It is also important to note that immediately the governor of Enugu State received the recommendation of N.J.C. that Justice R. C. Agbo be appointed, he in obedience to the precepts of the Constitution sent the name of the House of Assembly for confirmation. By a unanimous decision and the House speaking with one voice rejected our colleague Justice R. C. Agbo. The reasons for the rejection were not made public and the Constitution did not demand any explanation from the House in doing so. The House formally informed the Governor, the development. The Governor in turn communicated the N.J.C. At its meeting of December 2004, the N.J.C. resting again on the principle of seniority recommended the writer as the next so-called senior judge on the list to the Governor for appointment. As usual the Governor sent the writer’s name to the House of Assembly which unanimously confirmed the appointment.
It was common knowledge that some belligerent minds at the N.J.C. were smartening for a long drawn battle with the Government and House of Assembly of Enugu State. But ultimately the N.J.C. under the highly intelligent, savvy, transparent and dedicated Chief Justice of Nigeria meandered away from this ignoble collision course. As we pointed out above, where a House rejects a nominee, a disinterested N.J.C. should be grateful for the indication that something was amiss and see to it that the dangerous condition was corrected. It should not see it as an opening to go into power contests with relevant arms of state government.
The N.J.C. must be commended for not allowing meta-legal factors operating outside the appointing process to affect or prevail over its decision in the matter. To allow faceless and vindictive petition writers to influence who gets appointed as a Chief Judge, would herald the obituary of boldness on the bench. The judicial system should evolve some form of protection for judges who discharge their functions boldly and honestly. All we are saying is that the career of bold and incorruptible judicial officers should not be allowed to be adversely affected by mendacious petitions from those they may have found guilty one time or the other in the course of their judicial inquiries and adjudications. Last minute desperate allegations to the N.J.C. when the victim is not in a position to defend himself must be seen as wicked and inhuman and must be ignored.
If judges should conduct public inquiries and judicial duties with the fear of what those found guilty could do in future to abbreviate their career, then we can as well announce the obituary of justice, firmness and fairness in our justice delivery system. Such meta-legal factors outside the process must be completely kept away from the evaluation of who becomes a Chief Judge of a State. Those outside the process should not be allowed to double cross it. My appointment has obviously set forth a pragmatic and constitutional approach which should be permitted to endure in the interest of honour and integrity in the process. And the obvious surmise from my experience is that the N.J.C. has the prestige to recommend but not the power to appoint or insist on a particular appointment. There is absolutely nothing to point to in the Constitution’s text to support a contrary view. As legal minds we must look solely to the constitution as determinative of the question; or at least mainly thereto. We are not entitled to superimpose our personal ideas on the constitutional provision that is clear. By training and by our external hunt for authority, we are not entitled to move outside the text of the Constitution. But if we must, the approach shall be solely pragmatic.
Conclusion
One thing which we can take away from the above exposition is the awareness that the framers of the Constitution of the Federal Republic of Nigeria 1999, intended the process of appointment of a Chief Judge of a State to be political. Consequently, none of the agencies in the appointing process is entitled to objectify what the Constitution treats as political. The rule of seniority usually exploited by the J.S.C. and N.J.C. in the appointing process must be abandoned. In any case, resort to seniority as the only objective basis for the selection of a Chief Judge is a lazy approach. If we must objectify the process there are obviously weightier considerations. The rule of seniority as the only criterion is contrary to political and constitutional trend and should not be further pursued. Every judge of a High Court of a State is a potential Chief Judge of the State and must be seen as such. In that hallowed climate every judge will want to work hard; want to stay away from corrupt influences and bribery; want to stay away from improprieties and hope for the best. And this development would be good augury for the entire judiciary and the judicial system.
It is also important to emphasise that the principle of federal structure of government in Nigeria has increased the importance of yielding the floor to the Governor and the House of Assembly to ultimately decide who becomes the Chief Judge of a State. Nothing but confusion can result from the attempt to wrestle the decision from the political agencies of the State. No doubt seniority on the bench is a respected criterion but must not be determinative of the selection or succession process especially where there are other measurable performance criteria that will enhance quality and higher standards in our judicial institution. It was this dynamic force that prevailed in my case.
My experience also evinced the triumph of the doctrine of separation of powers. The doctrine refers to the concept that each branch of our tripartite government has its own role and that no branch shall exercise the powers of the other two. Evidently, the separation of powers and the system of checks and balances of each branch over the other is a central feature, and a criteria safeguard of our constitutional democracy.
If the N.J.C. is able to read the handwriting from the State Judicial Service Commission and respect the thinking of the Governor of the state on the matter, the succession exercise will never leave a bitter residue at the end of the day. Obviously, this is not a case for the superiority of the executive arm of government. The idea we are simply trying to put forward is that the various organs involved in the selection or succession exercise must not unnecessarily objectify a process which the constitution has clearly declared to be political.
From the foregoing, the following suggestions emerge:
1. The State Judicial Service Commission (J.S.C.) must recommend to N.J.C. the judges for the appointment after due consultation with the Governor of the State. This approach is desirable in many respects. It will ensure that the person or persons eventually recommended to the Governor are acceptable to him. It will save time and ensure that the three arms of government operate not in conflict but in great complimentarity to one another. Harmonious co-existence between the Judiciary, the Executive and the Legislature has no bearing whatsoever to judicial dependence or independence. Obviously in the process of judging, judges put aside their personal beliefs and dispositions and decide what the law requires and what the facts lead to. The articulate concern for protecting the interest of the court’s decision making process is strictly a legal process, not political. Therefore judicial dependence should not be a cloak that could be thrown around a nominee at the very last minute, and when he may not have the opportunity to defend or explain himself before the N.J.C.
The J.S.C. should also weigh the character, fitness and intellectual competence of the nominees. This is because a Chief Judge must have noble concept of the office and use it to accomplish desirable results. He must also evince some intellectual, moral and philosophical leadership of the State Judiciary.
2. The N.J.C. upon receipt of the nomination or recommendation from the J.S.C. shall forward the names unedited to the Governor, “For his action please”. The governor in exercise of his powers under the Constitution will therefore appoint one out of the names sent. The point we are making is this. If N.J.C. received a list of three judges from the J.S.C. unless there are grave legal reasons to the contrary, it must send the list as received to the governor who then decides ultimately who to appoint from the list. This is the only way the N.J.C. can keep away from political conflagration and retain its awareness and integrity.
3.It is necessary to point out here that most decisions of the J.S.C. and N.J.C. filter into town even before members rise from the meeting. Leaks are vey deplorable and they activate petition writers to go to town. And these leaks diminish the integrity of the process.
4.From the list of three judges sent to the Governor, it will be his absolute discretion to send the name of one of the judges to the House of Assembly for confirmation. If the House rejects one, he would send the other as the case may be until confirmation is received. In similar important appointments at the federal level, three names are usually sent to the President of Nigeria from which one of them gets appointed. No agency of the federal government can or is capable of insisting that a particular person must be appointed by the President. This practice is trouble-free and that is what is envisaged in the appointment of the Chief Judge by the Governor of the state. In short, the argument when reduced to its last analysis comes to the fact that the appointment of a Chief Judge of a State is a political process and the role of the Governor is paramount and prevailing.
5. A judge with fundamental allegiance to law and judicial ethics even if appointed by his father or father-in-law cannot bend the law for him.
6. The honour of being a Chief Judge of a State shall be reserved for only those who have legitimate claim to distinction in character and learning, and or, to those whose temperament, character and administrative tendency best reflect judicial and personal commitment to excellence. In this regard any distinguished legal practitioner at the Bar or in academics who has evinced above attributes and who has been on the job for not less than twenty years could be appointed a Chief Judge of his State. There is nothing in any law or in the text of the Constitution to suggest that the selection must be confined fairly closely to the roster of judges in the State.
7. We must also note, though obvious it may seem, that a judge rejected for the office of a Chief Judge today, could, if he rectified the deficiencies that denied him the position in the first instance, become a Chief Judgein future. That he or she is rejected now does not make him lose his life. He will not lose his Court. He could still go to the Court of Appeal and there begin a journey to the apex court.
Finally, it is well to point out that the matter under evaluation may not be exhausted by any single perspective. Plural perspective may be needed. We leave that to rejoinders and exponents of other views. We are also typically aware that in every lively legal discussion, contrary opinions must sporadically show their heads.
But we insist that the views advanced above are valid, useful, practical, cogent and preferable.
