Judges’ appointment: You can’t abdicate your duties to Senate, court tells Buhari

The Federal High Court, Abuja, on Wednesday, told President Muhammadu Buhari that his responsibility in the appointment of 11 judges recommended by the National Judicial Council (NJC) cannot be abdicated to the Senate.

Justice Inyang Ekwo, in a judgment, also held that President Buhari acted in contravention of the provision of Section 256(2) of the Constitution when he forwarded the recommended names sent to him by the NJC to the Senate for screening.

Supreme reports that President Buhari had, on July 7, forwarded the names of 11 persons recommended for appointment as Judges of the FCT High Court to the Senate for confirmation.

The appointees are: Abubakar Useni Musa, Edward Okpe, B. Abubakar, M. Francis, Jude Nwabueze, Josephine Enobi, Christopher Opeyemi, Mohammed Idris, Hassan Maryam Aliyu, Fashola Akeem Adebowale and Hamza Muazu.

Oladimeji Ekengba, an Abuja-based legal practitioner had, on July 15, approached the court in an exparte motion marked: FHC/ABJ/CS/733/2020.

Ekengba had filed the suit over what he called alleged breach of Section 256 (2) of the Nigerian Constitution, 1999, in the appointment of judges of the FCT High Court.

Other respondents in the suit are the Attorney-General of the Federation and Minister of Justice, the Clerk of the Senate, the Chief Justice of Nigeria (CJN) and the National Judicial Council (NJC).

In the suit, the lawyer urged the court to make an order of interim injunction restraining the respondents from screening, confirming and/or swearing in the names of the persons as judges of the FCT High Court pending the hearing and determination of the substantive suit.

He was contending that President Buhari breached the constitution when he forwarded the names of 11 persons recommended for appointment as Judges to the Senate for confirmation.

In the judgment, Ekwo held that President Buhari acted in contravention of the provision of Section 256(2) of the Constitution.

The judge said the only instance where the president could forward NJC’s recommendation to the Senate, in respect of a High Court judge’s appointment, was when it related to the appointment of a head of court, like the chief judge.

He, however, held that the fact that President Buhari contravened the provision of Section 256(2) of the Constitution did not affect that swearing-in of the judges.

“The issue is straightforward. It is whether the first defendant (the President of the Federal Republic of Nigeria) acted in compliance with the provision of Section 256(2) of the 1999 Constitution (as amended) to have sent the names of the 11 persons recommended for appointment as judges of the High Court of the Federal Capital Territory, Abuja to the Senate for confirmation.

“Looking at the provision of Section 256(2) of the 1999 Constitution (as amended), I find that there is no power or authority, express or implied, given to the first defendant (the President of the Federal Republic of Nigeria) to send names of persons recommended to him for appointment as judges to the Senate for screening.

“All that the first defendant needed to do was to send the names of the appointees to the seventh defendant (the NJC).

“The requirement for confirmation by the Senate would only have been necessary and constitutional if the seventh defendant recommended a person to the first defendant for appointment as the chief judge of the High Court of the Federal Capital Territory, Abuja as provided for in Section 256(1) of the 1999 Constitution (as amended).

“To state it clearly, the act of the first defendant, the President of the Federal Republic of Nigeria), sending the names of the 11 persons appointed by him to the Senate for confirmation was done in contravention of the provision of Section 256(2) of the 1999 Constitution (as amended),” he ruled.

Justice Ekwo proceeded to grant two of the plaintiff’s reliefs, which include a declaration that, by the provision of Section 256(2) of the Constitution, the President “cannot abdicate his duties and responsibilities to the Senate for appointment of persons as judges of the High Court of the Federal Capital Territory.”

The judge equally declared that the names of the individuals nominated by the NJC for appointment as judges of the High Court of the FCT cannot be subjected to the screening and confirmation and that the forwarding of the names to the Senate was contrary to and in breach of Section 256(2) of the Constitution.

“As can be seen, this judgement affects only the act of forwarding the names of the appointees to the Senate, which was done in contravention of the provision of Section 256(2) of the 1999 Constitution (as amended). It does not affect the swearing in of the appointees,” the judge held.