summary of facts

    The Respondent (then Claimant) instituted the action leading to this appeal by a writ of summons against the Appellants (as Defendants) before the trial Court for wrongful termination of appointment, reinstatement and other ancillary orders. Parties duly filed and exchanged pleadings and after due consideration of facts and evidences before it, the trial Court entered judgment in favour of the Respondent to the effect that the purported termination of Respondent’s appointment with the Imo State Civil Service by a letter dated 13th February, 2002, Ref. No. CSC/P.248/1/5 written by the 1st Defendant is null, void, illegal and unconstitutional and therefore of no effect, same being a breach of contract. The court also ordered Respondent’s reinstatement as well as payment of Respondent’s salaries and all other entitlements due to him.

    The Appellants, being aggrieved with the whole of the judgment of the High Court of Imo State, initiated the instant Appeal.

     

    Issue(s) for determination

    The sole issue for determination as distilled by the Court for the just determination of the appeal is:

    “Whether the trial Court was right in its findings that the employment of the Respondent was wrongly terminated in the breach of his right to fair hearing”.

     

    Appellants’ argument

    The Appellants formulated two issues for the determination of the appeal viz: –

    “Issue No. 1: Whether (sic: from) the circumstances of this case there was fair hearing or the Respondent was accorded fair hearing by the Appellants or put broadly whether there was a breach of the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (Grounds 1 and 2).

    Issue No. 2: Whether the Claimant’s appointment was not properly determined by the Appellants.”

    While canvassing their issue one, Appellants submitted that fair hearing was accorded the Respondent. To them, having issued a query requiring the Respondent to give account of what happened and state his defence to an otherwise ignoble act, as well as constituting a staff audit panel which considered his response and also took into consideration the antecedent conducts of the Respondent before making recommendation to the Civil Service Commission before Respondent’s termination of employment, it cannot be said that the Respondent was not afforded the opportunity of being heard.

    Dwelling on their second issue, it is the position of the Appellants that the settled position of the law presently, is that an employer is not bound to keep an employee until he has successfully prosecuted the employee in a criminal Court. The Appellants said that in the instant case, what was alleged is a professional misconduct and not criminal offence, hence, the question of prosecution for a criminal offence does not arise. That the trial Court was therefore wrong to have held that the Respondent must first be prosecuted before his appointment could be terminated. He argued that this is not the position of the law and the case of Dangote v. CSC, Plateau State (1995) 7 NWLR (Pt. 408) 448 CA was cited in aid. It aslo referred to Chapter 4 Rules 04305 and 04306 of the Imo State Public Service Rules (Revised to 1st January, 2001) which provide that the CSC can implement the recommendation of a disciplinary nature made by a tribunal of inquiry set up by the Government and further pressed home their point by adding that “grave misconduct” which does not connote commission of crime, as in this case, was such that the CSC could dismiss the Respondent for without charging him to Court for prosecution.

    Placing reliance on the case of Abomeli v. N.R.C. (1995) 1 NWLR (Pt. 372) 451 CA which shows the various degrees of misconduct which give an employer liberty to dismiss an employee. They further argued that since there is no fixed rule of law defining the degree of misconduct which would justify a dismissal. That working against the deep interest of the employer clearly amounts to gross misconduct entitling the employer to peremptorily dismiss the employee, irrespective of the conditions of service and the case of A.C.B. Plc v. Nbisike (1995) 8 NWLR (Pt. 416) 725 CA was also cited in aid. The Appellants therefore submitted that the dismissal of the Respondent was proper.

     

    Respondent’s argument

    The Respondent on his own part formulated two issues for determination viz:

    “(1)Whether the termination of the respondent’s employment was in breach of his contract of service, the right of fair hearing and therefore illegal and unconstitutional. (This issue relates to ground 1).

    (2) Where the ground of termination of an employee who holds a contract with statutory flavour is a criminal allegation, whether the employer can rightly terminate him simply for grave misconduct without first prosecuting him in a criminal Court. (This issues (sic) relates to ground (sic) 2 and 3 and not 3 as stated by the appellants).”

    Before dwelling on the issues he formulated for the determination of the appeal the Respondent submitted that Appellants’ issue 2 should be struck out for being incompetent as it was not distilled from ground 3 in the notice of appeal and ground 3 from which the Appellants purported to have formulated the said issue 2, equally struck out as no issue has been formulated from it.

    On the first issue he formulated for the determination of the appeal, it is the Respondent’s stance that given the pleadings before the trial Court and the findings of the Court, both sides agreed that his (Respondent’s) appointment was an employment with statutory flavour, and is regulated by the Imo State Public Service Rules 2001 and the CSC Regulations 1994 of Imo State. He canvassed that by Rule 21 of the CSC Regulations 1994, the Personnel Management Board is the body empowered to consider appointments, promotions, and discipline of staff; while by Rule 04303 of the Public Service Rule 2001 and the procedure for the discipline of a staff as provided in Chapter 4 Rule 04303 is that where a recommendation of a disciplinary nature by a tribunal of inquiry set up by Government makes recommendation on an officer, the CSC shall not act on such recommendation until it has called upon the affected officer to reply to the allegation made against him by the tribunal of inquiry.

    It is the position of the Respondent that the fact that the State Staff Audit Panel (rather than the PMB as required by the terms of his employment) sat and moreso without hearing him and decided or recommended that his employment be terminated, coupled with the CSC’s implementation of the decision without calling on him to respond to the allegation in issue constituted lack of fair hearing. He canvassed further that statutory provisions in contract of employment are constructed strictly and that the effect of the nonobservance of the rules of natural justice or breach of the constitutional provision of fair hearing unequivocally is that the decision taken, is null and void, and unconstitutional and the cases of Olatunbosun v. NISER Council (1988) 3 NWLR (Pt. 80); FCSC v. Laoye (1989) 2 NWLR (Pt. 106) 652, 699 were cited in aid.

    Finally, the Respondent urged this Court to find the trial Court to be justified in nullifying the termination of his appointment on the ground of lack of fair hearing.

    In relation to the second issue he formulated for the determination of the appeal, the Respondent reinforced his position that he is not guilty of the offence/grave misconduct he is accused of, that his case is that no proper panel or body as far as his employment was concerned ever found him “guilty” or liable for any misconduct. That even where an employee was not charged to Court, but grave misconduct was alleged, the proper body must satisfy itself of the grave misconduct because the condition or contract of employment had stipulated that a PMB (and in his case) shall sit to hear the allegation.

    On Appellants’ position that no criminal trial is necessary before an employee could be terminated or dismissed, the Respondent submitted that this is not totally correct as it does not relate to instances where the employment is regulated by statutes or rules. That the applicable Public Service Rules required that he (Respondent) could be suspended, interdicted and charged to Court, before his appointment is terminated or he is dismissed therefrom. That a PMB has to sit to consider the matter and it is only when this had been done that the CSC will proceed to terminate or dismiss, as the case may be, if he was found guilty or culpable. That none of the procedures was complied with, in the instant case.

    It is also the position of the Respondent that the submission of the Appellants that the reason for the termination of his employment was not criminal but grave administrative wrong, is in itself wrong. This is because demanding and receiving gratification is an offence under Section 96 of the Criminal Code Law and by Section 36(4) of the CFRN 1999, it is only a Court that has jurisdiction to hear criminal allegations or charges; that can try him. That to rely on a criminal allegation and then terminate an employee’s employment without trial where the rules provide for such trial, in itself amounts to lack of fair hearing and the cases of Sofekun v. Akinyemi (1980) 5-7 SC 1; and Denloye v. Medical and Dental Practitioners Disciplinary Committee (1968) 1 ALL NLR 306 amongst others were cited in aid.

    The Respondent concluded by urging the Court to resolve this issue in his favour.

     

    Court’s findings

    On Respondent’s contention that issue 2 formulated by the Appellants should be struck out since same does not flow from ground 3 in the notice of appeal from which the Appellants have formulated it; the Court held that Appellants’ issue 2, even though might appear not to have been well couched, flows from ground 3 in the notice of appeal inasmuch as the issue brings to the fore the correctness or otherwise of the decision of the trial Court hence, the issue 2 stands.

    Before going into the determination of the appeal proper, the court then went on to distill its own issue for determination to be: “Whether the trial Court was right in its findings that the employment of the Respondent was wrongly terminated in the breach of his right to fair hearing”.

    The Court explained an ‘appeal’ to be “an invitation to a higher Court to review the decision of a trial Court to find out whether on the proper consideration of the facts placed before it, and the applicable law, that Court arrived at a correct decision”.

    The Court correctly pointed out that in an appeal, it is the duty of an appellant not only to formulate grounds of appeal that explicitly flow or arise from the judgment appealed against; and issues equally flowing from the said grounds, but also to advance convincing argument showing the manner in which the decision appealed is wrong and requires to be inferred with by the appellate Court.

    Having said that, the Court observed that none of the three grounds in the notice of appeal expressed appellants’ grouse(s) with the findings of the trial Court especially its seventh finding which is “That the Civil Service Commission (CSC) did not comply with the provisions of Chapter 4 Rule 04303 of the Civil Service Rules”.

    The court then reiterated the long standing position of the law that any finding of a Court that is not appealed against must be deemed as accepted by the parties and particularly the Appellants that initiated it. The case of Comptroller General of Custom v. Gusau (2017) LPELR – 42081(SC) was cited.

    Consequently, the Court said that the Appellants, having simply appealed against the decision of the trial Court without seeking for a reversal of the findings that formed the basis of the said decision are therefore essentially appealing on the perceived misapplication of the principles of law to the facts the trial Court accepted.

    The Court, while lauding the trial Court’s  finding in respect of Respondent’s  employment that the failure of the Civil Service Commission to comply with the provisions of Chapter 4, Rule 04303 of the Civil Service Rules and Rule 21 of Imo State Civil Service Regulations of 1994 makes the termination of the appointment of the claimant unlawful, pointed out that the trial Court ideally needed not to have considered the other aspect of the Respondent’s case that dealt with the question as to whether or not his appointment was properly determined.

    The Court wasted no time in stating that Appellants’ submission to the effect that the law has obliterated the distinction between a contract of employment with statutory flavor and one of pure master and servant relationship is not the correct position. The cases of CBN V. Igwillo (2007) LPELR – 835 (SC), 14 NWLR (Pt. 1054) 393; and Longe v. First Bank of Nig. Plc (2010) LPELR – 1793 (SC), (2010) 6 NWLR (Pt. 1189) 1 Sofekun  v. Akinyemi (1980) 5-7 S.C 1, (1980) ANLR 153 were referenced and the correct position as adumbrated in these cases is that a civil servant’s employment cannot be properly determined on the basis of a misconduct amounting to a criminal offence without the prosecution of the erring civil servant, before a Court of competent jurisdiction.

     

    Held

    In the final analysis, this appeal is held to be totally unmeritorious and consequently fails. Consequently, the appeal was dismissed. The judgment of the trial Court was therefore affirmed.

     

    Copyright: Lawpavilion (2017) LPELR-42856(CA)

     

  • ‘Senate lacks power to review President’s control on Custom CG appointment’

    A Benin-based legal practitioner and notary public, Gen. Idada Ikponmwen (rtd), has faulted the Senate for reviewing the Nigeria Custom Act.

    The review gave the Senate the power to approve the appointment of any future Comptroller-General of the Custom Service.

    Ikponmwen said the senators’ decision contravened Section 171 of the Nigeria Constitution, which vested the right solely on the President to approve the heads of extra-ministerial departments, which the Comptroller-General of Nigeria Custom Service falls in.

    Speaking in an interview with reporters in Benin City, Ikponmwen urged the senators to avoid undue interference into the rights of other arms of governments in the interest of the nation and adherence to the rule of separation of powers.

    His words: “Let us at this point make it clear that the positions of the head of custom by whatever names you call it happens to be relating to extra-ministerial department.

    “And the appointment to heads of extra-ministerial department under Section 171 of the Nigeria Constitution, is not one that require the approval of the Senate.

    “So, if exactly they now pass a law to say anybody that should be appointed to that position or to the board of that organisation must have their approval, it means that they are acting clearly in conflict  out of tune and at variance with the constitution, which is the supreme law and the grand norm of Nigeria.

    “The constitution in Section 171 talks about the appointment that can be made by the President of this country in his position as the head of government. He names ambassadors and those of the kinds in foreign nations. He names permanent secretaries, heads of extra-ministerial departments and personal staff of the president.

    “It is the President that nominates and appoints people into these positions. Under this same positions, it is clear that only those of the ambassadors require the approval of the Senate.

    “So, by implication, other positions named do not require senatorial approval. And that is the constitution.”

  • Youths seek appointment of Imo representative on NDDC board

    Youths seek appointment of Imo representative on NDDC board

    Imo State youths have urged President Muhammadu Buhari to appoint another state representative into the Niger Delta Development Commission (NDDC) board.
    They told News Agency of Nigeria (NAN) in Owerri the delay in appointing the representative amounted to injustice.
    NAN recalls that President Buhari appointed Senator Osita Izunaso, who is not from an oil-producing area, a board member, but he later resigned.
    Mr. Chigozie Ohiri, the president, Niger Delta Youth Movement, Imo State chapter, appealed to the president to appoint an indigene of oil-producing area into the board.
    He said the appointment of a representative of Ohaji/Egbema or Oguta Local Government, oil-producing areas, would give the people a sense of belonging.
    Ohiri complained that none of the N30 billion contracts the commission awarded was located in the two local governments.
    “Our investigation shows none of the 15 road contracts awarded by NDDC at the cost of over N30 billion is located in Ohaji/Egbema and Oguta.
    “These are the two oil-bearing councils.
    “This is an abuse of NDDC intra-state sharing formula as enshrined in the act establishing the commission,’’ he said.
    Mr. Ozor Okorie said it was necessary for the President to appoint a representative from the oil-bearing part of the state into the board.
    He said it would guarantee justice and fair play.
    According to him, most communities in Ohaji/Egbema and Oguta local governments have no electricity and potable water, while the roads are bad and the school buildings dilapidated.
    “It is painful to note that a lot of communities in these areas lack basic infrastructure, such as roads, hospitals, potable water and good school buildings.
    “This neglect was part of the reasons we embarked on a struggle before Governor Rocha Okorocha brokered peace,’’ Okorie said.

  • Youths seek appointment of Imo representative on NDDC board

    Youths seek appointment of Imo representative on NDDC board

    Imo State youths have urged President Muhammadu Buhari to appoint another state representative into the Niger Delta Development Commission (NDDC) board.

    They told News Agency of Nigeria (NAN) in Owerri the delay in appointing the representative amounted to injustice.

    NAN recalls that President Buhari appointed Senator Osita Izunaso, who is not from an oil-producing area, a board member, but he later resigned.

    Mr. Chigozie Ohiri, the president, Niger Delta Youth Movement, Imo State chapter, appealed to the president to appoint an indigene of oil-producing area into the board.

    He said the appointment of a representative of Ohaji/Egbema or Oguta Local Government, oil-producing areas, would give the people a sense of belonging.

    Ohiri complained that none of the N30 billion contracts the commission awarded was located in the two local governments.

    “Our investigation shows none of the 15 road contracts awarded by NDDC at the cost of over N30 billion is located in Ohaji/Egbema and Oguta.

    “These are the two oil-bearing councils.

    “This is an abuse of NDDC intra-state sharing formula as enshrined in the act establishing the commission,’’ he said.

    Mr. Ozor Okorie said it was necessary for the President to appoint a representative from the oil-bearing part of the state into the board.

  • Merit and appointment of appellate justices

    Merit and appointment of appellate justices

    SIR: On its face, the Nigerian Constitution seems to grant serious discretionary powers to the executive over judicial appointments. For instance, section 238 (2) of the 1999 constitution simply provides, in respect of appointment of Justices of the Court of Appeal, that the “appointment of a person to the office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council.” Subsection 3 of the same section 238 prescribes the qualification of a person seeking appointment as a Justice of the Court of Appeal as follows:

    It is worth noting, however, that in reality, appointment of judicial officers at the federal level is entrusted, by and large, in the hands of the Federal Judicial Service Commission (FJSC) and the National Judicial Council (NJC). While the role of these two constitutional bodies might be considered as advisory, they, nevertheless, appropriately constitute fora of consultation or decision-making through which representatives of the legal profession get to express their preferences in matters of judicial appointments. The basic role of these two bodies is to ensure that the processes of appointment of judicial officers are transparent and meet objective international criteria.

    Since the issuance of circulars by the Chief Justice of Nigeria and the President of the Court of Appeal requesting nomination of persons for appointment as Justices of the Supreme Court and the Court of Appeal, there has been a heated debate on the best approach and mode of appointment of judicial officers amongst lawyers and the general public. At the core of this debate is the question as to whether or not the bulk of the appointments should come from legal practice, academia or the bench. This, to me, is futile and puerile. What should be of paramount importance is securing a process that ensures that the best candidates emerge whether from the bar, bench or academia. All candidates should be subjected to objective professional competition assessed by a panel which is capable of overcoming partisan political and moral preferences in the selection process. Without an adequate and clearly transparent selection process, any legal system runs the risk of ending up with a judiciary in which professional competence and integrity are trumped and adverse selection prevails.

    In the on-going process of appointment of Justices to the Court of Appeal and the Supreme Court, I advocate a merit-based competitive and transparent selection process. I can only hope that the Court of Appeal, Supreme Court, Federal Judicial Service Commission and National Judicial Council will select the best.

     

    • Babajide Damola,

    Ibadan

  • Appointment of appellate judges

    Appointment of appellate judges

    Casting the net wide will infuse fresh perspectives to justice  

    The invitation extended to qualified lawyers to apply to be appointed either to the Court of Appeal or to the Supreme Court, by then acting Chief Justice of Nigeria (CJN), Justice Walter Samuel Nkanu Onnoghen, is a welcome departure from the existing procedure of appointing only sitting judges from the lower courts. Even though appointing sitting judges has its own advantages, the injection of qualified lawyers with requisite years of advocacy experience or from the academia, could infuse in the courts fresh perspective to appellate justice.

    In determining lawyers to be appointed to the Court of Appeal or the Supreme Court, the criteria should be productivity, intelligence and experience. It does not bode well for the efficiency of our appellate courts, which are imbued with enormous responsibilities and powers, for such appointments to be based only on regular promotion of judges from the lower courts, or on quota system or other parochial criteria. Such approach could give room for the promotion of mainly judges who play by the rules, instead of advancing the course of justice.

    Indeed, in some other jurisdictions, eminent lawyers who have distinguished themselves in other fields of human endeavour get nominated to the Supreme Court, where they use their wealth of experience to advance legal jurisprudence. In the United States of America, Justice William Howard Taft was appointed to the Supreme Court (1921 to 1930) after he had served as the President of the country from 1909 to 1913. So, lawyers who have distinguished themselves in legal practice, academia or even at the high courts, should be encouraged to be nominated to the appellate courts.

    Perhaps the makers of our constitution realised the need to throw the net wide enough, to catch the best that are qualified to be appointed to either of the appellate courts. According to section 231(3) of the 1999 Constitution, as amended: “A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court, unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years”.

    A similar provision is also made by section 238(3) of the constitution, with regards to the appointment of a Justice of the Court of Appeal: “A person shall not be qualified to hold the office of a Justice of the Court of Appeal unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve years”.So, while by practice judges get elevated from the high court to the Court of Appeal and from the Court of Appeal to the Supreme Court, it is clear from the two provisions quoted that qualified lawyers can also be brought from other fields to enrich the panels of the appellate courts.

    While we have not had a recent experience of lawyers getting appointed directly to the appeal courts, we had the experience of Justice Taslim Elias who became the Chief Justice after serving as the Attorney General of the Federation, during the regime of Gen Yakubu Gowon. Of course we are not advocating any arbitrary appointment of judges as could happen under a military regime, but our judiciary may gain from the infusion of carefully screened fresh blood, once in a while.

    In supporting the recent initiative of the new CJN, we are not unmindful of the genuine concerns expressed by a section of the public, as to whether such external appointments could dampen the moral of judges who hope to rise through the ranks from the high courts. For us, that worry is moderated by the size of the appellate courts, such that a few external appointments, instead of threatening career judges, would rather expose them to competition which should bring out the best in them. It will also enable the country to tap into the skills of lawyers who have distinguished themselves elsewhere, before opting to go to the bench.

    We restate that the guiding principle should be competence, integrity and productivity. While we could afford to play politics with executive and legislative appointments, the judiciary is too vital to the survival and success of a modern society to be toyed with. As Vice President Yemi Osinbajo noted about the powers of a judge at the swearing in of Justice Onnoghen as CJN, “It is the closest that man serves as Almighty God, having powers of lives, livelihoods and futures, having power to give and indeed to take away power, and authority ….”

    We hope the National Judicial Council (NJC) will select the best lawyers, to serve at the Court of Appeal and the Supreme Court.

  • My appointment as Majority leader to stabilise Senate, says Lawan

    My appointment as Majority leader to stabilise Senate, says Lawan

    Senate Majority leader Ahmed Lawan has said his emergence will bring stability and foster unity among senators.

    Lawan, who spoke to reporters at the weekend in Damaturu, observed that his appointment was predestined and divine, adding that the decision by his colleagues to make him the Senate leader was the original position of All Progressive Congress (APC) caucus of the Senate and the party.

    The executive, Lawan said, could not do without the support of the legislature, which he described as the key component of democracy.

    He stressed that the Senate will focus on supporting the President Muhammadu Buhari-led administration to achieve its programmes and policies.

    “My appointment as Senate Majority leader by my colleagues in the APC caucus was an act of God; it was predestined. I want to thank my colleagues for having the confidence in me to do that job.

    “My appointment as you know was the position of the APC right from the beginning when we ran for the Senate Presidency with the Senate President Bukola Saraki. The party nominated me as the Senate leader, Senator George Akume as the deputy Senate leader and other two principal officers for other party positions. But something happened and we were never so appointed.

    ”But in the wisdom of our colleagues after one and a half years or so, the caucus decided that it was time to change what was done and that the party’s supremacy must be adhered to and here we are.

    “It is our believe that stabilising the APC caucus in the Senate will bring unity to the Senate and we can now face the real challenges of development in our administration. I believe that will also stabilise the Senate as a whole because a stabilised and unified APC caucus ensures that the APC caucus and the minority parties will work better. So, on the whole, we have a better Senate now, a more stable Senate and I am sure it’s going to be a more productive Senate.

    “We need to support our President, Muhammadu Buhari. The legislature is so important that whatever legislative interventions the President and his administration require should be done in good time. We have no time to waste. We need to do everything possible, particularly this year, as an administration to make life better for Nigerians and we are focused and determined to give the president and this administration the support for a better Nigeria,” Lawan said.

    On the hardship in the country and the position of the Senate, he explained that the Senate was always on the side of the people, adding that the 2017 Appropriation Bill was tailored towards making life better for ordinary Nigerians.

    “The suffering in the country is one of the serious economic challenges that we face at the moment. It is because the Senate has always been on the side of the common Nigerians. What we have tried to do, however, is that in the 2017 budget, we have made provisions to make the economy better.

    “I can tell you  that the appropriation bill that the president submitted to the National Assembly has so many provisions of estimates that are geared towards bringing some reliefs to Nigerians, such as social interventions, which target the most vulnerable and the disadvantaged in the society.

    “They will get access to some funds for agricultural purposes and employment opportunity for our teaming youth.

    “The Senate cannot do anything different from that because this administration wants to make life better for the people and the Senate has to key into that either through legislation or enlightening the public on policy and we remain with the administration,” Lawan said.

  • Appointment to the office of CJN

    Appointment to the office of CJN

    There is no let-up in the controversy trailing  the appointment of Justice Samuel Onnoghen as Acting Chief Justice of Nigeria (CJN) by President Muhammadu Buhari. Not a few stakeholders in the judiciary, including one-time Nigerian Bar Association (NBA) Wole Olanipekun, SAN, have joined the discourse after the National Judicial Council (NJC) recommendation. The latest entrant, Prof ITSE SAGAY, SAN, disagrees with Olanipekun’s view on the matter. The Presidential Advisory Committee Against Corruption (PACAC) believes there is no law barring the President from turning down the NJC recommendation

    THERE has been much frenzy, furor and hysteria over the appointment of the Hon Justice Walter Samuel Nkanu Onnoghen as Acting Chief Justice of Nigeria (CJN), rather than the substantive CJN. The debate has taken every dimension possible, including accusing the Federal Government of trying to suppress the right of one part of the country in favour of another. This debate has generated a lot of heat, acrimony and self-generated anger without generating a single ray of light. I have therefore decided to intervene in the debate as lawyer and as someone who is an occasional beneficiary of informal sources of information.
    The appointment of the CJN is provided for in Section 231 of the Constitution. Basically, it provides that the President is the appointor. But for him to appoint, he must receive a recommendation from the National Judicial Council (NJC) after which he forwards the name of the appointee to Senate for confirmation. Thus, under normal circumstances, when he receives the recommendation of the NJC, he should, if he is satisfied with the nomination, pass on the name of the nominee to Senate for confirmation. Once Senate confirms the appointment, the nominee becomes the CJN after he has been sworn into office by the President.
    I pause here to disagree with Chief Wole Olanipekun, SAN, who in his two-piece article in the Vanguard, gave the impression that the President is either a cipher or a robot, who has to pass on a nomination coming from the NJC to the Senate without discretion, input or without the right of rejecting such an appointment and calling on the NJC to send other nominations. The truth of the matter is that both, in particular, can turn down the recommendation of the NJC and request that another name be recommended. The President is not a rubber stamp of the NJC recommendations, nor a robot for the conveyance of recommendations from the NJC to the Senate.
    This is where the President’s power to appoint an Acting CJN becomes important. By Section 231(4) of the Constitution, the President has the power to appoint the most senior Justice of the Supreme Court in an acting capacity until a substantive Chief Justice is appointed. But such an appointment lapses after three months and the President cannot re-appoint the same person as acting CJN unless he receives a recommendation to that effect from the NJC. Therefore, since at the time the acting appointment of Hon. Justice Onnoghen was made, the office of the then Chief Justice of Nigeria was vacant, that appointment was validly made.
    There has been extreme agitation and frenzy over the failure of the President to send Hon. Justice Onnoghen’s name for confirmation, literally within seconds of receiving the NJC’s recommendation. These agitations have exhibited either ignorance, bad faith, or down-right primordial motives. The crossroads at which we find ourselves today is entirely of the making of the NJC and the legal profession as a whole. Since the appointment of the Attorney-General, the Hon. Justice Taslim Elias in 1973, and the appointment of the Hon. Justice Augustine Nnamani, also Attorney-General a few years later, straight to the Supreme Court from outside the judiciary, all that has been happening in this country is in-breeding within the judiciary, whereby a person is appointed Judge of the High Court and after marking time as a good boy or girl, he is appointed to the Court of Appeal and after marking further time as a good boy or girl at the Court of Appeal, he is elevated to the Supreme Court. So, it has been a turn by turn syndrome. Today, once you arrive at the Supreme Court, if there is no younger man amongst those already appointed before you, you can calculate to the exact second when you are going to be the CJN.
    So, the system is devoid of the merit, achievement and quality of the character of the appointees. It’s all automation as you ride on the judicial escalator from High Court Judge to the Supreme Court and then the position of the CJN.
    Another major calamity that has hit the judicial system is the dawn of corruption right up to the Supreme Court. Only a person, who has no love for this country will forget how the Supreme Court was almost abased by the stink of corruption after the 2007 elections that brought the late Yar’Adua to power. To give an example, the ballot papers that were used by the INEC (Independent National Electoral Commission) were not bound in booklets, nor were they numbered serially, but were nevertheless used for the presidential election. Unfortunately, four out of the seven Justices upheld that election, in effect, sanctioning an election in which it was impossible to distinguish between valid and invalid ballot papers and to follow any paper trail of ballot papers to their original destinations. I am pleased to say that Hon. Justice Onnoghen, Justice of the Supreme Court (JSC), was one of the three Justices who nullified that election because of the use of the invalid ballot papers. The other two Judges were the Hon. Justice Michael Oguntade, JSC, and Hon. Justice Mariam Mukhtar. This is what the Hon. Justice Onnoghen said in nullifying the election that brought the Yar A’dua to power.
    “You cannot conduct an election properly so-called without valid ballot papers. By holding that there was substantial non-compliance with section 45(2) supra it tantamounts to holding that the election that was conducted on the 21st day of April, 2007 was done without valid ballot papers which to me, with the greatest respect, amounts to a nullity. The situation being as found by the lower court it follows that there was no election known to law the result of which could have been substantially affected by the non-compliance as the non-compliance in this case is of the nature that invalidated the election. To hold otherwise amounts to giving licence to those who conduct our elections to continue to do whatever they like including creating loopholes for the rigging of our elections thereby continuing to deny our electoral process the credibility it deserves in the community of democratic nations. How is one to know which ballot papers were sent to Sokoto, Katsina, Ebonyi, etc. when the ballot papers were not in booklet form and numbered serially? Even within the particular state where the ballot papers are sent for election, how do we know if ballot papers meant for one local government area or ward are not diverted and used in another or even not used at all but stuffed into the ballot boxes and counted as votes. How can we determine a genuine ballot paper from a fake one when we agree that any paper can pass for a ballot paper and be used in an election and assume that such an action of non-compliance does not affect the result of the ‘election’?” (Buhari v. INEC; Yar’ Adua & Ors [2009] 7 WRN, 1 at pp. 275-6).
    With the above background of in-breeding, absence of merit and later corruption, would it be responsible for the President to automatically, in a robot-like manner, transmit every name received from the NJC to the Senate? The answer is a solid No. This is where appointment as Acting Chief Justice is important. It gives the President the opportunity of studying the appointee for CJN for a period of three months in order to determine for himself whether the recommendation was justified. This load has fallen on the President because of the failure of the NJC to exercise due diligence in the past when making recommendations to the President. From my own perspective, without any privileged information, I believe that this is the process ongoing right now.
    The lack of due diligence on the part of the NJC allowed at least two Justices of the Supreme Court to slip through the net of judicial vetting to become the CJN. And that became a permanent embarrassment to the Judiciary and Nigeria as a whole. Up till today, one of them calling himself consultant, regularly carries money to his former colleagues, still serving in the judiciary, to buy justice for his Law Chamber clients. The other one specialises in dollars and distributing it amongst vulnerable colleagues. These are the types of Justices who have brought ruin to the judiciary, making it necessary for close vetting of candidates for CJN at the presidential level.
    In concluding this intervention, I wish to make the following recommendations to the NJC in other to improve the quality of appointments to the Supreme Court. They are:
    • There is need to inject fresh blood into our judicial system by appointing qualified lawyers from outside the bench straight to the Court of Appeal and the Supreme Court. In this regard, senior law academics in our universities and senior renowned legal practitioners of integrity and acclaimed knowledge and skill in law should be an additional source to the appointment of appellate Judges, even as CJN, directly.
    • An appointee to the position of Chief Justice need not be the most Senior Justices of the Supreme Court. We must take into consideration the reputation, the integrity, the skill, productivity, established reputation of the candidate before appointing him to the position of CJN. It is unhealthy to the judicial system and the performance and integrity of the Supreme Court to continue with the present system in which a recently appointed Justice of the Supreme Court could calculate the date in which he is going to become the Chief Justice of Nigeria based on the ages of those above him in the hierarchy.
    I therefore appeal that our notoriously loquacious and unrestrained compatriots should desist from further hysteria to allow the acting CJN to earn his position on his own merit rather than create a frenzy and furor which can result in the very opposite of what they are loudly agitating for.

    Cross River senators, reps push for Onnogen’s confirmation as CJN

    MEMBERS of the Cross River State National Assembly caucus yesterday urged President Muhammadu Buhari to forward the name of Acting Chief Justice of Nigeria (CJN) Justice Samuel Walter Onnoghen to the Senate for confirmation as the substantive.
    They predicated their push on the growing sentiment that Justice Onnoghen’s deserved elevation was being held in abeyance for being Southsouth indigene and not from a region preferred by “powerful forces”.
    According to the caucus, the feeling in some quarters was that the non-transmission of Onnoghen’s name to the Senate for confirmation may have been because of his profound and radical judicial pronouncements.
    Exercising its powers under Section 231 (1) of the 1999 Constitution (as amended), the National Judicial Council (NJC), on October 13, last year, recommended Justice Samuel Walter Onnoghen as CJN to the President.
    But, a month after the NJC recommendation, the Supreme Court Justice (SCJ) was appointed and sworn in as Acting CJN by the President.
    Caucus Leader Senator John Owan Enoh, told a news conference in Abuja that exactly two months and 15 days, the President has not forwarded Justice Onnoghen’s name to the Senate for confirmation as required by Section 231(1) of the 1999 Constitution (as amended)
    The Cross River Central senator noted that members of the caucus decided to speak with one voice and insist that “justice be done on the appointment of Hon. Justice S.W. Onnoghen as Chief Justice of Nigeria.”
    Enoh lamented that the non-transmittal of Onnoghen’s name as the CJN has cast a pall of uncertainty on the judiciary, leaving in its wake, a huge shadow and question on the capacity of the hallowed temple of justice to deliver justice in the overall interest of the country and its citizens.
    He noted that in approaching the issue, they were minded by the critical role allotted to them as public office holders and representatives of their people to speak in defence of “truth, equity and justice.”
    The senator said: “You may recall that the National Judicial Council in exercise of its powers under Section 231 (1) of the 1999 Constitution (as amended), on October 13, 2016 recommended Hon. Justice Samuel Walter Onnoghen as Hon. Chief Justice of Nigeria to the President, President MuhammaduBuhari .
    “The tenure of the former Chief Justice of Nigeria, Hon. Justice Mahmud Muhammed had elapsed and the president appointed and swore in Hon. Justice Samuel Walter Onnoghen as Acting Chief Justice of Nigeria on November 10, 2016.
    “Exactly two months, and fifteen days, the presidency has delayed and withheld to forward his name to the senate for confirmation as Chief Justice of Nigeria as required by Section 231 (1) of the 1999 Constitution as amended.
    “We are worried by this development for obvious reasons. As a hallowed institution, the judiciary is the bastion of our democracy and should be insulated from undue influence, politics and manipulation of political predators.
    “It operates on an established tradition of a settled succession based on merit, and seniority. This established order and convention has imbued it with a measure of stability and positioned it to play the critical role of dispensing justice immune to undue influence of powerful vested interests.
    “Before now, the convention is for the president to forward the name of a candidate so recommended to him by the National Judicial Council in exercise of its powers and responsibility.
    “Pursuant to its mandate, what is required from the presidency in this case is a decisive action of simply transmitting the name of Justice Samuel Walter Onnoghen to the senate for confirmation which unfortunately has not happened.
    “This unfortunate development has enveloped the Supreme Court and Judiciary with an intriguing cobweb of uncertainty and given conspiracy theorists a field day to decode why this obvious travesty has endured up till now.
    “There is a growing sentiment in certain quarters that Justice Onnoghen’s earned elevation to the rank of Chief Justice of Nigeria is held in abeyance precisely because he is either not from a particular ethnic origin preferred by powerful forces or his profound and at times radical judicial pronouncements make him too principled to occupy this exalted office.
    “The president’s inaction in this instance has acted as a cannon fodder for those alluding to a vast conspiracy to deny Justice Onnoghen his earned position.
    “As political leaders, we should collectively resolve to build a just and fair society devoid of ethnic cleavages; a society where hard work and integrity are rewarded and not repudiated.
    “As leaders, we should work towards the inauguration of a just order in which the East meets the North, South and West and together in confidence, united by a common and shared destiny and mutual respect, we confront the future together.
    “We call on the presidency to act in a decisive manner to reassure Nigerians that we are all equal and that if we are able to harness our God given talents, that we can aspire to the highest position in our nation unencumbered by primordial forces. Justice Samuel Walter Onnoghen is eminently qualified to occupy the position of Chief Justice of Nigeria.
    “He earned it through decades of hard work, profound postulations and untainted integrity. He has been part of a stable reward system in the judiciary in which order of rank is recognized and hard work rewarded.
    “In his years serving in the temple of justice, he has witnessed men and women who served with honour and distinction elevated to the highest judicial office in our clime.
    “Having worked with distinction in the temple of justice, we believe like majority of our constituents, and Nigerians, that he deserves elevation as Chief Justice of Nigeria. His case cannot be different.
    “We therefore call on the president to act in a clear and decisive manner now by transmitting without further delay, the name of Justice Samuel Walter Onnoghen to the Senate for confirmation as Hon. Chief Justice of Nigeria as recommended by the National Judicial Council.
    “This will bring to an end the swirling speculations of vendetta against the revered justice and restore confidence in our judiciary. Any action contrary to this will convey and validate growing sentiments of vendetta.
    “For the avoidance of doubt, in exercising its constitutional powers in this instance, the National Judicial Council was transparent and followed laid down procedures and processes.
    “By appointing Hon. Justice Samuel Walter Onnoghen as Acting ChiefJustice of Nigeria, the president has foreclosed any insinuation as to incompetence or any disabling factor for him to be made Hon. Chief Justice of Nigeria.
    “Under these circumstances, the continuous delay of the president to forward the name of Hon. Justice Samuel Walter Onnoghen to the Senate for confirmation without any lawful and constitutional cause has brought the issue of the independence of the judiciary and security of tenure of judges to doubt and public discourse.
    “It has opened the floodgate of political and social insinuations and entrenched the perception of ethno-regional prejudice and politicization of the judiciary. This is most unfortunate.
    “On our part, we will continue to work for and desire a united, peaceful and progressive Nigeria in which all men are exposed to equal opportunities, a nation in which all men irrespective of their religion and ethnic origin are equal and given the opportunity to live to the fullest, their God given talents.
    “Let all of us in our different capacities make collective resolve to strengthen the foundation upon which this great nation is built. This, we believe, is our future and pathway to renewal, greatness and prosperity.”
    Members of caucus who demanded for Onnoghen’s confirmation are: senators Rose Okoji Oko and Gershom Bassey as well as House of Representatives members Essien Ayi, Bassey Eko Ewah, Dan Asuquo, Etta Mbora, Jarigbe Agom Jarigbe, Lego ldagbo, Chris Agibe and Mike Etaba.

  • Obaseki to politicians: don’t come to Govt House without appointment 

    Obaseki to politicians: don’t come to Govt House without appointment 

    Edo State Governor Godwin Obaseki has told politicians, including those in his family, not to come to the Government House without proper appointment.

    Obaseki also told his aides to avoid having what he called unnecessary visitors.

    The governor said he needed time to settle down to work.

    His Chief Press Secretary, Mr. John Mayaki, quoted the governor at a reception reporters in the state organised in his honour.

    The governor’s aide said Obaseki promised to run an issue-based administration.

    Mayaki said Obaseki’s administration would not insult anybody but would be professional in responding to critics.

    The governor’s aide noted that the people expect a lot from Obaseki but the administration needed to settle down to work.

    He described the reception as a call for him to be responsible to his duties.

    Mayaki pledged to relate well with reporters.

     

  • Chancellor hails French Language Village DG’s appointment

    Chancellor Espéranza University, Cotonou in  Benin Republic, Prof Pierre d’Alcantara Zocli, has commended President Muhammadu Buhari for re-appointing Prof. Rauf Adebisi as the Director-General and Chief Executive Officer of the Nigeria  French  Language Village (NFLV), Badagry.

    He noted that the re-appointment would allow Adebisi to finish the  programmes he started in the institution, especially as the institution held a forum where French language activities in higher institutions were reviewed.

    The Chancellor noted in his congratulatory letter to Adebisi that he looked forward to a rich exchange of educational ideas between both institutions.

    The letter reads in part: “As an institution rooted in the spirit of African innovation and progress, Espéranza University would like to mark the recent re-appointment of Prof Rauf Adebisi to the post of General Director (CEO) at the Nigerian French Village.

    “The Nigeria French Village initiative is yet another example of the Nigerian entrepreneurial spirit which Espéranza University has been working hard over the past couple of years to harness by equipping young Nigerian prospects with the academic and practical tools of entrepreneurship within an intra-African setting, thereby exposing them through immersion to the intricacies and opportunities of our cross-border trading corridor and the Francophone market.

    “In the light of these striking synergies between our respective works, we are keen to seize the moment and launch a conversation around the setting up of a strategic partnership between Espéranza University and Nigeria French Village

    “This would be the perfect opportunity to build on your past achievements and further the breath of your new term and future achievements. Espéranza University would be honoured to be part of what promises to be a landmark chapter in the story of Nigeria French Village and learn from your experience empowering Nigerian prospects.”