NJC, Governors Are Not Obligated To Recommend Or Appoint The Most Senior Judge As Chief Judge

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.”