Date: 2014-01-28

The National Judicial Council (NJC) has been at war with several state governors over who to appoint as acting Chief Judges or substantive Chief Judges of their states following the retirement of the Chief Judges after attaining mandatory age of retirement.

The power tussle between NJC and the state governors, and even the presidency has generated all manners of crisis in some states and the nation's judiciary in recent time.

Almost three years after she was removed from office by the then Kwara State Governor Bukola Saraki, the Supreme Court on February 17, 2012 reinstated the Chief Judge of Kwara State, Justice Raliat Elelu-Habeeb, holding that the state governor did not have the absolute power to remove her from office without input from the National Judicial Council.

Following the sacking of Justice Shedrack Nwanosike as the Acting Chief Judge of Abia State by NJC for age falsification, Governor Theodore Orji appointed Justice Stella Nwakanma as the fifth Acting Chief Judge of Abia State on August 17, 2013. Abia State has had no substantive Chief Judge for the past three years since the retirement of Justice Sunday Imo in December 2010.

When Justice Iche Ndu retired on August 19, 2013 as the Rivers State Chief Judge, Governor Rotimi Amaechi appointed the President, Rivers State Customary Court of Appeal, Justice P.C.N Agumagu as Acting Chief Judge of the state.

Section 271 (4) of 1999 Constitution states 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 shall appoint the most senior judge of the High Court to perform those functions."

But for political expediency, Amaechi insisted that Agumagu who is the oldest judge in the state judiciary, though not a state High Court judge, is the most qualified to be appointed as Acting Chief Judge irrespective of the specific letters of the constitution.

Besides, NJC lacks the constitutional power to impose Justice Daisy W. Okocha, elder sister to the past president of NBA, OCJ Okocha (SAN), who is the most senior High Court judge after the retirement of Justice Ndu on Governor Amaechi for appointment as Acting Chief Judge.

The Rivers State Attorney General and Commissioner for Justice, Mr Worgu Boms stated recently that, "Without reference to any one, to no one whatsoever, a governor can make the appointments of Acting Chief Judge until a substantive one is appointed on recommendation of the NJC upon approval of the State House of Assembly. Neither the House of Assembly nor the NJC has any role in this acting appointment."

According to Boms, NJC had after its meeting in December 2013 written letters to all judges of the High Court in Rivers State that should they accept the acting appointment, the acceptance would be considered an act of misconduct. "Further, in that letter to the judges, the NJC stated that the governor should appoint a particular judge who, in its own judgement, is the most senor judge, as the Acting Chief Judge. Clearly, the NJC is dictating to the governor, the particular candidate, to be appointed as Acting Chief Judge of the State."

In the same vein, Adamawa State House of Assembly had during its plenary session of December 23, 2013 rejected Justice Ishaya Banu duly nominated by NJC for appointment as substantive Chief Judge of that state on the grounds of low performance and ill-health. Both the state House of Assembly and Governor Murtala Nyako are insisting on the appointment of the current Acting Chief Judge, Justice Nathan Musa, as substantive Chief Judge because "he is a better hand in view of his current effort to transform the judiciary" in the state.

Musa became the fourth Acting Chief Judge of Adamawa State since July 2011 when the substantive Chief Judge, Justice Bemare Bansi, retired from the bench.

Nyako refused to appoint an Acting Chief Judge for the state until members of the state branch of the Nigerian Bar Association (NBA) went on strike which led to the appointment of Justice Bathimawus Popo Lawi as Acting CJ, although he was not the most senior judge in the state then.

Justice Lawi first served for three months and another three months until his death.

Then Justice Ishaya Banu who was second in hierarchy acted for three months, while Justice Bobboi Umar served for three months which was extended by another three months. Thereafter, Nyako appointed Justice Nathan Musa on December 30, 2012 for an initial period of three months. This is renewed every three months till date.

Governor Nyako had in October 2012 sent the name of his wife, Justice Binta Murtala Nyako of the Federal High Court, to the NJC as his nominee for state Chief Judge which the council threw into the dustbin. Besides, Justice Binta Nyako is junior in rank to several judges of the Adamawa State High Court.