Symbol of Justice

With the rejection of Justices Olubunmi Oyewole, Suleiman Durosinlorun Kawu and Binta Nyako as Chief Judges of Osun, Kwara and Adamawa States respectively by the National Judicial Council (NJC), the judiciary may have firmed up its resolve to uphold standard in practice, writes Davidson Iriekpen

For some time, all has not been well between some states’ judiciary and their governors. This is on account of their choice nominees as Chief Judges of the states. Confronted with this challenge are Governors Rauf Aregbesola, (Osun); Abdufatah Ahmed (Kwara) and Murtala Nyako (Adamawa) over who comes in as Chief Judge of the states as the incumbents are due for replacement.

While Aregbesola preferred Justice Olubunmi Oyewole from the Lagos judiciary, Ahmed wants Justice Suleiman Durosinlorun Kawu for political consideration; Nyako would rather his wife, Justice Binta Nyako, stepped probably because of the comfort that comes with her choice. This development had, however, generated heated controversy in all the states with the bulk of it emanating from Osun because of the many meanings read to the choice of Oyewole in particular.

But last week, the National Judicial Council (NJC), put paid to the lingering distraction when it rejected the list sent in by the state governments and advised that new names be re-presented.

In the case of Osun for instance, the council, which is the recommending authority, at its meeting last Wednesday, reportedly declined to stamp the choice of Oyewole of the Lagos High Court as the favoured candidate of the governor, having been placed above two other senior judges in the state. Oyewole was tipped to replace the outgoing CJ, Justice Olaniyi Ojo.

The council was said to have directed that the appointing authority, to wit, the governor, should return with another list, observing strict seniority arrangement in the Osun State judiciary. If seniority is thus observed, the next in line in Osun State is Justice Bola Ojo. An insider disclosed that the council decided to step down the consideration of a new CJ until the governor complies with the council’s position to forward to it a new list based on seniority.

The rejection of Ahmed’s choice of Kawu was also based on seniority as observed by the NJC. But, it is believed that the governor may have opted for Kawu on the basis of zonal politics. While many had thought that the name of the acting CJ, Justice Olatunji Bamgbola being the most senior would be sent in for approval, Ahmed was said to have settled for Kawu because he is from Ilorin and also the son of a former Supreme Court judge.

The case of Adamawa is however understandable. Governor Nyako wanted to elevate his wife, Binta to that position, not minding seniority or the misgivings that such action would naturally attract. Binta would have replaced Justice Bamare Bansi if the NJC had approved of her husband’s list.

While the nominees from Kwara and Adamawa did not generate as much controversy, it was not so with Osun where the issue has torn the state’s judiciary apart. But with the NJC stand, it seems settled that Oyewole may have been out of contention, since he is not of the state’s judiciary.

Thus, faced with the impasse, THISDAY gathered that the NJC might be forced to convene an emergency meeting next month to pick one of the nominees as the CJ for the states, perhaps, owing to pressures.

The new criteria to be employed by the NJC in its decision when it reconvenes for the emergency meeting, THISDAY further gathered, would depend on when the candidates were called to the Bar, date of their first appointment by the state, outstanding judgments delivered and the level of integrity and courage exhibited in the discharge of their duties.

The constitution makes the recommendation of the council on appointment of judges a sine qua non to the power of the appointing authority to make a choice. For instance, Section 271 (1) of the 1999 Constitution states that: “The appointment of a person to the office of Chief Judge of a state shall be made by the governor of the state on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the state.”

The other two nominees on Osun’s rejected list, according to an insider, are Justice Ojo, who is the most senior judge of the State High Court and Justice Gloria Olagoke, President of the state Customary Court of Appeal. Both were appointed to the state Bench same day and serving in courts of coordinate jurisdiction, making them the most senior in the state’s judiciary.

However, Olagoke, who is of Edo State by birth and Osun State by marriage, is Ojo’s senior at the Bar. Justice Ojo, who is retiring any moment from now, was Olagoke’s immediate predecessor-in-office, before he was considered as the Chief Judge ahead of Justice Tunde Awotoye of the Osun State High Court when the then Chief Judge, Justice O. Ogunsola, died mid-way into his tenure. Awotoye was subsequently moved to the Court of Appeal.

With the reported directive of the council to the governor, Olagoke is expected to top the new three-person nomination list to the council, followed by Ojo and the third most senior in the state judiciary, Justice F.E Awolalu, the Administrative Judge, Ife judicial division.

THISDAY checks revealed that the choice of a successor to Justice Ojo, who is leaving office next month, had been complicated because of vested interests that had crept into the appointment and making what should have been a simple process caused so much ripples.

Unfortunately, when the subterranean moves by Aregbesola on the choice of Oyewole was first rumoured, the state government vehemently denied it.

The source said while the state governor recommended Justice Oyewole for the post because of the judge’s unquestionable character, the outgoing CJ, Olaniyi Ojo, prefers Justice Bola Ojo of the state High Court, claiming that she is the most senior judicial officer after him. On the other hand, Justice Olagoke is insisting that the post should be given to her since she has a ‘coordinate jurisdiction’ with Justice Ojo.

The convention in the judiciary, both at the federal and state levels has been that the most senior of the judges succeed the outgoing.  Convention proponents said it would amount to an insult and a vote of no confidence on them should the government appoint Oyewole as CJ. They also argued that the government could even appoint as CJ, any of the eight judges within the state judiciary if it is not comfortable with the two most qualified judges.

For many analysts, the nomination of Oyewole was a departure from the convention. Following the sudden demise of the state Chief Judge, Justice Fasasi, in 2010, the next judge in hierarchy to him, Justice Ojo, who hails from Igbajo in Osun State, stepped in, automatically. Ojo is, however, due to retire in November, having attained the age of 65 year, which is the mandatory retirement age for judicial officers.

In the 21 years of existence of the state, save for the ongoing controversy trailing Ojo’s succession, the appointments of CJs had been hitch-free. After Osun was carved out of the old Oyo State, Justice Akinola Apara, an indigene of Ilesa, between November 1991 and October 1996 headed the judiciaries of Oyo and Osun simultaneously. Between 1997 and 2001, Justice Adedotun Sijuwade of Ile-Ife headed the state judiciary and was succeeded between 2001 and 2002 by Ilesa-born Justice Olatunde Oluborode. Oluborode was succeeded by Ikirun-born Ogunsola, who called the shots from July 4, 2002 to May 20, 2010.

While some judicial officers and officials of the state government are said to have supported Oyewole, others have queued behind the two most senior judges in the state – Justices Olagoke and Ojo. Both seem to have a common enemy in the succession saga.

Although, Oyewole is said to be an indigene of the state, those who are opposed to his nomination argued that he is a total stranger to Osun State judiciary because he had been on the Bench outside the state for as long as he started his law career.

Apart from this, there are other reasons why a lot people in the Osun judiciary are not happy with Oyewole’s nomination. First, he was made a judge on May 24, 2001 during the tenure of Senator Bola Tinubu as Lagos State governor, and he is currently on number 33 in Lagos High Court hierarchy. Second, he is far junior in hierarchy to a lot of the judge the state. Despite the opposition against Oyewole’s choice, Aregbesola has forwarded his name to the NJC along with those of Ojo and Olagoke.

There are, however, a cross section of eminent lawyer who feel that Aregbesola did not do anything wrong with Oyewole’s nomination. For instance, Prof. Itse Sagay, Dr Kayinsola Ajayi, Chief Mike Ahamba, and Mallam Abubakar Malami, all Senior Advocates of Nigeria (SAN), listed competence, incorruptibility, managerial skills and courage as the basic requirements for the appointment of a CJ. They described the campaign against Oyewole as baseless.

The four SANs insisted that “the 1999 Constitution does not in any way recognise hierarchical succession to the post. The constitution only mandates the state governor to appoint a person with 10-year post-call experience who must be a member of the Nigerian Bar Association or the Bench. The question of appointing CJs on turn-by-turn basis without considering merit and competence has caused rot in the judiciary.”

Specifically, Sagay said: “You don’t need to be a native of a state to become a CJ of that state. The governor is constitutionally empowered to appoint a person on merit whether he is from Osun, Lagos, Kano or Enugu state judiciary. Aregbesola’s decision was borne out of intelligence and courage that is worthy of emulation all over the nation.”

Ajayi said: “Justice Adetokunbo Ademola was junior to Justice Madarike in the Supreme Court by the time he was appointed CJN. Justice Darnley Alexander was a white man, yet he was appointed the CJN. Justice Teslim Elias was the AGF when he was appointed the CJN.”

Ahamba, on his part, posited: “It is purely conventional that the CJs are appointed based on seniority. It is good to respect seniority, but there is no question of illegality if the governor decides to jettison it.”

For Malami, “if countries like Gambia can come to shop for competent Nigerian judges to man even her Supreme Court, what is wrong with Osun State governor going to Lagos State to procure a competent judge to be appointed a CJ?”

But reacting to their submissions, former Attorney General of Federation and Minister of Justice, Chief Richard Akinjide (SAN), contended that both learned men had their active days in legal practice during the military era hence, they cited irrelevant and mundane examples.

One of the affected judges who insisted not to be named noted: “The Supreme Court has said several times that in the interpretation of the constitution, the law should be read as a whole; and not in isolation. Let them read the whole of Chapter vii of the Constitution and marry it with their knowledge of separation of powers. Don’t they realise that if the judiciary is subjected to the manipulation of the executive, it means all the legislative, executive and judicial powers will be concentrated in one man – the Governor?”

Also, debunking some of the claims by the SANs, a pressure group, Osun Justice Forum said, “All other irregular instances cited by the Sagay group were during the military era,” and went ahead to asked: “Is the state government saying that all judges in Osun State are incompetent? “Has any of them ever been indicted for incompetence or dishonesty? Oyewole should wait for his time in Lagos and should not allow politicians to destroy his career. Thrice, he has applied to go to the Court of Appeal using Osun State quota and thrice, he has been rejected by the National Judicial Council because he never served in Osun. We call on women judges and the National Council of Women Societies to rise up to this challenge. This is the first time a female judge is about to emerge in Osun State.”

Buttressing the preeminence of convention in the nation’s justice system, a judge, who also chose to be anonymous said: “When convention is long in practice, it assumes the force of law.”

Backing his claim up with Britain’s use of conventions as common laws, the judge stressed that “conventions become laws when there is a lacuna in certain legal provisions. All the laws of a country cannot be written, therefore, conventions are used when the law is unspecific. The removal of caps or standing up for judges by people in court is not documented in Nigeria’s constitution but it is a convention that has taken the force of law.

“Also, every litigant has the right to appear on behalf of himself even up to the Supreme Court provided the punishment for the case does not attract a death penalty. But how many people appear for themselves in our courts? In the appointment of a CJN, there is no law that says the CJN should be selected from the Supreme Court but the convention has crystalised into that.”

Meanwhile, the state chapter of the People Democratic Party (PDP) has commended the NJC for ensuring sanity in the state judiciary and preventing Aregbesola from imposing Oyewole from the Lagos State Judiciary, on his seniors in Osun State as chief judge.

The Director of Media and Strategy, Prince Diran Odeyemi, in a statement in Osogbo, noted that the NJC acted well and that the action of the council was very apt in the interest of legal practitioners in the state and for the good of the society as a whole.

“The intention of Aregbesola to impose Justice Oyewole in Osun state is for some hatchet man’s job and lord him over many judges who are his seniors on the bench, which is very ridiculous and capable of rubbishing the judiciary and its structures.

“The fact that the NJC eventually refused to consider a list forwarded to it by Aregbesola in which he placed Oyewole above the other two most senior judges in the state confirmed that Aregbesola does not have the fear of God and failed to realise that his callous decision to impose Oyewole on his seniors in Osun will have adverse effect on the affected judges.

“We, therefore, want to join NJC in calling Aregbesola to comply strictly with the seniority arrangement in the Osun State judiciary as we continue to wonder why our governor does not believe in the ability of anyone residing in Osun State when it comes to appointment into positions of authority.

“This mindset gives bad impression about residents of Osun State and depicts them as inferior to those in Lagos state. It will be good if Aregbesola will learn from this shameful rejection of his stooge as Osun CJ and begin to appreciate people of Osun State and allow those in Lagos to face their business,” the PDP noted.

It is also pertinent to note that the Osun case is equally neck deep in politics as the opposition sees the choice of Oyewole as a form of compensation for a man who jailed a top notch of the party in South-west, Chief Olabode Ibiyinka George.

In 2009, Oyewole had convicted George and five others for inflating contracts to the tune of 100 billion between 2001and 2003 when George was Chairman of the Nigeria Ports Authority (NPA). George and others were found guilty on most of the charges and each of them was sentenced to a total of two and half years in jail which ran concurrently.

Convicted alongside George were former NPA Chief Executive, Aminu Dabo, Captain O. Adeboye, Abdullahi Tafida Zanna Mairaribe and Sule Aliyu. They were arraigned on a 163 court charge by the Economic and Financial Crimes Commission (EFCC) in a trial that spread over fifteen months.

Immediately the verdict was handed by Oyewole, George’s supporters went wild on the court premises and alleged that it was instigated by some powerful forces in the state who detested the gusts of the PDP stalwart.

Thus, Oyewole’s movement from Lagos to Osun has been interpreted by opponents as a move to clamp down on perceived opponents in Osun, coming at a time the state government had also set up a panel that reviewed the administration of former governor Olagunsoye Oyinlola, a development that has since generated bad blood in the state’s polity.

Much as the situation appears fluid pending the determination of the NJC at its meeting billed to hold sometime next month, the choice of Oyewole, observers believe, still remains tough because of its political undertone unlike what obtains in Kwara and Adamawa States.