Rivers State Attorney General and Commissioner for Justice, Prof
Zacchaeus Adangor, says neither the National Judicial Council (NJC) nor
the Governor of a State is obligated to recommend or appoint the most
senior Judge of the High Court as substantive Chief Judge of a State.
Adangor, who is also a Senior Advocate of Nigeria (SAN), made this
assertion while reacting to a statement credited to a group, Concerned
Lawyers in Rivers State led by Secretary of the Nigerian Bar
Association, Port Harcourt branch, John Owubokiri, impugning the
recommendation of Justice Simeon C. Amadi by the NJC to the Governor of
Rivers State for appointment as substantive Chief Judge of the State
upon the retirement of the current Chief Judge.
He argued that it was wrong for the Concerned Lawyers to rely on what
they seemed “Judicial tradition” to demand that the NJC should have
recommended Justice Joy Akpughunum to the Governor of Rivers State as
the next substantive Chief Judge based on seniority from amongst the
serving Judges on the High Court Bench of Rivers 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 Section 271(1),(2),(3) and (4) of the 1999 Constitution as
amended, he said there are two separate schemes governing the
appointment of Chief Judge of a State.
“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 Chief Judge of the State based on the recommendation of the
NJC.
“In order words, neither the NJC not the Governor is enjoined or
obligated to recommend and or appoint the most senior Judge of the High
Court as the substantive Chief Judge 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 Chief Judge of the State.”
He acknowledged that with respect to the appointment of an acting Chief
Judge 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.
” 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 Chief Judge but there is no such entitlement to the office of
substantive Chief Judge of the State. To put it plainly, seniority of
the judges on the High Court Bench is relevant only where the
appointment of the Chief Judge of the State is in acting capacity.
Seniority, has no relevance whatsoever where the appointment of the
Chief Judge of the State 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
Chief Judge 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
Hon. Justice Simeon C. Amadi, J, by the NJC to the Governor of Rivers
State for appointment as Chief Judge of Rivers State cannot be faulted.”
The Attorney General and Commissioner for Justice, advised the group to
seek constitutional amendments of Section 271(1) of the 1999
constitution , instead of resorting to sentiments on a purely
constitutional matter.
“For the avoidance of doubt, sentiments have no role in our
constitutional jurisprudence.”
