An Appraisal of the Constitutional Power or Otherwise of a Governor to Suspend or Remove the State Chief Judge – Akanmu Jamiu

INTRODUCTION

The removal of judicial officers from office over misconduct by the executive is not new, and there are myriad precedents at both the federal and state levels. Sometimes around January 2019, the formal President Muhammadu Buhari suspended the then Chief Justice of Nigeria, Walter Nkanu Samuel Onnoghen, over an allegation of false declaration of his assets, an action in contravention with the provisions of the constitution, and he was immediately replaced by Justice Tanko Muhammad as the acting chief justice.

This action, which seems invidious to some parts of the people, generated quite a lot of constitutional crisis, while the nub of the issue surrounding the controversy was whether the suspension was in fact executed in accordance with due process.

This suspension, however, does not indicate an end to further removals, whose their validity and legality are subject to debate. The same recurred at the state level.

In Kwara State, around 2009, the then Kwara State Chief Judge, Justice Raliat Elelu Habeeb, was suspended by Governor Bukola Saraki during his administration. Abia State Chief Judge in 2018, Justice Theresa Uzokwe was also suspended over judicial misconduct, an allegation that was later affirmed and was subsequently sacked by the National Judicial Council. The recent faction between the judiciary and the executive in Osun State over the purported suspension of the State Chief Judge, Justice Oyebola Ojo, for alleged gross misconduct is another.

This particular issue has sparked different public reactions and preconceptions on the legality of her suspension by the governor.

The essence of this article is to unravel and examine the constitutional validity or otherwise of the power of the governor to appoint and suspend the Chief Judge of the State.

The doctrine of checks and balances

The three branches of the government, in the process of discharging their functions, have been subjected to different allegations of misconduct, embezzlement, and excessive abuse of authority, which, if go unchecked, is capable of bringing about the total breakdown of the rule of law.

Hence on the basis of the doctrine of checks and balances, which arises as an outgrowth of the classical theory of separation of powers, the powers of the three branches of the government are not absolute and are subject to review and checks.

The purpose of the doctrine is to ensure that governmental powers will not be used in an abusive manner, checks and balances are the constitutional controls that separate branches of government to ensure that they have limiting power over each other so that no branch will become supreme or encroach on and exercise the power of another, and each arm serves as a check on the misuse of power by the other, hence, in all of our constitutions, the judiciary, executive and legislature are clearly separated and entrusted to a separate organ or body, for instance,

Section 4 vests the legislative powers of the Federation in the National Assembly, which consists of a senate and a House of Representatives.

Section 5 vests executive powers in the presidents and the governors.

Section 6 vests judicial powers in the courts established by the constitution.

The Constitutional Power of a Governor to Appoint a Chief Judge of a State

The governor of a state wields and enjoys a great deal of significant executive powers, such as the power of appointment and removal, prerogative of mercy, making of regulations, and immunity from legal proceedings among others.

It is necessary at this stage to ask whether the powers of the governor also extend to the power to appoint, suspend, or remove a Chief Judge of a State.

The virtue of the provisions of Sections 270(2)(a) and 271(1) of the 1999 Constitution establish the office of a State Chief Judge, whose appointment 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 the Assembly of the State.

Section 271 states that;
(1) 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 wording of the above section attests to the fact that a governor lacks executive power to directly or single-handedly appoint anyone of his choice as the State Chief Judge unless the National Judicial Council first recommends such and the House subsequently consents and confirms the same.

The National Judicial Council is an integral part of the judicial system in Nigeria according to Section 158 and paragraph 21 of the third schedule of the 1999 constitution, which grant provisions for the powers and functions of the National Judicial Council such as,

Recommending the appointment of judicial officers

Exercising disciplinary action over judicial officers; and

Recommending the removal of judicial officers among others.

Hence, an appointment of a Chief Judge of a State by a governor without the above process remains invalid, unconstitutional, and cannot stand.

Now that the governor’s power to appoint the Chief Justice of the state in conformity with the provisions of the constitution has been established, it needs to be further stretched here to determine whether such power should be construed to include the power to remove or suspend the Chief Judge of the state.

And since it is not new that the executive branch is usually the body that appoints and inaugurates natural persons to office, therefore, it is not far-fetched to say that where any appointee conducts himself in a manner that the appointor finds unacceptable, the latter may not hesitate in his power to fire him. However, there are instances where an appointor cannot directly remove a default officer without first recourse to another body.

Removal of judicial officers from office

The removal of judicial officers from office is one that this illustration resonates with, in the sense that the executive, either the President or the Governor of a State, is bereft of the power to suspend or remove any judicial officers without first report to or notify some other bodies.

In this case, it is crucial to consider Section 292 of the Constitution, which clearly expresses the conditions for removing judicial officers by the governor.

The provisions of Section 292 provide, thus

(1). A judicial officer shall not be removed from his office or appointment before his age of retirement, except in the following circumstances:

(a) in the case of

(i) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, etc., by the President acting on an address supported by a two-thirds majority of the Senate.

(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal, or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-thirds majority of the House of Assembly of the State, praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;

(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

The above provisions are self-explanatory and clearly unambiguous, and must be given their literal meaning.

Condition that must be satisfied in the process of removing a judicial officer by the Governor

Therefore, the first condition that must be satisfied in the process of removing a judicial officer is that the Governor, acting on the recommendation of the Judicial Council, that the judicial officer be so removed for his inability to discharge his functions arising either from infirmity of mind or body or for misconduct or contravention of the code of conduct.

However, where there is no such recommendation of the National Judicial Council, the governor shall be acting on an address supported by a two-thirds majority of the House of Assembly of the State, praying that he be so removed for his inability to discharge the functions of his office or appointment arising either from infirmity of mind or of body or for misconduct or contravention of the Code of Conduct.

Hence, any removal or suspension of the judicial officers with disregard to the above mandatory process will be void and be pronounced unconstitutional notwithstanding the provisions of Section 11 of the Interpretation Act which confers upon an appointor the power to appoint as well as the power to remove or suspend at the same time as this Act is of no any effect and totally irrelevant to this instant case having regard to the supremacy of the constitution over any other statute or act and being the groundnorm by the virtue of Section 1(3) of the 1999 constitution as amended with which other enactments derive their validity from, and as such that any inconsistency with it shall be declared void.

The Court in Oke V. Atoloye affirms the irrelevance of the Section 11 of the interpretation act in interpreting the power of suspension over judicial officers since the constitution contains express provisions on the disciplinary power over judicial officers.

The proper approach of the court to interpretation of statutory provisions, as held by the Court of Appeal in the case of VISITOR IMO STATE UNIVERSITY V. OKONKWO&ORS 2014, is that it is trite law that provisions of a constitution or statute must be construed literally, giving the words in such a constitution or statute their ordinary grammatical meanings, unless that would lead to some absurdity.

There are considerable numbers of precedents in support of the compulsory constitutional requirements the governor must satisfy before proceeding to remove or suspend the Chief Judge of the State.

The law is settled in the case of Elelu-Habeeb & Anor v. A.G. Federation & Anor (2012) (12 NWLR). The Supreme Court held that the Chief Judge of a State cannot be removed under any guise without recourse to the National Judicial Council.

Also in Nganjiwa v. FRN (2017) LPALR-43391, the court reiterates that any misconduct attached to the office and functions of judicial officers must first be reported to and determined by the National Judicial Council.

In other words, an unlawful and unconstitutional removal that is either politically motivated, malicious, or for other ludicrous and unreasonable excuses that is not within the ambit of the laid down procedures enshrined in the constitution is a blatant violation and abuse of the rule of law, a judge in Nigeria shall not be removed without the involvement of the National Judicial Council, the Senate, or the State House of Assembly, as the case may be, regardless of the level of the allegations of misconduct.

Conclusion

In conclusion, the significance of the provisions of Section 201 and 292 in the administration of government is to offer transparency in the process of the operation of law and to ensure strict adherence to the rule of law and the means of upholding the rule of natural justice by holding the defaulters accountable and facing the consequences of their act of insubordination in accordance with the provisions of the constitution.

The judiciary being the last hope of the masses in the pursuit of justice must be fair and free from every misconduct and impropriety and must be ready to portrays and upholds the course of law to ensure proper dispensation of justice, a judicial officer occupies a very unique and sacred position in the society, occupying this position means that a high level of integrity, honesty and accountability is expected from judicial officers.

References

1. The provisions of the Nigerian 1999 Constitution
2. Interpretation Act
3. Administrative Law (NOUN)
4. a. Visitor Imo State University, v. Okonkwo & Ors.
   b. Oke v. Atoloye
   c. Elelu-Habeeb & Anor V. A.G. Federation & Anor (2012) 12NWLR
   d. Nganjiwa V. FRN (2017), LPALR-43391.

About Author

Akanmu Jamiu is a legal researcher and a 400-level undergraduate law student at Osun State University.