Appointing Customary Court of Appeal President

By Emmanuel Aguma

As arguments rage over the legality or otherwise of appointing the President of the Rivers State Customary Court of Appeal, Justice Peter Agumagu,   the Acting Chief Judge of Rivers State by Governor Rotimi Amechi, a Port-Harcourt based legal practitioner and   former chairman   Nigerian Bar Association (NBA), Port-Harcourt branch and Secretary, Nigerian Bar Association (NBA) Rule of Law Action Group, Mr. Emmanuel Chinwenwo Aguma, examines the exercise in the light of  extant laws of the country. And described it as a greek gift, wrong, illegal and unconstitutional.

I start with an unequivocal statement. The appointment of the President of the Rivers State Customary Court of Appeal as the acting Chief Judge of   the   State is legally   and   unconstitutional. I rely purely on the provisions of the Constitution of the Federal Republic of Nigeria 1999 as amended (the 1999 Constitution) and case law to so contend.

Section 271(4) of the 1999 Constitution makes it absolutely clear that when the office of the Chief Judge is for any reason vacant as in this case where the incumbent Chief Judge of Rivers State has recently retired and the appointment of the substantive new Chief Judge has not been confirmed in consonance with the provisions of section 271(1) of the said constitution, the Governor shall appoint the most senior Judge of the High Court as the acting Chief Judge.

The Governor of Rivers State, his Attorney General and his Chief of Staff have all contended that the appointment of the President of the Rivers State Customary Court of Appeal is in order because he is the most senior Judge of the Rivers State Judiciary having been appointed into the High Court Bench in “1990 or thereabout”   according to   the Attorney General   before his “secondment” to the Customary Court of Appeal in 2008.

Brilliant argument, but totally misleading and unconvincing. Had the Governor and his Chief of Staff been the only ones making this contention I would not have   bothered at all. I am however intellectually pained and distressed that such a contention can also be made by the   Attorney General of Rivers State who is the official leader of the Bar and is, in my opinion, a distinguished legal practitioner and a leader at the Port Harcourt Bar.

First, the words of section 271(4) of the 1999 Constitution are restrictive, clear and unequivocal. The appointment of the acting Chief Judge must be made, from the rank of Judges of the High Court. The President of the Customary Court of Appeal is not a Judge of the High Court but of the Customary Court of Appeal, which he heads as President.

He therefore is not the most senior Judge of the High Court even if he is the most senior Judge in the Rivers State Judiciary   by date of appointment   which said Rivers State Judiciary comprises of the High Court of Rivers State, Rivers State Customary Court of Appeal, Magistrates’ Courts of Rivers State and Rivers State Customary Court.

Secondly, section 281(4) of the 1999 Constitution makes a similar provision with regard to the appointment of the acting President of the Customary Court of Appeal restricting it to the most senior Judge of the Customary Court of Appeal, which no Judge of the High Court is.

Nothing in the constitutional provisions for the establishment and appointment of Judges of both the High Court and the Customary Court of Appeal including the Chief Judge of the High Court and the President of the Customary Court of Appeal make provision for the much-bandied word, to wit, “secondment”.

Sections 271(1) and (2) and 281(1) and (2) of the 1999 Constitution are very clear on this issue of appointments with regards to the High Court and the Customary Court of Appeal respectively.

The fallacy in the secondment theory is further illustrated by the qualification required of Judges of the High Court vis-à-vis their brothers in the Customary Court of Appeal as specifically provided for by sections 271(3) and 281(3) of the 1999 Constitution respectively. Section 271(3) of the 1999 Constitution makes it mandatory that you must be a legal practitioner to be a Judge of the High Court.

However, by the provisions of section 281(3) (b) of the 1999 Constitution, once the National Judicial Council is satisfied that a person has considerable knowledge of and experience in the practice of customary law, he or she can be appointed a Judge of the Customary Court of Appeal regardless of the fact that he or she is not a legal practitioner.

Reasoned contention

It is therefore my reasoned contention that the High Court of a State and Customary Court of Appeal of a State are distinct and separate Courts even though they are part and parcel of the Judiciary of a State. Their judges are different. Beyond being constituent parts of the Judiciary of a State headed by the Chief Judge of the State, nothing connects both courts. We are supported in this contention by the Federal Court of Appeal’s decision in Ado v Dije (1984) 5 NCLR 260.

In that case, one of the questions for determination is whether a Judge of the Sharia Court of Appeal that sat as a Judge of the High Court in the High Court’s appellate jurisdiction from a decision of an Area Court is a Judge of the High Court. The Federal Court of Appeal held at page 267 and I quote: The 1979 Constitution of Nigeria prescribes in sections 234 and 235 for the establishment of the High Court of a State and the mode of appointment of its judges and of their qualification. Similarly, Sections 240 and 241 of the same Constitution provides for the establishment and Jurisdiction of a Sharia Court of Appeal of a State and the qualification for appointment of its members.