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APPOINTMENT OF CJN.

CAN THE PRESIDENT REFUSE TO APPOINT W. S. N. ONNOGHEN, J.S.C. AS CJN?

It is a hallmark of our civilian democratic dispensation that the three arms of Government (the Executive, the Legislature and the Judiciary) are presumed to be independent, though, co-existing for a healthy functioning of the polity.

In an ideal situation, neither of the three arms is subordinate to the other; for as Montesquieu emphasised in De I’ Esprit des lois (the spirit of the laws 1748) Book xi Chapter 3: “it is necessary from the very nature of things that Power should be a check to Power”, because “when the legislature and executive powers are united in the same person, or in the same body of Magistrates, there can be no liberty; because apprehensions may arise, lest the same Monarch or Senate should enact tyrannical laws, to execute them in a tyrannical manner.” 

Having said that, it is common knowledge that with his attainment of the statutory age of 70 years on 10 November 2016, the former Chief Justice of Nigeria (CJN), Mahmud Mohammed, gracefully retired and exited from the revered office of Chief Justice of Nigeria.

In what appeared to be a worrisome departure from a long held tradition, the President of the Federal Republic of Nigeria, President Muhammadu Buhari, appointed Honourable Justice Walter S.N. Onnoghen as the Acting CJN on 10 November 2016.  The President did not, as envisaged by Section 231(1) of the Constitution of the Federal Republic of Nigeria, as amended (the Constitution) forward His Lordship’s name to the Senate of the Federal Republic of Nigeria for confirmation as the CJN.  As a result, Hon Justice Onnoghen did not assume the functions of the office of CJN in a substantive capacity.  Instead, His Lordship’s appointment took effect in an Acting capacity, under Section 231(4) of the Constitution.

This, in and of itself, broke with over 100 years of tradition.  Since the appointment of Sir Edwin Speed as the first Chief Justice of Nigeria in 1914, none of the nineteen incumbents of that office (prior to Hon. Justice Onnoghen) discharged their functions in an Acting capacity.  

Indeed, since this unprecedented appointment, our Apex Court has been under increasing scrutiny from a different “Court” – the Court of Public opinion.

A number of questions have been asked.  Several theories have been propounded.  Rumors have made rounds.  Tension and worries have gripped concerned stakeholders.  The legal profession is once more on the spot.  But the nagging issue is: whether the much touted independence of the judiciary as enshrined in our Constitution remains relevant.  I am not referring to the financial independence/autonomy of the Judiciary here.  That is a topic for another time.  Suffice it to recall that successive governments, nay, the Executive arm, have, unfortunately, seen the Judiciary as a junior partner to whom “handouts” will be doled at the pleasure, whims, and caprices of those claiming to have the mandate of the people to govern and execute State policies.

On the independence of the Judiciary vis-à-vis the appointment to the office of the Chief Justice of Nigeria, permit me to refer to the extant Constitutional provisions.  The relevant provisions of Section 231(1), (4) and (5) of the Constitution, clearly provide:

231(1) The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation by the Senate.

  1. (Underlining for emphasis.)

It is an accepted canon of interpretation that in dealing with Constitutional provisions, particularly in our developing Constitutional democracy, the proper approach is to strive to sustain the objective of these Constitutional provisions.  Thus, in the celebrated case of NAFIU RABIU v. STATE (1980) N.S.C.C. (Vol. 12) 291 at 301, one of the finest judicial minds in our living history, Sir Udo Udoma, J.S.C., put the position in these words: “My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism…  I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.” (Underlining for emphasis.)

It follows, therefore, that in construing the meaning of the Constitutional provisions in Section 231 of the Constitution, care must be exercised in not omitting or otherwise truncating the objective of those provisions.

It is equally an acceptable canon of statutory interpretation that the Court, where expedient, should bear in mind the history behind such provision.  As Oputa, J.S.C. stated in EZE v. FEDERAL REPUBLIC OF NIGERIA (1987) 2 SC 237 at 259: “although the court is not at liberty to construe a statute by the motives which influenced its enactment, yet when the reason for the enactment is known, it is the duty of the court to read the Statute or Section of it in such a way as to fairly and accurately carry out that object of the Decree, Act or statute…”

Without any grammatical hair splitting, a clear reading of the provisions of Section 231(1) of the 1999 Constitution unquestionably makes the case that the appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council (NJC).  The appointment, however, is subject to confirmation by the Senate.

The pertinent question then is, whether the exercise of the power to appoint reserved to the President is in the nature of a duty imposed by the Constitution, or, does the President have a discretion to exercise in the matter?  In other words, can the President in a Constitutional democracy such as ours refuse to make the appointment or even refuse to be bound by the recommendation made by the NJC or reject such a recommendation?

In examining these posers, it is pertinent to refer to the Constitutional role of the NJC particularly as it relates to the appointment of a person to the office of the Chief Justice of Nigeria.

The Third Schedule, Part 1 of the 1999 Constitution established various Federal Executive bodies including the NJC.  By paragraph 21(a)(i) thereof, the NJC is entrusted with the Constitutional power to: recommend to the President from among the list of persons submitted to it by:

$1(1)  The Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria….”

When the above provisions of Section 231(1) and paragraph 21(a) of the Third Schedule to the Constitution are read together, it is clear to see that in the appointment of a person to the office of Chief Justice of Nigeria, the following Statutory bodies are relevant and play interwoven roles and duties, namely:

$1a.      The Federal Judicial Service Commission (FJSC), which is enjoined to send a list to the NJC;

$1b.      The NJC, which from the list sent to it by the FJSC “shall have power to recommend to the President” the person to be so appointed;

$1c.      The President of the Federal Republic of Nigeria, who shall make the appointment on the recommendation of the NJC; and

$1d.      The ultimate approval by the Senate, being that the appointment to be made is subject to confirmation by the Senate.

In the light of the above, the subsidiary question is whether by the use of the word “shall” in Section 231(1) of the Constitution the exercise of the power of appointment by the President of the Federal Republic of Nigeria admits of any discretion.  Is the President entitled to refuse to make an appointment after the NJC has made a recommendation from the list submitted to it (the NJC) by the FJSC?

It is important to underscore that by virtue of Section 158(1) of the Constitution, the NJC, like other Federal Executive Bodies therein mentioned, shall not be subject to the direction or control of any other authority or person in exercising its power to make appointments.

It is conceded that the ordinary meaning of the verb “recommend” (the noun form is “recommendation”) is to “write or speak in favour of (someone, something) to another as deserving employment”.  

However, from the holistic context of Section 231(1) of the 1999 Constitution read together with paragraph 21(a)(i) of the Third Schedule Part 1 of the Constitution, and in further recognition of the autonomy invested in the NJC by Section 158 of the Constitution, the real purpose is that upon the NJC submitting the name of a person as qualified for appointment to the office of Chief Justice of Nigeria, the President of the Federal Republic of Nigeria shall exercise the power and fulfill the constitutional duty incumbent on him by making the appointment.  The appointment when made shall only be subject to the confirmation by the Senate.

It is further submitted that implicit in the Constitutional requirements is that when the President makes an appointment, same is not final as it is still subject to confirmation by the Senate.  But an appointment must, in the first place, be made.  This is the beauty of the Constitutional limitation of checks and balances guaranteed in a democracy where the three arms of Government, despite their independence, coexist in the greater interest of the polity.

It is our respectful view that in keeping with the purposive approach to the construction of Constitutional provisions, the Legislature by Section 231(1) of the Constitution would not have intended the absurd situation where the Executive arm (the President of the Federal Republic of Nigeria) will be entitled at his whims and caprices to stifle the NJC and block the expected free flow of the Constitutional process for the appointment to the office of Chief Justice of Nigeria.

Furthermore, by adopting a purposive/liberal approach in the interpretation of Section 231(1) of the Constitution, the true purpose of the Constitutional provision will be rightly met.  The Legislature in drafting the provisions of Section 231(1) in the manner it did and having the pivotal role of the NJC in mind, could not have intended that the Executive arm of Government (headed by the President of the Federal Republic of Nigeria) will pose a stumbling block in the appointment process by refusing to appoint a person who has been recommended by the NJC as envisaged by law.

What will be the harm to the State if the subsection is given a liberal meaning by which the requirement thereof is interpreted from the angle that the power of appointment reserved to the President imposes a Constitutional duty, which the President must comply with?  Is such a liberal approach offensive to law?  No. The correct view of the law, as eruditely espoused by Idigbe, JSC, is that: “where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should always lean where the justice of the case so demands to the broader interpretation, unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its object and purpose.”

Next: is there anything in the context of Section 231(1) or the rest of the Constitution which enjoins a restrictive approach in construing the mandatory requirement to make the appointment on the recommendation of the NJC?

A cursory look at the related provision of Section 231(3) throws a greater light on the subject.  By Section 231(3) “a person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for not less than fifteen years.”

It is lame to argue that His Lordship, Hon. Justice W.S.N. Onnoghen eminently satisfies the Constitutional requirements of Section 231(3) reproduced above.  It is also common knowledge that the NJC, in line with its Constitutional mandate, has since recommended him to the President for appointment as the Chief Justice of Nigeria. 

To the extent that the President has refused or refuses and or neglects to exercise the power of appointment incumbent on him, he is acting unconstitutionally and ought in the interest of the rule of law to take urgent steps to remedy the situation.  We are constrained to recall the admonition in ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2007) ALL FWLR (pt. 345) 211 at 268 that: “it is the bounden duty of the court of interpret the provisions of the Constitution and other enacted statutes for the proper conduct of affairs so that our democratic governance would be predicated and sustained on the rule of law and not law of the jungle.”

It is needless emphasising that the liberal/purposive approach advocated hereinabove accords with the principle that a Constitutional power cannot be used by way of a condition to attain unconstitutional result.  It will clearly lead to an unconstitutional result if the President refuses to exercise his power of appointment, and thereby, truncate the recommendation made by the NJC from the list submitted by the Federal Judicial Service Commission within the context of paragraph 21(a)(i) of the Third Schedule of the Constitution.

To take the words “on the recommendation” in Section 231(1) of the 1999 Constitution out of context and seek to apply a rigid literal meaning thereto will not only defeat the reasonable meaning and expectation of other provisions of the Constitution; such a stultifying narrow approach will amount to disregarding the public expectation of reasonable adherence to the hallowed principles of separation of powers.

Perhaps, it is apposite to make the point that from a dispassionate and correct interpretation of the provision of Section 231(1) read together with Section 231(4), there is no Constitutional power to appoint a person as Acting Chief Justice.  Where the NJC has exercised its Constitutional role and made the prescribed recommendation, the President cannot abdicate his Constitutional duty under the guise of appointing the person so recommended as Acting Chief Justice of Nigeria.  The law requires him to appoint the person recommended by the NJC as the substantive Chief Justice of Nigeria. 

Can the President refuse to abide by the Constitution of Nigeria?  Of course, he cannot and Our Constitutional development abhors such an unjustified dereliction of duty.  Without any equivocation, it is submitted that the only qualified person whom the President can legitimately appoint is such a person whom the NJC must have, in exercise of its Constitutional powers, recommended for appointment.  No other person can be constitutionally appointed.

Lastly, and this is only for the greater interest of the much clamoured need for efficient and due administration of justice, it is on record that His Lordship, Hon. Justice W.S.N. Onnoghen has since he took up the position of “Acting Chief Justice” under Section 231(4) of the 1999 Constitution shown remarkable determination to restore sanity and excellence to the legal profession. 

His Lordship has within the very short period rolled out impressive reforms captured in the Nigerian Tribune of 16 January 2017, which, if fully implemented, will restore the dimming glory of the legal profession and set a realistic road map for an efficient dispensation of justice.  These reforms include initiatives for more practical approach to clearing the backlog of cases in courts, redefinition of the judicial duties of heads of courts, performance evaluation of judicial officers including those of the inner bench, deployment of IT etc. These laudable reform projects must not only be sustained but must be allowed to germinate fully.

   Patrick I. N. Ikwueto, SAN, FCIArb (UK)

Ikwueto®, at  http://Ikwueto.net