Judiciary

• Pages: 1377-1399

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JUDICIARY.

APPOINTMENT OF JUDGES.

Body vested with power of appointment of and exercise of disciplinary control over Chief

Judges and other judicial officers of States. (1) “The National Judicial Council is one of

Executive Bodies established for good governance of the country under section 153 of the

Constitution which states: “153(1) There shall be established for the federation the following

bodies, namely – (a) xxxxxxxxxxxxxxxxxxxxx (i) National Judicial Council (2) The

composition and powers of each body established by sub-section (1) of this section are

contained in Part 1 of the Third Schedule to this Constitution.” What is relevant for

determination of this issue is to fish out and examine the powers of the National Judicial

Council in paragraph 21 of Part 1 of the Third Schedule to the Constitution which reads: “21.

The National Judicial Council shall have power to – (a) recommend to the President from

among the list of persons submitted to it by- (i) the Federal Judicial Service Commission,

persons for appointment to the offices of the Chief Justice of Nigeria …… (ii)

******************** (b) recommend to the President the removal from office of the

judicial officers specified in sub-paragraph (a) of this paragraph and to exercise disciplinary

control over such officers; (c) recommend to the Governors from among the list of persons

submitted to it by the State Judicial Service Commissions persons for appointments to the

offices of the Chief Judges of the States and Judges of the High Courts of States, the Grand

Kadis and Kadis of the Sharia Court of Appeal of the States and the Presidents and Judges of

the Customary Courts of Appeal of the States. (d) recommend to the Governors the removal

from office of the judicial officers specified in sub-paragraph (c) of this paragraph, and to

exercise disciplinary control over such officers.” It is quite plain from the provisionsof

paragraph 21 sub-paragraphs (c) and (d) of Part 1 of the Third Schedule to the Constitution of

the Federal Republic of Nigeria 1999, that the National Judicial Council is the body that had

been assigned the duty and responsibility of recommending to the Governors of the States of

the Federation suitable persons for appointments to the offices of Chief Judges of the States

and other judicial officers in the States. In addition to its role in the appointment of Chief Judges

of the States and other judicial officers, the same National Judicial Council is also empowered

under sub-paragraph (d) of paragraph 21 to recommend to the Governors of the States the

removal from office of the Chief Judges of the States and other judicial officers of the States

and also to exercise disciplinary control over such Chief Judges of the States and other judicial

officers of the States. Therefore, from these very clear provisions of the Constitution which are

very far from being ambiguous, the Governors of the States and the Houses of Assembly of the

State cannot exercise disciplinary control touching the removal of Chief Judges of States or

other officers in the States. Going back to section 271(1) of the 1999 Constitution, it is also

glaringly clear that the National Judicial Council has been given a role to play in the

appointment of Chief Judges of the States where the section states: “271(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 the confirmation of the

appointment by the House of Assembly of the State. It can be seen here again, although the

Governor of a State has been vested with the power to appoint the Chief Judge of his own State,

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that power is not absolute as the Governor has to share the power with the National Judicial

Council in recommending suitable persons and the State House of Assembly in confirming the

appointment. It is in the spirit of the Constitution in ensuring checks and balances between the

three arms of government that the role of the Governor in appointing and exercising

disciplinary control over the Chief Judge of his State is subjected to the participation of the

National Judicial Council and the House of Assemblyof the State in the exercise to ensure

transparency and observance of the rule of law.The cross-appellant has made heavy weather

on the interpretation and application of section 292(1)(a)(ii) of the 1999 Constitution which is

said to have conferred unfettered powers on the Governor of Kwara State and the House of

Assembly of Kwara State to remove the Chief Judge of Kwara State from office on allegation

of misconduct. The relevant section of the Constitution states: “292(1) A judicial officer shall

not be removed from office or appointment before his age of retirement except in the following

circumstances – (a) in case of – (i.) Chief Justice of Nigeria xxxx (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 the 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.” The provisions of section 292(1)(a)(ii)

of the Constitution above also deals with the power of the Governor to remove the Chief Judge

of a State in conjunction with the House of Assembly of the State. Although it is true as argued

by the learned senior counsel to the cross-appellant that the above section 292(1) made no

provision for the National Judicial Council to play any role in the removal of a Chief Judge of

a State, the fact that the council has a vital role to play in the appointment, removal and

exercising control over a Chief Judge of a State under section 271(1) of the Constitution and

also under paragraph 21 of Part 1 of the Third Schedule to the same Constitution is not at all

in doubt.” – Per Mohammed, J.S.C., in Elelu-Habeeb v. A-G., Fed. Suit No. S.C. 281/2010;

(2012) 13 N.W.L.R. (Pt. 1318) 423 at 491 - 494. (2) “The entire provisions of the 1999

Constitution in section 153(1)(i),(2), 271(1),292(1)(a)(ii) and paragraph 21 of Part 1 of the

Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the

appointments removal and exercise ofdisciplinary control over judicial officers, must be read,

interpreted and applied together in resolving the issue of whether or not the Governor of a State

and the House of Assembly of a state can remove a Chief Judge of a State in Nigeria without

any input of the National Judicial Council. This is because the combined effect of these

provisions of the Constitution has revealed very clear intention of the framers of the

Constitution to give the National Judicial Council a vital role to play in the appointment and

removal of judicial officers by the Governors and Houses of Assembly of the State. In the

result, I entirely agree with the two Courts below that having regard to these relevant provisions

of the 1999 Constitution the Governor of Kwara State and the House of Assembly of the State

cannot remove the Chief Judge of Kwara State from office without the participation of the

National Judicial Council in the exercise.” – Per Mohammed, J.S.C., in Elelu-Habeeb v. A-G.,

Fed. Suit No. S.C. 281/2010; (2012) 13 N.W.L.R. (Pt. 1318) 423 at 495.(3) “On the

interpretation and application of the provisions of section 153(1)(i); 292(1)(a)(ii) and paragraph

21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria1999,

the Governor of Kwara State and the House of Assembly of Kwara State cannot remove the