Rivers judiciary: Agumagu in a make-or-mar battle

Justice Peter Agumagu

ADE ADESOMJU, in this piece, reviews the crisis in the Rivers State judiciary and the make-or-mar situation it portends for Justice Peter Agumagu

Justice Peter Agumagu of the Rivers State Bench, who is currently faced with a query and suspension as a judicial officer, may be fighting a battle, whose outcome will determine the next phase of his career on the bench.

At least five suits had been filed in court after he was sworn in by Governor Rotimi Amaechi of Rivers State, first as an acting Chief Judge of the state on August 20, 2013, and later as the substantive Chief Judge of the state on March 18, 2014.

The NJC had earlier recommended another judge of the High Court bench, Justice Daisy Okocha, for the appointment as the substantive Chief Judge of the state, but the recommendation was rejected by the state government.

The council queried and suspended Justice Agumagu as a judicial officer for allegedly violating Section 271(1) of the constitution by submitting himself for confirmation by the state House of Assembly and swearing-in by the governor as the state’s substantive Chief Judge without being recommended by the council.

The NJC’s letter with reference number, NJC/S.32/RV.CCA/1/36 , and dated March 26, 2013, querying Justice Agumagu and suspending him as a judicial officer with immediate effect, was personally signed by the Chief Justice of Nigeria and Chairman of the NJC, Justice Aloma Mukhtar.

The letter read,   “At its Emergency Meeting which was held on March 26, 2014, the National Judicial Council took note of your purported appointment and swearing-in as the substantive Chief Judge of Rivers State after confirmation by the state House of Assembly, contrary to Section 271(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended.

“It is expressly provided in section 271(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, as follows:

‘The appointment of a person to the office of the Chief Judge of a state shall be made by the governor of the state on the recommendation of the National Judicial Council, subject to the confirmation of the appointment by the House of Assembly of the state.

“The National Judicial Council did not at any time make any recommendation to the Governor of Rivers State that you be appointed the Chief Judge of Rivers State.

“You are to explain in writing within four days why you should not be removed from office as a judicial officer for failure to abide by your oath of office to uphold the Constitution and Laws of the Federal Republic of Nigeria.

“In the meantime, in the exercise of its powers under paragraph 21(d) of Part 1 of the Third Schedule to the 1999 Constitution of the Federal Republic of Nigeria, as amended, the National Judicial Council decided to suspend you from office as a judicial officer with immediate effect.”

Court to the rescue

Rather than respond to the query, Justice Agumagu decided to take the battle to court.

Depending on the outcome of the suit which he filed before Justice Adeniyi Ademola of a Federal High Court in Abuja, the judge may either become the victor or the victim of the crisis which has been rocking the Rivers State Judiciary for about 10 months.

In his suit filed through his counsel, Chief Akin Olujimi (SAN), on April 3, 2014, Justice Agumagu sued the NJC along with Justice Babatunde Adejumo, Justice Jubril Idris and Justice Comwell Idahosa, whom the plaintiff described as the Chairman and members of the panel set up by the NJC to investigate him.

He wants the court to, among others, quash the query and letter of suspension issued to him by the NJC and order that the decision to suspend him from office be set aside.

He also wants the court give an order of injunction restraining the respondents from taking any steps or further steps or actions to enforce the decision suspending him from office as a judicial officer, and from acting or taking any further decision or action against him based on the said suspension.

One of his other grounds on which he rested his prayers was that he remained the Chief Judge of Rivers State, having been so appointed by the governor of the state through a letter dated March 18, 2014.

He said from the NJC’s letter, it was clear that the council “had prejudged the guilt and liability of the applicant to be removed from office as a judicial officer ‘when it concluded that the applicant (Agumagu) failed to abide by his oath of office to uphold the Constitution and Laws of the Federal Republic of Nigeria’.”

He added that from the conclusion already reached by the NJC, “it is so obvious that the 2nd to the 4th respondents cannot approach the investigation ordered with a proper frame of mind as they are most likely to be influenced by the conclusion they had reached along with the first respondent (NJC) on the allegation against the applicant.”

His grounds further read, “It is the governor under section 292(1) of the 1999 Constitution as amended who is vested with power to remove a judicial officer from office and not the 1st respondent (NJC).

“The applicant’s right to fair hearing in the determination of his civil rights and obligations is guaranteed by section 36 of the 1999 Constitution as amended and also under the rules of natural justice but the 1st respondent acted in breach of this fundamental right of the applicant when it suspended the applicant from office as a judicial officer without any hearing at all.”

The NJC, through its counsel, Chief Wole Olanipekun (SAN) had filed a preliminary objection challenging the jurisdiction of the court to entertain the suit. The matter is to come up for hearing on June 30.

The tale of two judgments

Since the crisis started in August 20, 2013, when the former Chief Judge of Rivers State, Justice Iche Ndu, retired from the bench, judgments have been delivered in two of the suits which arose from the crisis.

The first judgment was delivered by Justice Lambo Akanbi of a Federal High Court in Port Harcourt on February 19, 2014 in the suit, FHC/PH/CS/358/2013, while the same judge delivered the second judgment in the suit FHC/PH/S/421/2013, on March 18, 2014.

The second judgment nullified NJC’s recommendation of Justice Okocha to the governor, a development which the House of Assembly considered as a basis for confirming Justice Agumagu’s appointment as the substantive Chief Judge and also as the grounds for swearing him in as the substantive Chief Judge by Governor Amaechi .

On the day the judgment was delivered, Justice Agumagu was cleared by the House of Assembly and sworn in by the governor as the substantive Chief Judge of the state.

The suit in which the judge delivered its second judgment was filed by Governor Amaechi, the Rivers State Judicial Service Commission and the Attorney General of the state. The NJC and Justice Okocha were the only two defendants in the suit.

Justice Akanbi held in the judgment that since the NJC was unable to give cogent reason for disqualifying Justice Agumagu, he (Agumagu) remained the candidate to be recommended and forwarded to the governor for appointment as Chief Judge of Rivers State.

“I find total lack of reason to disqualify Agumagu P in the letter of NJC to the governor. In the absence of any such reason, Agumagu P remains the candidate to be recommended and forwarded to the governor for appointment as Chief Judge of Rivers State,” Justice Akanbi had held.

In nullifying NJC’s recommendation of Justice Okocha to Governor Amaechi, Justice Akanbi had ruled thus, “All the steps taken by the 1st defendant (NJC) in the matter of the recommendation of the appointment of a candidate to the office of the Chief Judge of High Court of Rivers State upon and subsequent to the letter of July 22, 2013, in as much as they were based on criteria outside the qualification prescribed by section 271 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are altogether, wrongful, null and void.”

Though both the NJC and Justice Okocha had filed separate notices of appeal against the judgment, the council had argued during hearing that Justice Okocha was the most senior judge of the High Court of Rivers State and that she was the judge sitting at High Court No. 1, being the courtroom designated for the most senior judge of the High Court of Rivers State.

The council had maintained that on the other hand, Justice Agumagu was the President of the Customary Court of Appeal of the state. It added that Justice Agumagu had since left the bench of the High Court of Rivers State, a movement which it described as a transfer of service.

It had maintained that by constitutional arrangement, the Customary Court of Appeal and the High Court were two different and distinct streams of courts demanding the application of a different genre of expertise and governed by different sets of constitutional provisions and laws.

But the state government, through the state Attorney-General’s office, had argued that being the next most senior judge of the High Court of a state was not sine quanon in the appointment of the Chief Judge of a state.

The Attorney-General contended that the criteria for the selection of a Chief Judge is as provided in section 271 (1-4) of the 1999 Constitution, which according to him, is simply that the person is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 10 years.

The government maintained that Justice Agumagu having met the requirement he ought to have been the one recommended by the NJC to the governor , since he (Agumagu) was the candidate preferred by the state Judicial Service Commission.

NJC, Okocha appeal

NJC, in a six-ground notice of appeal filed through its counsel, Mr. Mustapha Agbarere, urged the Court of Appeal in Port Harcourt to set aside Justice Akanbi’s judgment.

Agbarere had argued among others that, “The finding of the learned trial judge that the NJC must give reasons for preferring the second candidate (Okocha) and for jettisoning the first choice (Agumagu) is not legally supportable by the provisions of the Constitution of the Federal Republic of Nigeria 1999, as amended.

“The learned trial judge failed to interpret correctly the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria, as amended, namely, Sections 158, 271(1) and paragraph 21© fo the Third Schedule Part 1 of the Constitution which did not fetter the discretion to choose and recommend a person from the list submintted to NJC by the state Judicial Service Commission.

“A court of law should exercise restraint in questioning the discretion of the statutory body like NJC which involves the function of making a choice.”

Through her counsel, Dike Udenna, Justice Okocha maintained in her appeal that the lower court erred in law and there occasioned a miscarriage of justice when it overruled her preliminary objection and assumed jurisdiction to entertain the suit.

“The learned trial judge erred in law and occasioned a serious miscarriage of justice when he came to the conclusion and held to the effect that although the NJC is not bound to pick the preferred candidate of the State Judicial Service Commission for recommendation to the governor for appointment as the Chief Judge of a state, the NJC must give cogent and compelling reasons for jettisoning such preferred candidate,” Udenna argued.

However, with one of the judgments declaring that Agumagu, being a judge and indeed the President of the Rivers State Customary Court of Appeal, was unqualified and unsuitable for appointment as an acting Chief Judge in the state, his legal team may in the nearest future have to prove that a person who is not qualified to act as a Chief Judge may not necessarily be unqualified to assume the substantive position of the Chief Judge.

Was Agumagu qualified for appointment as an acting Chief Judge?

This was the question three plaintiffs, Boma Goodhead, Ajenyanate Samuel and Kengema Unity Forum, threw before Justice Lambo Akanbi of a Federal High Court in Port Harcourt after Justice Agumagu was sworn in as an acting Chief Judge.

In their suit filed on September 23, 2013 and marked FHC/PH/CS/358/2013, the plaintiffs sued the Attorney General of Rivers State and the Attorney-General of the Federation as the first and second defendants respectively.

The plaintiffs formulated this question for determination, “Whether a judge, and in fact the President of the Rivers State Customary Court of Appeal established pursuant to section 280 of the Constitution of the Federal High Court of Rivers State established under Section 270 of the said Constitution to be appointed as an Acting Chief Judge of the High Court of Rivers State under section 271(4) of the said Constitution of the Federal Republic of Nigeria 1999 (as amended).

Through their lawyer, Mr. Tubotamuno Dick, the plaintiffs had argued that Justice Agumagu, being a judge and indeed the President of the Customary Court of Appeal, was not qualified under section 271(4) of the Constitution to be regarded as a judge of the High Court.

The Attorney-General of the Federation, who is the second defendant in the suit had argued in line with the plaintiffs, submitting that Justice Agumagu was never a judge of the High Court of Rivers State.

However the Attorney-General of the state had only contested the jurisdiction of the court to entertain the suit, without canvassing argument against the claims of the plaintiffs.

The court in its judgment delivered on February 19, 2014 upheld the contention of the plaintiffs, holding that, “Thus, the inevitable conclusion I have reached is that His Lordship, the Hon. Justice P.N.C Agumagu is not qualified as a state High Court judge, hence he’s not suitable and/or qualified to be appointed as acting Chief Judge of the High Court of Rivers State.

“Consequently, I answer the sole question for determination in the originating summons in the negative and in favour of the plaintiff?

“Afortori, I grant the declaratory relief No. 1 as prayed. I also grant declaratory relief No. 2 only to the extent that Hon. Justice Agumagu not being constitutionally qualified to be appointed as acting Chief Judge of Rivers State High Court.”

The interpretations that will be given to these laws and judgments of the lower court by the superior appellate courts may at the end of the day be determiner of whether or not Justice Agumagu will remain on the bench.

The crisis may be another opportunity for the Supreme Court to lay to rest crisis which accompanies the appointment and disciplining of judicial officers especially in a highly politically charged environment.