Thursday, 12 March 2020

IKPEME: Why I dragged Gov Ayade, 9th Assembly over confirmation of State Chief Judge


12 March 2020 

F. Baba Isa Esq. a Nigerian Constitutional lawyer has given insight into why he dragged Cross River governor Ben Ayade, and the 9th Cross River State House of Assembly CRSHA before a court in Abuja especially in respect of the confirmation of the Chief Judge of Cross River State. 

Isa's argument is that the true intention of the law was not to cede powers to either the state governor or the state House of Assembly to determine who becomes state Chief Judge as they did in the case of Hon. Justice Akon Ikpeme in Cross River. 

According to lawyer Isa, it amounts to a nullity for the state governor to appoint Honourable Justice Maurice Eneji as Acting Chief Judge of the State. 

The filed suit at the Federal High Court in Abuja is against the Governor and the House of Assembly, joining the National Judicial Council, the Attorney General of the Federation, the Speaker of the House of Assembly, Justice Akon Ikpeme, Justice Maurice Eneji and the Attorney General of Cross River State as necessary and nominal parties. 

Isa highlights his arguments thus: 'In the case of Orakul Resources Ltd. v. N.C.C. (2007) 16 NWLR (Pt. 1060) 270 at 304 Paras. G - H, 313 Paras. C - D (CA), it was held that "The aim of interpretation of statutes is to discover the intention of the legislator from the actual words used in the law. And in order to discover the intention of the legislator, the provisions of all sections of a statute must be considered and not a particular section in isolation of other sections or out of context of the other sections. See Arowolo v. Akapo (2003) 8 NWLR (Pt. 823) 451." - Per Odili, JCA…. It is fundamental to the construction of the provisions of any statutes to read the sections as a whole to enable the interpreter to gather the collective sense of the provisions particularly where the subject-matter construed concerns other sections of the same statute, all related provisions must be, considered and construed together as forming a composite whole. Mobil Oil (Nig.) Plc. v. IAL 36 Inc. (2000) 6 NWLR (Pt. 659) 146." - Per Adekeye, JCA.

'This, is what, I have respectfully invited the Honourable Court to do: to discover the intention of the legislature in the sections of the Constitution I raised in the issues for determination.

'A community reading of Sections 153(1), 158(1) and Part I, Paragraph 21 of the Third Schedule of the Constitution will show that the intention of the Legislature for creating the National Judicial Council, NJC, in Section 153(1), is to place the issue of appointment of the Chief Judge of a State squarely on the table of the NJC, without the influence, control, direction, manipulation and shenanigans of the Governor, the House of Assembly or any other person or authority; Section 158(1) of the 1999 Constitution reveals the intention of the legislator thus: 

"(1) In exercising ITS POWERS TO MAKE APPOINTMENTS  or to exercise disciplinary control over persons, the Code of Conduct Bureau, the NATIONAL JUDICIAL COUNCIL, the Federal Civil Service Commission, the Federal judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission, SHALL NOT BE SUBJECT TO THE DIRECTION OR CONTROL OF ANY OTHER AUTHORITY OR PERSON." (Emphasis is mine).

'Section 158(1) clearly states that the power to make appointments of Judges, including the Chief Judge, is vested and can only be exercised by the NJC. This process of appointing a judge as later outlined in Part I, Paragraph 21 of the Third Schedule and Section 271(1) of the Constitution cannot be interpreted to mean that the power to appoint a judge or Chief Judge has been given to or even shared with the Governor and House of Assembly of a State; such an interpretation will defeat the intention of the legislator which is to insulate the appointment of a Chief Judge and other judicial officers from politics and politicking.

'Section 271 of the Constitution states that:- "(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."

'Can this provision to confirm a Chief Judge by the House of Assembly be exercised to render the powers of the NJC a nullity? Can this provision be exercised without question or restrain? Can this provision be exercise to further primordial interests and politics? Can this provision be exercised to erode the independence of the judiciary and/or the NJC? Can this provision be exercised to defeat the intention of the framers of the Constitution?

'The framers of the Constitution did not intend to see a day where a House of Assembly will invoke Section 271(1) to refuse to confirm a candidate for the position of a Chief Judge because they do not like the person's height, weight, complexion, appearances or the circumstances of the person's birth. When this power, as in the instance case, is exercised recklessly, it will therefore be absurd, for anyone to think that the power of the House of Assembly to confirm a Chief Judge can be exercised thus without question and sanction by a court of competent jurisdiction. 

'Section 4 (8) of the Constitution was designed to save a situation like this, it states that: "Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law..."

'As stated in the case of SAVANNAH BANK OF NIGERIA LTD & ANOR v. AJILO & ANOR (1989) LPELR-3019(SC) "It is a fundamental rule of our law that no statute shall be construed to affect vested rights unless the language of the statute and the subject-matter clearly points towards that effect." PER NNAMANI, J.S.C. (P.73, Para. G)

'Justice Ikpeme has a vested right, a fundamental one for that matter, in Section 42 of the Constitution: "(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 citizen of Nigeria of other communities, ethnic groups places of origin, sex, religious or political opinions are not made subject." 

'The provision of Section 271(1) of the Constitution to confirm a Chief Judge by the House of Assembly cannot be exercised or construed to affect the rights of Justice Ikpeme as contained in Section 42 of the Constitution.

'The Supreme Court held in the case of Kalu v. State (1998) LPELR-1655(SC) that "...the fundamental principles that govern the interpretation of our Constitution are: (i) That such interpretation as would serve the interest of the Constitution, best carry out its object and purpose and give effect to the intention of the framers thereof should be preferred; (ii) In the above regard, all the relevant provisions of the Constitution must be read together and not disjointly. See Ojokobo v. Alamu (1987) 3 NWLR (Pt.61) 377/"

'We have argued above that by the combined reading of Sections 153(1), 158(1) and Part I, Paragraph 21 of the Third Schedule of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the framers of the Constitution did not intend to cede the responsibility of the appointment of a Chief Judge to the Governor and House Assembly of a State.

'Section 271 (4) of the Constitution states that "If the office of Chief Judge of a State is vacant or if the person holding the office is for any reason 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."

'We submit that the office of the Chief Judge cannot be said to be vacant when the House of Assembly set out to usurp the powers of the NJC by refusing to confirm Justice Ikpeme, duly cleared and appointed by the NJC, citing reasons that infringed on her rights as contained in Section 42 of the Constitution; the Honourable Justice Ikpeme cannot be said to be unable to perform the function of the office of the Chief Judge because the House of Assembly refused to confirm her, citing her being from Akwa Ibom State as a security risk. The "any reason" in Section 271(4), supra, cannot be interpreted to encapsulate this kind of absurdity.

'It is therefore, my submission, that the appointment of Honourable Justice Eneji pursuant to Section 271(4) is a nullity and should not be allowed to stand.

'Section 1 (1) of the Constitution declares that "This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution.

(3) If any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void." 

'See Cadbury (Nig) Plc vs F.B.I.R (2010) 2 NWLR (Pt. 1179) p. 561; Governor, Ekiti State vs Olubunmo (2017) 3 NWLR (Pt. 1551)

'It was held in the case of Anyaoha vs Obioha (2014) 6 NWLR (Pt. 1404) p. 445, that the Constitution is a very serious document and should not be treated with levity.

'We have called upon the Honourable Court, in the wisdom contained in the decisions of the Court in Eze vs Governor, Abia State (2010) 15 NWLR (Pt. 1216) p. 324 and Adeleke vs Osun State House of Assembly (2006) 16 NWLR (Pt. 1006) 608, to hold and reason that a Constitution must always be construed to protect and guide what it is meant to protect and guide. 

'The Court also held in Eze vs Governor, Abia State, supra, that the interpretation and the construction of the Constitution must be literal. The meaning of its words must not be searched beyond what the Constitution stated. It must not be construed with ambiguity or mistake to its framers. It must not be subordinated to any other law or authority. It was also held that it is the duty of the courts to interpret the Constitution to sustain democratic governance on the rule of law. This is what, with the utmost respect, we are inviting the Court to do. See also F.R.N vs Osahon (2006) 5 NWLR (Pt. 973) 361.

'In the end, we hope that justice is done, in the end, we hope that the court will stand for all women, in the end may it not be said that we did nothing.' 





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