WHY COURT OF APPEAL JUSTICES MUST NOT ACT IN VAIN

The appointment of the latest batch of Court of Appeal Justices has been strewn with controversies, not least the claim that the interviews conducted by the National Judicial Council was perhaps shambolic. Just when justice sector stakeholders thought that the ghost of the troubled exercise was to be laid to rest with the scheduled swearing-in of the justices, the ceremony was postponed indefinitely ostensibly to enable the new justices “clear their desks in their various offices.” In this piece, KAYODE OGUNDAIRO posits that on the strength of the undisturbed judgement of the Supreme Court in OGBUNYIYA v OKUDO, any judicial acts done by the justices after their appointments would be a nullity and liable to being set aside on appeal.

The indefinite postponement of the swearing-in of the newly appointed justices of the Court of Appeal came to many as a shock, not least because of the reason adduced for the aborted exercise. This is a purely judicial matter outside the remit of the National Judicial Council (NJC).

If “clear their desks in their various offices to ensure that there are no outstanding issues before they assume their new responsibilities” suggests that the Justices should proceed to deliver judgments/rulings or discharge any other judicial role in the Federal High Court/High Court/ National Industrial Court under the guise of ‘clearing their desks”, that would, with great respect, amount to an exercise in futility on the strength of OGBUNYIYA v OKUDO (1979) 9 SC 32 as recently reinforced by UDEOGU v FRN.

OGBUNYIYA v. OKUDO dealt with provisions impari materia with ss. 283(2) and 290(1) of the 1999 Constitution (as amended) which are crystal clear.

238 (2): “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”.

290 (1): A person appointed to any judicial office shall not begin to perform the functions of that office until he has declared his assets and liabilities as prescribed under this Constitution and has subsequently taken and subscribed the Oath of Allegiance and the Judicial Oath prescribed in the seventh Schedule to this Constitution.

In OGBUNYIYA v OKUDO, the submission of Chief F.R.A. Williams on behalf of the Appellants, was that by virtue of the appointment of Nnaemeka-Agu J. (as he then was) as expressed in Exhibit SC.1, he ceased to be a Judge of the High Court of Anambra State on the 15th June, 1977, two days prior to delivery by him of the judgement on appeal.

The reaction of Mr. Afolabi Lardner (of counsel) for the Respondents was that until the Learned Judge was sworn in as Justice of the Court of Appeal, he was precluded by virtue of Section 128 of the Constitution of the Federation No. 20 of 1963 from entering upon the duties of his office, so that in the absence of evidence that he had on or prior to the 17th of June, 1977 been sworn in as a Judge of the Federal Court of Appeal, he was on that date still a Judge of the High Court of Anambra State.

The Supreme Court construed Section 128 of the Constitution of the Federation No. 20 of 1963 as amended by section 1(c) of the Schedule to The Constitution (Amendment) (No. 2) Decree No. 42 of 1976 (impari materia with s. 290(1) of the 1999 Constitution, as amended) which made it imperative that “a Judge of the Federal Court of Appeal” shall not enter upon the duties of his office unless he has “taken or subscribed the Oath of Allegiance and such oath for the execution of the duties of his office as may be prescribed by Parliament”.

Allowing the appeal, the Supreme Court set aside the judgment delivered by Justice Nnaemeka-Agu (after his appointment as JCA but before he took the requisite oath) and ordered a trial de novo.

The Supreme Court held thus:

“A close look at Section 128 of the Constitution (No. 20 of 1963) as amended by the Schedule to Decree No. 42 of 1976 shows clearly that the section is intended to lay down a condition precedent to the functioning but NOT the appointment of a Judge. That section impliedly recognises the fact of appointment (already as a Judge) of the incumbent of that public office but makes the swearing of the prescribed oaths condition precedent to his functioning in that office. The language of the section reads:
“A Judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos NOT a person appointed to be a Judge of the Supreme Court, Federal Court of Appeal and of the High Court of Lagos shall not enter upon the duties of his office (not, be it noted, enter upon his office) unless he has taken or subscribed the Oath of Allegiance and such oath for the due execution of his office as may be prescribed by (Italics supplied by Court).
… The language of section 128 aforesaid is directed to the entering by a judge (not by a judge designate) upon the duties of his office (not, upon his office).

This should ordinarily rest the matter.

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. To ADVERTISE in CITY LAWYER, please email citylawyermag@gmail.com or call 08138380083. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

A/COURT SCREENING: ‘I PLAYED KEY ROLE IN NJC DUMPING NOMINEES,’ SAYS CAROL AJIE

RIGHT OF REPLY

Fiery Bar Activist and former Secretary of the Nigerian Bar Association (NBA), Lagos Branch, Dame Carol Ajie has said that she contributed to the dropping of two candidates who allegedly performed poorly during the National Judicial Council (NJC) screening of the nominees for elevation to the Court of Appeal.

In a rejoinder to CITY LAWYER‘s report on the matter, Dame Ajie narrated her high-profile interventions on the controversial screening exercise, adding that CITY LAWYER did not credit her efforts as contributing to the reversal of fortunes suffered by the affected jurists.

Below is the full text of the rejoinder which was sent to CITY LAWYER.

NBA vs NJC Appellate Court Nominees: Mr Emeka Nwadioke – Unfair Reporting

As you privately twice acknowledged yesterday Saturday 20th Match I wrote self inspiringly interventionist views on the above subject many including Gambo Saleh NJC Secretary received it I I also sent it to Ms Hadiza Supreme Court Chief Registrar on my contact list via WhatsApp and email to a former CJN Mariam Muktar GCON. I believe a number of people were surprised that I backed Akpata on anything cos they had perceived I won’t and couldn’t back him.

Perhaps I don’t know the part of the real reason for NJC U Turn arose from the shocking endorsement I have Akpata though you are too dishonest to admit it in your poor article which I have trashed.

A former NBA GS who shall not be named wrote me a long whatsapp text yesterday to dump support for Akpata on this I didn’t buckle. I said Akpata is right.

I sought on my own initiative to back him that is why I wrote my interventionist text like that. If I didn’t want to back him I know how to write Read a draft of what would have appeared anti Akpata

An NBA President Akpata who never hid his aversion for the court room suddenly becomes an advocate of who a good appellate court Judge should be. Please Distinguished readers trash it. You know Akpata is conventionally greedy he has zero record on public interest chances are that as NBA President he probably had his preferential candidates who didn’t pass the mark set by CJN/NJC A transactional lawyer indeed should not be telling a CJN who is eligible for the bench when not his turf. Thank U
End

Chidi Odinkalu himself cannot file a motion he knows nothing about litigation he has no practice he was never in practice.

But why put down Akpata or Chidi they are my Brothers I said one from Midwest plus Akpata actually is UNIBEN Alum. As a Catholic Christian I said he has taken a right step let me publicly support him. That z it. As for Chidi he is my Brother I call him Brother CAO hus (sic) initials

If I wrote that anti Akpata and shared it within half an hour it would get to CJN through Ahmed Gambo.Saleh and Madam Chief Registrar SC or other sources. Trust me they will say Iroko Tree Ajie is against Akpata and she is for us CJN CR SC NJC Secretary and the fight goes on . Note there is no NBA nominee into FJSC I didn’t support Usoro and they read me and as you know CJN has not yet resolved it

My friends may not be happy with me that I backed Akpata openly I mean my friend Madam CR SC and then I am now reading a dishonest report in City lawyer magazine that failed to give credence to efforts in a struggle I courageously took part in my name on it

If you don’t know how to address me I am a Georgetown scholar I read for it on my degree certificate are the appellation Professor Scholar Juris I didn’t inherit it and as a renowned Constitutional Law lawyer I changed a few provisions in the Nigerian Constitution through documented struggles google search Carol.Ajie and Constitutional Law I have an Intl human rights certificate from Georgetown which cannot be bought with all the money in the World I worked to get my credentials Dues fully paid.

Best regards
CA

Copy Mr Akpata etc

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. To ADVERTISE in CITY LAWYER, please email citylawyermag@gmail.com or call 08138380083. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

SHOCKER: A/COURT NOMINEES CAN’T EXPLAIN ‘LIS PENDENS,’ NJC DUMPS THEM

There are strong indications that under-fire National Judicial Council (NJC) may have dropped two jurists who performed woefully during its screening exercise for appointment as Court of Appeal justices.

This may not be unconnected with their inability to answer basic legal questions as well as the backlash the NJC has been receiving following the unprecedented revelation by Nigerian Bar Association (NBA) President, Mr. Olumide Akpata that the entire screening exercise was near shambolic.

CITY LAWYER was told by a reliable source that the dropped candidates (names withheld) are from Kebbi and Katsina States.

Respected human rights activist and former Chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu hinted on the NJC’s decision when he tweeted thus: “The President of @NigBarAssoc, @OlumideAkpata, deserves considerable credit for his advocacy on standards of judicial appointments. He managed to pare back this recent list of #CourtOfAppeal nominees from 20 to 18. The 2 candidates reportedly didn’t know what #LisPendens means! https://t.co/Y9B9bVwoBF.”

CITY LAWYER had gathered from an impeccable source that at least one of the candidates was unable to explain the term, ‘lis pendens.’ Our source said the aspirant argued that the subject ‘had not come before his court!’ Akpata had alluded to this when he sensationally revealed that “Important legal issues that were occasionally put to the nominees could not be answered,” though he refused to give details. Black’s Law Dictionary defines ‘lis pendens’ as “a Latin phrase for a pending suit or a person who has been suspended.”

Narrating his disappointment with the entire screening exercise, Akpata told members of the NBA National Executive Committee (NBA-NEC) at their quarterly meeting in Uyo, Akwa Ibom State, that the screening exercise was akin to “an old school boys meeting.”

His words: “What I saw and experienced at the NJC meeting on the appointment of judges to the Court of Appeal left me aghast. At a point, I, as a “Johnny Just Come’ (new attendee), had to ask, ‘Are these people really going to the Court of Appeal?’

“Important legal issues that were occasionally put to the nominees could not be answered. The whole proceedings appeared more of an old school boys meeting. When I wondered at this, I heard things like, ‘They will learn on the job.’ We were to interview 20 nominees at a point but only 2 hours was allocated for this important exercise. That meant six minutes only for each nominee. What is this? Let me assure you that the NBA will never be a rubber stamp participant at such bodies. You can quote me.”

CITY LAWYER had exclusively reported that Akpata had also written a petition to the Chief Justice of Nigeria (CJN) and NJC Chairman, Justice Tanko Muhammad on the issue.

The NJC is yet to respond to the indictment by the NBA President at press time.

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. To ADVERTISE in CITY LAWYER, please email citylawyermag@gmail.com or call 08138380083. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.

 

APPEAL COURT SCREENING: SCANDAL ROCKS NJC, AS AKPATA WRITES CJN

• PRESSURE MOUNTS ON NBA PRESIDENT TO RECANT

The last may not have been heard on the scandal rocking the screening of candidates for appointment to Nigeria’s Court of Appeal, as it has emerged that the Nigerian Bar Association (NBA) President, Mr. Olumide Akpata wrote to the Chief Justice of Nigeria, Justice Tanko Muhammad on his reservations.

This is coming on the heels of a press statement by the under-fire National Judicial Council (NJC) recommending the appointment of 18 Justices of Court of Appeal and 8 heads of court following its 94th Meeting held on 17 to 18 March, 2021. The Council also constituted a committee to investigate a judge and issued warning letters to some judges.

A source who is familiar with the controversy told CITY LAWYER that Akpata had written to Justice Muhammad, who also doubles as the NJC Chairman, intimating him of his strong reservations on the screening process, adding that the NBA President was scandalized by the shoddy manner the screening was conducted.

In a searing and unprecedented indictment of the apex policy making body in the legal profession, Akpata had lampooned the screening of the jurists, reportedly saying: “What I saw and experienced at the NJC meeting on the appointment of judges to the Court of Appeal left me aghast. At a point, I, as a “Johnny Just Come’ (new attendee), had to ask, ‘Are these people really going to the Court of Appeal?’ Important legal issues that were occasionally put to the nominees could not be answered. The whole proceedings appeared more of an old school boys meeting. When I wondered at this, I heard things like, ‘They will learn on the job.’ We were to interview 20 nominees at a point but only 2 hours was allocated for this important exercise. That meant six minutes only for each nominee. What is this? Let me assure you that the NBA will never be a rubber stamp participant at such bodies. You can quote me.”

There are strong indications that Akpata’s comments may have drawn the ire of many jurists especially the conservative bloc in the legal profession. CITY LAWYER gathered from an impeccable source that pressures are being mounted on the NBA President to recant or engage in some damage control, given the backlash generated by the comments.

The NJC has not responded to the damning indictment at press time.

Copyright 2020 CITY LAWYER. Please send emails to citylawyermag@gmail.com. Join us on Facebook at https://web.facebook.com/City-Lawyer-Magazine-434937936684320 and on TWITTER at https://twitter.com/CityLawyerMag. To ADVERTISE in CITY LAWYER, please email citylawyermag@gmail.com or call 08138380083. All materials available on this Website are protected by copyright, trade mark and other proprietary and intellectual property laws. You may not use any of our intellectual property rights without our express written consent or attribution to www.citylawyermag.com. However, you are permitted to print or save to your individual PC, tablet or storage extracts from this Website for your own personal non-commercial use.