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Rivers CJ’s suspension: Matters arising

Former President of the Nigerian Bar Association NBA and member of the NJC, OCJ Okocha SAN said over the weekend that there was nothing illegal in the suspension of Justice Peter Agumagu by the NJC.
The former NBA President said that the judgment of Justice Lambo Akanda did not authorize or mandate the Rivers State governor to appoint or swear in Agumagu without a recommendation from the NJC.
According to OCJ Okocha, “as it were, and in so far as Justice Agumagu was at the material time the President of the Customary Court of Appeal of Rivers State, the NJC had and still has the plenitude of power to exercise disciplinary control over him.
‘My humble submission is that it was in furtherance of the aforesaid provisions of the constitution that the NJC considered a report that Justice Agumagu had been appointed, confirmed and sworn-in as the CJ of Rivers State on the 18th March, 2014, and thereupon decided to investigate the matter, and duly queried Justice Agumagu, and also suspended him from office as a Judicial Officer, pending the outcome of investigations aforesaid.
 “It seems to me undeniable that the decision to investigate, the query and suspension as aforesaid are all within the powers of the NJC, and the argument of Femi Falana, that the NJC has no power to suspend Justice Agumagu is unsustainable,”  OCJ said.  
On whether or not the NJC was right when it placed Agumagu on suspension before issuing him a query to defend his action, an Abuja base legal practitioner,  Alasa Ismail, said “we are of the view that the decision is legally sound on the authority of the Public Civil Service Rules.
Rules No. 030406 of the Public Civil Service Rules (2008 Edition) as contained in the Federal Republic of Nigeria Official Gazette No.57 of August 25, 2009, vol.96 (Government Notice N0.278) states: “suspension shall apply where a prima facie case, the nature of which is serious, has been established against an officer and it is considered necessary in the public interest that he/she should forthwith be prohibited from carrying out his/her duties pending investigation into the misconduct.’’
 “As a CJ, he sits at the top of the state’s machinery for dispensing justice. Great injustice will be done if he is allowed to illegally act as CJ.
“As the CJ of a state, his responsibility includes posting judges to different divisions of the court and assigning cases to judges including himself, in other words, he will preside over some matters too.
“But it is trite law that ‘you can’t place something on nothing. It follows that any actions he takes while acting illegally are liable to be struck down as a nullity. What is at stake is more than a mere appointment. NJC had to act to stop a catastrophe,” Alasa said.
Ahuraka Isah, Media Aide to the CJN, said that the NJC viewed the doing of an unconstitutional act (in the instant case, acceptance of the post of a CJ without recommendation by NJC) as a serious breach of the constitution. The council is also of the view that it is in the public interest to suspend him.
Going by the provision of section 271 (1) of the 1999 Constitution it is glaringly clear that the NJC has been given a role to play in the appointment of Chief Judges (CJs) of the States where the section states:
“271 (1) The appointment of a person to the office of a Chief Judge of a State shall be made by the governor of the state on the recommendation of the NJC subject to the confirmation of the appointment by the House of Assembly of the State.
It can be seen here that although the governor of a state has been vested with the power to appoint the CJ of his own state, that power is not absolute as the governor has to share the power with the NJC in recommending suitable persons and the State House of Assembly in confirming the appointment.
It is in the spirit of the constitution in ensuring checks and balances between the three arms of government that the role of the governor in appointing and exercising disciplinary control over the chief judge of his state is subjected to the participation of the NJC and the House of Assembly of the state in the exercise to ensure transparency and observance of the rule of law.
However, Rivers State Commissioner for Information and Communications, Ms. Ibim Semenitari, said that the NJC’s decision on Agumagu is  unprecedented, unlawful and contravenes  the clear provisions of the Nigerian constitution and the established tenets of federalism.”
According to her, Justice Agumagu’s appointment as Chief Judge of Rivers State fulfilled all the provisions as prescribed by the constitution of the federal republic, the Rivers State Government further.

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