CROSS-RIVER CHIEF JUDGE: OF IMPUNITY, HEROES AND LESSONS

Fiery human rights lawyer, Ebun-Olu Adegboruwa, SAN x-rays the year-long debacle surrounding the appointment of a substantive Chief Judge for Cross River State. While lampooning the ‘executive lawlessness’ that birthed the crisis, he argues that the quagmire threw up a few heroes and lessons

On February 8, 2021, the Honourable Justice Akon Bassey Ikpeme, was sworn in as the substantive Chief Judge of Cross-River State, in a colourful ceremony that was attended and watched live by many. It has been a tortuous journey, for My Lord in particular. How did it happen? On March 3, 2020, Governor Ben Ayade shocked the nation and the judiciary in Nigeria when he proceeded to swear in Honourable Justice Maurice Eneji, as the Acting Chief Judge of Cross-River State, to take over from Honourable Justice Ikpeme, whose tenure expired in acting capacity on March 2, 2020. It was an executive act that blew dust on the face of the judiciary directly, ranking as it were, as the greatest act of impunity, so far displayed against the most sacred institution of governance, by the executive arm. At all relevant times, the Honourable Justice Ikpeme was the most senior judge in the Cross-River State judiciary, but then she is a lady and she is from Akwa Ibom State by birth, although married to a citizen of Cross-River State. Honourable Justice Eneji was at the time next to her in the rank of seniority and above all, a man.

Governor Ayade had forwarded the names of Honourable Justices Ikpeme and Eneji to the National Judicial Council, for recommendation for appointment as the substantive Chief Judge of the State, with Ikpeme as the preferred candidate and Eneji as the reserved candidate, ostensibly based on seniority. The NJC in December, 2019, interviewed both candidates, whereupon it found worthy and recommended Ikpeme as the substantive Chief Judge, being the most senior judicial officer and she had no negative report whatsoever. Then commenced the various schemes and spins, targeted mainly at denying Ikpeme J., the substantive position, purely on the grounds of gender and her state of origin. It was then suddenly realized that she is from Akwa Ibom State, thereby putting her loyalty to Cross-River State in doubt. But all that has ended now, partly due to the role played by the Nigerian Bar Association, led by its dynamic President, Mr. Olumide Akpata.

My Lord Honourable Justice Akon Ikpeme started her career in Calabar and later got married to a Cross-Riverian. At the creation of Akwa-Ibom State, members of staff of the judicial arm were given the option to move to the new (Akwa-Ibom) State or remain in the old (Cross-River) State. Ikpeme continued to discharge her duties as a judge in Cross-River State, handled several cases and delivered judgments thereon, without any dent on her judicial career, till she rose to become the most senior judge in the State. The former Chief Judge therefore had no difficulty in recommending her for appointment as the Chief Judge. Then the executive arm of government under Governor Ayade began to put obstacles in her way, first with the composition of the State Judicial Service Commission and thereafter the manipulation of the State House of Assembly. On March 2, 2020, the Cross-River State House of Assembly had a stormy and rowdy session, in debating the issue of approval of the substantive chief judge. Through voice vote, they claimed to have rejected Ikpeme’s candidature due mainly to ethnicity. It was the first time in the history of Cross-River State that the most senior judge would be denied appointment as the substantive Chief Judge.

Now, section 271 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that ‘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 confirmation of the appointment by the House of Assembly of the State’. The simple interpretation of this section involves some processes, but surely the most fundamental of them all is that the appointment of the chief judge is the responsibility of the governor. That process is commenced by the State Judicial Service Commission, which will interview and recommend candidates to the governor for appointment and the governor will in turn send the name of his nominee to the National Judicial Council. If he sends two names to the NJC and both are recommended as suitable, as was done in this case, he has to take a decision first, before activating the process of confirmation by the State House of Assembly.

The case of Ikpeme J, has brought to light the inadequacies of the 1999 Constitution, which many are taking advantage of to perpetuate lawlessness and impunity. The legislative houses of the States are all under the control and manipulation of the governors, such that no meaningful debates or legislative activities go on in those hallowed chambers, except in a few States. By law, it was not yet time for Ikpeme J, to retire from the judicial service of Akwa Ibom State and by swearing in Eneji J, her junior, as the Acting Chief Judge at that it, it meant that Ikpeme J, would take directives from and be under the authority of Eneji J. Seniority is one of the most cherished traditions of the legal profession, both at the Bar and on the Bench. And this is why section 271 (4) of the Constitution was enacted to uphold this age-long tradition, by stating that ‘if the office of the 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’ (emphasis supplied).

From the clear provisions of section 271(4), it cannot be in doubt that the intent of the drafters of the Constitution was to allow THE MOST SENIOR judge of the State to be the occupant of the office of the Chief Judge, once a vacancy occurs. Even in other establishments outside the judiciary, such as the military, whenever it is the desire to appoint a junior officer to the highest position, all his seniors and contemporaries have to be retired compulsorily, as it will be absurd to retain them in service and expect maximum loyalty. It was therefore a game of chess in Cross-River State, since neither Governor Ayade nor his cronies in the Cross-River State House of Assembly commenced any proceedings in compliance with section 292 (1) of the Constitution, to remove Ikpeme J, in any manner known to law, the consequence of which was that she would have to continue to function in office as the most senior judicial officer in Cross-River State until she retires, notwithstanding the painful experience of her unwarranted persecution.

When all entreaties on Governor Ayade to do the needful fell on deaf ears, some human rights activists, led by the ever-militant Welfare Secretary of the NBA, Comrade Kunle Edun, filed a suit before the Cross-River State High Court, for judicial interpretation and application of section 292 of the Constitution. The trial Court upheld the objection of the State challenging the locus standi of the plaintiffs in the suit and the appeal to the Court of Appeal was dismissed, whereupon a further appeal is now pending at the Supreme Court. Now, part of the lessons in this whole saga is for all citizens to be conscious to demand for their rights, anytime there is a breach or likelihood thereof. Even though the court case was dismissed, it is on record that Governor Ayade cannot claim that the issue was a walk over for him. Activists in Cross-River State, Comrade Agba Jalingo, human rights lawyers, Femi Falana, SAN, Monday Ubani, Inibehe Effiong and many others too numerous to mention, rallied support from across the nation, to resist the impunity of the executive governor, to trample upon the judiciary, with such flagrancy. But today, we are talking about heroes.

While his men were out there slugging it out with Governor Ayade, Mr. Olumide Akpata adopted the carrot and stick approach, by constructively engaging Governor Ayade, the NJC and all other stakeholders, for a common solution, which culminated into the swearing in ceremony of February 8 instant. The fundamental implication of this selfless effort is simply that a people united can never be defeated. Even if another judge had been sworn in as the Chief Judge of Cross-River State other than Ikpeme, J, it would still have been a struggle won, for the people of Cross-River State in particular and the Bar and Bench, in general. The other hero of this struggle is the rule of law, eloquently championed by the NJC, the human rights activists and the NBA. Given the physical location of the champions of this noble cause, traversing Warri, Lagos, Abuja and Calabar was certainly not a tea party, given the security situation in Nigeria, alone. Not to talk of the financial implications, in convening and attending several meetings, filing and prosecution of the court cases and the concomitant effect of all these on their private practice. This is why they deserve the applause of all men and women of good conscience, as the laudable example that they have set will remain an indelible reference point to guide us in similar cases in future, which honestly, no one prays for.

In it all, commendation also goes to Governor Ayade, for allowing wise counsel to prevail and for upholding the oath of office he took, to respect, observe, defend and enforce the Constitution, without ill will, fear or affection. That is the way it should be, as there is nothing personal in the appointment of the Chief Judge of a State, being a tenured office that is purely statutory in nature. Should His Excellency have persisted, in defiance of the Constitution, to retain his preferred candidate in office as Chief Judge, it would have been a dangerous precedent, which even the court, as the major casualty, was not readily available to upturn. It is an irony of sorts, that the institution being defended failed, at the appropriate time when given the opportunity, to rescue itself, clinging as it were, to the discarded theory of locus standi, which even courts in foreign jurisdictions, have jettisoned in favour of local fishermen against multinational oil companies. It is rather unfortunate.

The Cross-River State House of Assembly also acted in a matured fashion, in reversing itself concerning the swearing in of Ikpeme, J., ultimately. Members of the CRSHA have only all opted to defend the Constitution, to preserve our noble institutions and to allow the rule of law to prevail, over the rule of man. But all of these efforts would have gone unnoticed but for the media, which kept the matter in the public domain throughout. It is gratifying that the NBA President has also opened up discussions with Governor Ayade on the fate of Magistrates in Cross-River State, who have worked for about two years without payment of their salaries and allowances. That will be the icing on this beautiful struggle, when Governor Ayade would demonstrate uncommon statesmanship, by granting unconditional approval for the payment of all outstanding entitlements of all judicial officers, who have labored and toiled to sustain his administration.

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‘PAY YOUR PENSIONERS NOW,’ COURT ORDERS NNPC

The National Industrial Court in Lagos has ordered the Nigerian National Petroleum Corporation (NNPC) and NNPC Pension Fund Limited to pay harmonised pensions to NNPC retirees. Justice Elizabeth Oji gave the two defendants 90 days within which to comply with the order, while also awarding N20,000 costs against them.

The judge made the order in a judgment delivered on Monday, which was obtained by a national newspaper yesterday.

She upheld the prayers made by the claimants, Dr. Ikechukwu Nwobodo and 13 others, through their counsel Adeleke Agboola, in a suit marked NICN/LA/329/2019. The judge directed the firms to pay the harmonised pension to the claimants from January 1, 1997 till date, in accordance with Section 173 of the 1999 Constitution.

The NNPC had contended that the payment of pension should be based on ‘affordability and sustainability.’ But, rejecting the argument, Justice Oji noted that a Federal Government Civil Service Circular in 1998 directed all government departments to implement harmonised pensions for public service retirees.

The judge held: “The defendants are hereby directed to pay to the claimants forthwith all accrued pensions calculated with effect from 1st of January, 1997 on emoluments currently earned by their serving counterparts …and subsequently all such pensions and when due.

“The defendants’ decision to pay the claimants pensions on the basis of ‘affordability and sustainability’ or ex gratias is ultra vires, null and void.

“The defendants are hereby directed to comply fully with the provisions of Sections 39 of the Pension Reform Act… and to fully fund the pension scheme in accordance with the directives of National Pension Commission.”

The full text of the judgement is available here.

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FLOOD SWEEPS AWAY ABUJA COURT CHIEF

A heavy flood has swept away the Director of Finance, High Court of Federal Capital Territory , Mr. Tony Okecheme. Okecheme was on his way to the Nnamdi Azikiwe International Airport in his official 2017 Toyota Camry when his car got stuck in the flood at Galadimawa roundabout, Abuja.

The finance director was swept away by the raging flood, but his driver, whose name could not be immediately ascertained, was rescued by some young boys in the area. The driver was said to have been taken to Asokoro hospital, but his boss was yet to be located as of the time of filing this report.

Eyewitnesses said the National Emergency Management Agency officials who came to the scene failed to rescue Okecheme and his driver who were reportedly trapped in the flood for about an hour before the water swept away the director.

His car, which was filled with mud water, was however pulled out of the ravines by the rescuers, who were angry over NEMA’s failure to rescue the man. Two young girls who claimed to be Okecheme’s children were seen weeping uncontrollably at the scene of the incident.

An FCT judiciary worker, who did not give his name, identified the car as belonging to Okecheme, noting that the man sent him N40,000 this (Friday) morning.

“I phoned him yesterday that I was broke and he promised to send me money before he travels today. I got N40,000 from him this morning,” he explained, as he showed our Correspondent the text message from the director.

The PUNCH reports that FCT Police spokesman, DSP Anjuguri Manzah, promised to find out the incident, saying he had not been briefed.

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ONNOGHEN: ACCESS TO JUSTICE WANTS UMAR SACKED

A leading human rights group, Access to Justice has called for the removal of Code of Conduct Tribunal Chairman, Mr. Danladi Umar, saying the move will restore confidence in the tribunal.

Reacting to the tribunal’s judgement on suspended Chief Justice of Nigeria, Justice Walter Onnoghen, Access to Justice (A2Justice) said that the tribunal is not independent of the executive arm of government.

In a statement jointly signed by Messrs Joseph Otteh and Daniel Aloaye, its Executive Director and Programme Officer respectively, A2Justice warned that with the spectre of a criminal charge hanging over the head of the tribunal’s chairman, Mr. Danladi Umar, the Executive arm is bound to arm-twist the jurist to do its bidding. It said: “It is clearly feasible to argue, at least theoretically, that all an executive government needs to do to get the Code of Conduct Tribunal groveling to its side is to raise the spectre of pursuing a corruption trial against its Chairman, Danladi Umar. That is just how vulnerable the leadership of the Code of Conduct Tribunal is. There needs to be a change in the chairmanship of the Tribunal if it is to inspire public confidence in itself.”

The human rights group described Onnoghen’s trial as “shambolic,” adding that the outcome of the trial was “pre-determined.”

It also carpeted the procedures adopted by the tribunal in reaching its verdict, saying they were “far too faulty and flawed to be regarded as a judicial process.”

Saying that it had no opinion on the guilt or otherwise of the Supreme Court jurist since he is presumed innocent by the Constitution, A2Justice added that “The bizarre and egregious procedure taken to unseat Justice Onnoghen was an unmistakable indication that no barrel was too deep to plumb in getting to achieve what the Tribunal wanted to achieve, and no rule or principle of law was strong or revered enough to forestall its plan.”

Below is the full text of the statement.


ABSURD. SHAMBOLIC. – TRIAL AND JUDGEMENT OF CODE OF CONDUCT TRIBUNAL IN FRN V. ONNOGHEN PLUMB THE DEPTHS OF TRAVESTY

Today, April 18, 2019, the Code of Conduct Tribunal in a judgment delivered by its chairman, Mr. Danladi Umar convicted Justice Walter Onnoghen on a six-count charge of false declaration of assets. The charges were filed on January 10th 2019 by the Federal Government of Nigeria following a petition to the Code of Conduct Bureau on January 9th 2019 by an organization (the Anti-Corruption and Research Based Data Initiative). Following its verdict, the Tribunal ordered Justice Onnoghen’s removal from judicial office as Chief Justice of Nigeria, as well as the seizure and forfeiture of the monies in his accounts. It also barred him from holding public office for ten years. The Code of Conduct Tribunal is a quasi-criminal court saddled with the responsibility of handling complaints of non-compliance with the Code of Conduct for Public Officers. The primary objective of the Code of Conduct Tribunal, as provided under its Enabling Act is to establish and maintain a high standard of morality in the conduct of their official functions by public officials.

Access to Justice (A2Justice) takes no position on whether Justice Walter Onnoghen committed the infractions with which he was charged or indeed is guilty of offences related to them. A2Justice abides by the rule of law principle that all persons are equal before the law and that no person should be above the law. However, a cardinal rule of law requirement is that courts and tribunals which exercise judicial powers should be independent of other arms of government and appear, in the perception of reasonable observers, to be so independent.

Unfortunately, the Code of Conduct Tribunal did not offer this guarantee of independence, neither its perception. Far from it. The Tribunal had, from the word go, drawn the handwriting on the wall indicating that it was bent on a particular outcome, and that it would look neither to the left nor to the right in the blind pursuit of that goal. At several pivotal junctures in the course of the trial, the Tribunal appeared to demonstrate that it was clearly on the same side with the government, and was not sitting as an unbiased umpire or judicial arbiter.

Nowhere was this more evident as when Danladi Umar and another member of the Tribunal granted, speaking figuratively, under cover of darkness on January 23rd 2019, an ex-parte Order removing Justice Walter Onnoghen as Chief Justice of Nigeria. The bizarre and egregious procedure taken to unseat Justice Onnoghen was an unmistakable indication that no barrel was too deep to plumb in getting to achieve what the Tribunal wanted to achieve, and no rule or principle of law was strong or revered enough to forestall its plan. It will not surprise many that the Code of Conduct Tribunal reached the verdict it did after using very questionable procedures from the very start.

It would be a serious fallacy to characterize the Tribunal’s verdict as one reached after a due process trial using even the lowest possible denominators of what a fair trial represents. The procedures adopted by the Tribunal in the case were far too faulty and flawed to be regarded as a judicial process. To reasonable observers, it would appear that the Tribunal’s procedure and speed were deliberately contorted to enable it reach its pre-determined outcomes, and its verdict was simply a reflection and product of the shambolic trial.

Undoubtedly, Justice Onnoghen’s trial before the Code of Conduct Tribunal was, in every way, grossly and grievously unfair, and no fair-minded court or tribunal could have descended to the depths the Code of Conduct Tribunal delved in trying to convict Walter Onnoghen on the charges against him in order to remove him from office. The Tribunal was so desperate to convict Justice Onnoghen that it had to overturn or side-step its previous judgments on similar matters, decisions such as those given in a prior case involving another Justice of the Supreme Court. A cardinal principle of our Common Law system is that similar cases are decided alike in other to prevent arbitrariness and caprice in the adjudication of cases.

This is not a way to fight corruption. There is no positive, but rather, there are plenty negatives to this flawed judgment. This judgment merely shows how much is still lacking in Nigeria’s courts and tribunals and how distanced they truly are from being independent vehicles of justice. Unfortunately, the Code of Conduct Tribunal has been headed for a long time by a person who himself has been the subject of corruption allegations, and that, in itself, is a major weakness.

More than changing its leadership, constitutional reforms must make the CCT a more independent institution. As Danladi Umar himself said in his judgment today, “…CCT also is not under the supervision of the National Judicial Council but the Presidency…’’. A Tribunal under the Presidency cannot be independent of the Presidency, which is a political institution.

Ultimately, the trial and judgment of the CCT will disparage Nigeria’s system of justice in the eyes of the international community. More than that however, they show that, despite elaborate constitutional arrangements to guarantee an independent Judiciary, as well as constitutional rights to a fair trial, the judicial process is still weak and leaking through many crevices leaving many citizens defenceless and exposed as a result. We see this situation in the Code of Conduct Tribunal. No democracy can flourish under such conditions.

For Access to Justice
Joseph Otteh Daniel Aloaye
Executive Director Programme Officer

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Rule of Law vs. National Security: What the Supreme Court Actually Said

President Muhammadu Buhari while giving an address at the opening ceremony of the Nigerian Bar Association (NBA) 2018 Annual General Conference, said: “Rule of Law must be subject to the supremacy of the nation’s security and national interest. Our apex court has had cause to adopt a position on this issue in this regard and it is now a matter of judicial recognition that, where national security and public interest are threatened or there is a likelihood of their being threatened, the individual rights of those allegedly responsible must take second place, in favour of the greater good of society.”

The assertion has raised controversies. CITY LAWYER LAW REPORT details below what the Supreme Court actually said in DOKUBO-ASARI V FEDERAL REPUBLIC OF NIGERIA: Continue Reading

NJC Recommends 21 Judges for Appointment

PRESS RELEASE
11th May, 2018
The National Judicial Council under the Chairmanship of the Honourable Mr. Justice Walter Samuel Nkanu Onnoghen, GCON, at its 86th Meeting, which was held on 8th and 9th May, 2018, recommended the under-listed names of twenty-one (21) successful candidates as Heads of Courts and Judicial Officers for the Federal/State High Courts and the Code of Conduct Tribunal:
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