Moves by Governor Nyesom Wike of Rivers State to appoint Justice Simeon Amadi, as next Chief Justice of the state, against the most senior Judge, Joy Akpughunum, sparks off controversy .
By Clarice Azuatalam
It is usually said that: “History has a way of repeating itself ” and this is why observers are describing the current raging controversy in Rivers State Judiciary over the appointment of Chief Justice (CJ) of the State as an unusual normal
It happened during the administration of Dr Peter Odili who governed the state from 1999-2007. It also happened during the era of former Governor Chibuike Amaechi’s era of 2007-2015. It is currently a major news item of the moment, in the administration of Nyesom Wike who is running his second term in office as Governor.
Under Wike, the controversy in the state judiciary which hitherto has been peaceful witnessed started with a recent announcement that Justice Simeon Amadi, from Ikwerre has been “anointed” to succeed the incumbent CJ of the state, Justice Adama Iyayi-Lamikanra, a woman from Edo State.
Some lawyers in the state cried foul, on hearing the news item. The expectation was that Justice Joy Akpughunum, also a woman from Abua, Rivers State would naturally step in to occupy the highest ranking position in the state’s judiciary when Iyaye-Lamikanra retires in May, next month.
Eyebrows were raised when Amadi’s name popped up as the one whom the cap fits more than Akpughunum . That was against the order of seniority which has become the practice in the state. Indeed, Wike who is also a lawyer, on coming into office in 2015 resolved the crisis that once engulfed the state judiciary due to negligence of order of seniority in the appointment of CJ for the state then.
At that time, Justice Daisy Okocha, a woman from Ikwerre and the most senior Judge in the state was expected to succeed Justice Iche Ndu also from Ikwerre who served as CJ from 2001 to 2013 before he retired.
This was not to be because Amaechi who governed the state at that time by-passed Okocha and appointed Justice Peter Agumagu, also from Ikwerre as new CJ, against recommendation of the National Judicial Council (NJC). Agumagu was the President of Rivers State Customary Court of Appeal in the state. at that moment . This threw up a lot of litigations resulting to the closure of courts in the state for nearly two years.
It was in this state of affairs that Wike came into office and resolved the crisis by dropping Agumagu and appointing Okocha as the CJ of the state.Wike’s action opened the courts and peace returned to the judiciary.
When Okocha retired in January 2016, Iyayi-Lamikanra who was the most senior judge in the state and hailed from Edo state was seamlessly appointed the CJ and the judiciary in the state remained calm till now that she is about to retire.
Since the appointments of Okocha and Iyayi-Lamikanra, both women, followed the order of seniority and did not generate any rancour, some lawyers and even observers were of the belief that the governor would tow the same path by quietly appointing Akpughunum to become the next CJ. Surprisingly, Amadi is now the chosen one.
Reacting to this, some concerned lawyers in the state led by Secretary of the Nigerian Bar Association, Port Harcourt branch, John Owubokiri kicked against this appointment made by the NJC. Their opposition was because Akpughunum’s name was not amongst those forwarded to the NJC in the first place.
Coming under the aegis of Concerned Lawyers in Rivers state, the group of lawyers in the state kicked against this approval by the National Judicial Commission (NJC) of the appointment of Amadi, as the CJ of the state, to replace Iyayi-Lamikanra, who is set to retire in May 2021.
The group said that the approval was against an established tradition of seniority applied in the appointment of CJs of the state as the most senior, Akpughunum is supposed to be in the position.
The lawyers further expressed shock that the name of Justice Akpughunum was not on the nomination list sent to the NJC in the first place by the state government. Such an action, they lamented, was capable of throwing the Rivers judiciary into crisis as was experienced in 2014 when the then Governor Amaechi, against the recommendation of the NJC appointed Agumagu as CJ over the most senior judge in the person of Okocha .
They stated: “Our shock flows from our memories of the ugly crisis the judiciary was embroiled in the last time an adventurous governor stepped over the most senior judge of the High Court to appoint another judge.”
They said that the consequent avoidable judicial crisis in the state then was regrettable and one that should be avoided by the incumbent governor, who resolved it on coming to office in 2015.
They went on: “That decision of Wike to nominate the most senior judge of the judiciary for appointment as CJ was hailed by the legal profession and civil society especially because the nominee was not an indigene of Rivers state.
“The governor was hailed because he kept faith with a hallowed tradition even in that unlikely situation; this tradition which is also practised in the apex court of Nigeria, the Court of Appeal and the federal courts of first instance, that is, the Federal High Court and the National Industrial Court of Nigeria, dissuades unhealthy competition and jostling for leadership, promotes the independence of the judiciary, assures seamless transition and succession, continuity and avails the public the certainty of experience in office.”
Continuing, they said that the legal community in the state is at a loss as to why Akpughunum was excluded by the state government in the list of nominees sent by the state to the NJC for consideration in the succession to the chief judgeship of Rivers.
“They also stated: “Why was the NJC mischievously presented with a fait accompli to make a choice between candidates that, by judicial tradition, ought to have been considered only after the most senior was found unworthy or unqualified by the NJC?
“There has been great disquiet in legal circles since this unsavoury news broke out last Friday. Theories of political calculations and ethnic bias are being churned out to explain this policy flip by a government that prides itself as being respectful of the law, judicial tradition and the judiciary.
“A storm is brewing in Rivers state as a result of this indiscreet application of executive power to pervert judicial tradition. We lay no blames at the feet of the NJC but we humbly urge the august body to cause an investigation to be carried out to ascertain the reasons tradition was jettisoned for unknown factors and considerations. We also humbly urge the government of Rivers state to retrace its steps before the matter escalates into a full-blown crisis.”
Reacting to the complaint raised by the Concerned Lawyers, theRivers State Attorney General and Commissioner for Justice, Prof Zacchaeus Adangor, said neither the NJC nor the governor of a state is obligated to recommend or appoint the most senior Judge of the High Court as substantive CJ of a state.
Adangor, who is also a Senior Advocate of Nigeria (SAN), argued that it was wrong for the Concerned Lawyers to rely on what they termed “judicial tradition” to demand that the NJC should have recommended Akpughunum to the governor of Rivers state as the next substantive CJ based on seniority from amongst the serving judges on the High Court Bench of the state.
The Attorney General and Commissioner for Justice explained that his understanding of the law is that a rule of “judicial tradition” if one really exists, is only relevant where there is no applicable rule of substantive law governing the particular issue in question. According to him, the rule of judicial tradition cannot be relied upon to subvert or supplant an applicable rule of substantive law on any issue.
Citing a section of the constitution, he stated: “It is clear from a literal construction of the said provisions that under section 271(1) of the constitution, read together with sub-sections (2) and (3) thereof, there is no prescription that the governor shall appoint the most senior Judge of the High Court as the substantive CJ of the state based on the recommendation of the NJC.
“In order words, neither the NJC nor the governor is enjoined or obligated to recommend and or appoint the most senior Judge of the High Court as the substantive CJ of the state. This leaves the NJC with discretionary power to recommend any Judge of the High Court of the state that is considered most suitable, to the governor, for appointment as the substantive CJ of the state.”
He also acknowledged that with respect to the appointment of an acting CJ of the State under Section 271(4), the Constitution explicitly states that the governor shall appoint the ” most senior Judge of the High Court” to perform the functions of that office.
Again he stated: “It is clear from the foregoing that the most senior Judge of the High Court of the State is entitled to be appointed by the Governor as the Acting CJ but there is no such entitlement to the office of substantive CJ of the State. To put it plainly, seniority of the judges on the High Court Bench is relevant only where the appointment of the CJ of the state is in acting capacity. Seniority, has no relevance whatsoever where the appointment of the CJ is in a substantive capacity.”
Adangor, maintained that if the framers of the 1999 constitution had intended to make seniority a requirement for the appointment of the CJ of the state in substantive capacity, they would have stated so expressly.
According to him, a cardinal rule of interpretation of plain and unambiguous provisions of statutes including Section 271 of the constitution as amended, is that where the words of a statute are plain and unambiguous, the court cannot in the exercise of its interpretative jurisdiction add or subtract from the provisions in order to make them conform to the judge’s own view of sound social policy.
“It is submitted that on the state of the law, the recommendation of Amadi by the NJC to the governor of Rivers state for appointment as CJ of Rivers State cannot be faulted,” Adangor declared, advising the Concerned Lawyers to seek constitutional amendments of Section 271(1) of the 1999 constitution, instead of resorting to sentiments on a purely constitutional matter as “sentiments have no role in our constitutional jurisprudence.”
Wike in his own reaction also spoke in the same vein saying that he will not succumb to sentiments over who becomes the next CJ of the state as he has conveyed the letter of recommendation from the NJC to the State House of Assembly.
The governor who spoke when a delegation of Okpo Club of Nigeria visited him in Port Harcourt, said that the process of appointing a substantive CJ is based on constitutionality and not sentiments.
He also said: “I have conveyed the NJC’s recommendation to the House of Assembly. I am not the one who recommended, mine is to act on the recommendation of NJC. I never wrote letter to NJC, I am not a member of Judicial Service Commission (JSC).”
The names of two most senior judges of the state High Court, he said were submitted by the State Judicial Service Commission to the NJC early, to avoid the situation of having a CJ in acting capacity.
Continuing, Wike said: “Nobody can intimidate me with any kind of sentiment. I will do what is right. We knew the crisis that happened here in this state and people do not want to distinguish it.
“What was the crisis? JSC submitted Daisy Okocha’s name and Agumagu’s name. Of course, Daisy Okocha was the most senior. But even at that, Agumagu was the President of Customary Court of Appeal. NJC in their wisdom said no, we are going to recommend the most senior judge and recommended Daisy Okocha.
“The then Governor said no, I will not take the recommendation of NJC and went on his own to swear in Agumagu as acting CJ. The constitution is very clear. It is only the most senior that will be an acting CJ and that was the crisis.
“In this case, there is nothing like acting CJ. I don’t want to have acting CJ. I want to do my own thing on time and we did it on time. And JSC in their wisdom submitted two people’s name and NJC recommended one and you are now playing politics, that it is the governor.”
The NJC, he further said is constitutionally empowered to recommend who becomes a CJ, pointing out that it was mischievous for the International Federation of Women Lawyers (FIDA) and some lawyers to politicise the appointment of judicial officers by the NJC.
This same rancour erupted in the state in 2001 when Justice Felix Ichoku was retiring. Odili was the governor then and the two most senior Judges namely: Justice Sotonye Denton-West and Justice Elizabeth Membere (now late) were side lined.
Justice Iche Ndu who was of Isiokpo Division (in Rivers state) then and was said to be a classmate of Justice Mary Odili at the University of Nigeria, Enugu Campus was chosen and sworn in as the CJ of the state.
This threw up agitations in the judicial circle in the state as many lawyers complained that the order of seniority was not followed.
These two most senior judges in the state then later moved on with their lives. Though Membere later passed on but shortly after that, Denton-West was elevated to Court of Appeal and retired honourably a few years ago.
However, following the controversy being generated by the appointment of Amadi now and which has divided lawyers in the state, it is difficult to tell if Akpughunum and those on her side will just grin and bear it or will they begin to kick against it with litigations. The nominee of Wike for the CJ office was confirmed by the Rivers State House of Assembly a few days before the public holiday of April 2, 2021.