By Alex Enumah in Abuja
Justice Inyang Ekwo of the Abuja Division of the Federal High Court on Wednesday, gave the go-ahead to a legal practitioner, Oladimeji Ekengba, to commence the suit seeking to compel President Muhammadu Buhari to appoint the 33 lawyers nominated by the National Judicial Council (NJC) for appointment as judges of the High Court of the Federal Capital Territory (FCT).
Justice Ekwo gave the go-ahead to the applicant to file a writ of summons for an order of mandamus compelling the President and Commander-in-Chief of the Armed Forces to perform his constitutional duties as contained in Section 256(2) of the constitution by appointing the 33 persons recommended to him by the NJC for appointment as judges of the FCT High Court in a ruling on an exparte application.
Delivering ruling in the motion marked: FHC/ABJ/CS/828/2020, the judge noted that the leave granted the applicant is to enable him commence the process of initiating the writ of summons for an order of mandamus against the president and that it did not amount to granting the order of mandamus itself.
Other respondents besides President Buhari include the Attorney-General of the Federation (AGF) and Minister of Justice, the Clerk of the Senate, the Chief Justice of Nigeria (CJN) and the NJC.
“Consequently, the applicant is granted leave of this court to apply for a writ of madamus compelling the president and Commander in Chief of the Nigerian Armed Forces to perform his official duty as contained in section 256 (2) of the 1999 constitution (as amended), by appointing the 33 persons recommended to him for appointment into the office of judges of the High Court of the Federal Capital Territory by the National Judicial Council,” the judge held.
Justice Ekwo had, in September, faulted the decision of Buhari for forwarding names of only 11 out of the 33 lawyers nominated for appointment as judges of the FCT High Court.
Buhari had in July forwarded to the Senate for screening and confirmation names of only 11 lawyers out of the 33 recommended to him for appointment by the NJC.
The judges whom have since been sworn in include Abubakar Musa, Edward Okpe, B. Abubakar, M. Francis, Jude Nwabueze, Josephine Enobi, Christopher Opeyemi, Mohammed Idris, Hassan Aliyu, Fashola Adebowale and Hamza Muazu.
The applicant, in his averment, stated that the president was wrong not to have appointed the 33 persons recommended to him by the NJC.
According to Ekengba, “After painstaking, thorough screening/interview in total compliance with the extant laws and rules for appointment of judges, Buhari ought to have appointed the 33 persons in accordance with Section 256 (2) of the constitution without recourse to the National Assembly or tamper with the list.”
Ekengba insisted that overriding pubic interest in appointing the 33 persons as recommended as judges far outweighs any other consideration upon which the president may base his action.
He further averred that the president does not have the discretion to refuse to carry out his constitutional duties, stressing that the “shall” in the extant law made it compulsory for the president to act upon the recommendation of the NJC.
Ekengba said that by the president’s conduct, he has refused to comply with the applicant’s request “and that the only remedy to me (applicant) is judicial review for order of declaration and madamus”.
He further averred that the refusal of the president to comply with his request is unconditional, illegal and ultra virus which entitles him to seek judicial review.
He also stated that the second respondent (AGF), as the Chief Law Officer of the federation, is under obligation to advise the president to comply with the request but he has failed to do.
