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Sunday, 18 March 2018

Constitutional Crisis Looms As Federal High Court CJ ‘s Tenure Expires

Constitutional Crisis Looms As Federal High Court CJ ‘s Tenure Expires

Justice Adamu Kafarati

A number of senior lawyers in the country have urged President Muhammadu Buhari to appoint a substantive chief judge for the Federal High Court to prevent a constitutional crisis arising from the court staying without a judicial administrator or head.

They made this call following the expiry today of the tenure of Justice Abdul Kafarati as the acting chief judge of the Federal High Court.

Recall that the appointment of a chief judge on acting capacity can only last for three months according to the provisions of the constitution.

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Justice Kafarati was appointed on September 16, 2017 to act as the chief judge for three months. His acting capacity was subsequently renewed for another three months and expires today.

Recalls that the Senate had last week urged President Muhammadu Buhari to forward the nomination of Justice Abdu Kafarati to the upper legislative chamber for approval as substantive chief judge of the Federal High Court to avoid a constitutional crisis.

The Senate President, Bukola Saraki, had noted that the Federal High Court could not be left to stay without a chief judge.

“The time to do the needful by the executive is fast running out. Once the Presidency forwards his name to this chamber, his confirmation or approval will be made in dispatch to avoid a crisis.”

The Senate resolution followed the motion moved by the chairman of the Committee on Judiciary, Human Rights and Legal Matters, Senator David Umaru (Niger East), to draw the attention of his colleagues to looming crisis in the Federal High Court.

Some senior lawyers in Nigeria have added their voices to this imminent constitutional impasse.

The lawyers averred that the immediate implication is that the judgements, judicial decisions, affidavit or legal instruments from the Federal High Court would be riddled with contentions or disputes for the period the court would stay without a head, or lawful judicial administrator.

They insisted that if the CJ’s appointment becomes voided by want of time, anything he does, superintend upon or sign is a nullity in the eyes of the law, and litigants can rely on that to ask for the instruments or judgement to be quashed at higher courts.

The lawyers, who spoke with our reporter yesterday, include former president of the Nigeria Bar Association (NBA), Olisa Agbakogba (SAN), President Muhammadu Buhari’s former lawyer, Mike Ahamba (SAN), Emeka Ngige (SAN), Niyi Akintola (SAN), Alasa Ismail and Abubakar H. Sani

They said that Section 250 (4) & (5) was explicit with regards to the appointment of the chief judge of the Federal High Court.

Following the failure of the Presidency to nominate a successor to the former chief judge of the Federal High Court, Justice Ibrahim Auta who was due to retire on Saturday September 16, 2017, the chief justice of Nigeria (CJN), Justice Walter Onnoghen, on the same day, swore in Justice Abdul Kafarati as the acting chief judge of the Federal High Court.

Justice Kafarati was then the next most senior justice of that court of first instance in the country.

In his remark after administering the oath, the CJN had said, “The Federal High Court is a very critical court in the jurisprudence of Nigeria. It is very strategic,” adding that the swearing-in was done on a weekend to avoid a vacuum in the leadership of the high court.

“That is why we are here today. Even if it had not been done before, it has been done now,” Justice Onnoghen quipped.

Some of the lawyers held that the appointment of the chief judge on acting capacity ought not to lapse beyond three months, just as the state House of Assembly speaker is sworn in as acting governor of state for a maximum of three months.

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They drew the attention of President Buhari to Section 250 (5) which directed that the appointment of the Federal High Court chief judge on acting capacity shall cease to have effect after the expiration of three months.

Some of the lawyers said the option left for the president was to appoint the next most senior justice of the Federal High Court after Justice Kafarati to take over as the chief judge from today.

This is just as others held that Justice Kafarati could be appointed for the third time on acting capacity on the grounds that Justice Onnoghen stayed on acting capacity as CJN for more than four months before he was sworn-in as substantive CJN.

Recalls that Justice Onnoghen was appointed by President Muhammadu Buhari on November 10, 2016 as the acting CJN, but it was not until February 7, 2017 that his name was sent to the Senate for confirmation. He was consequently sworn in as the substantive CJN by the then Acting President Yemi Osinbajo (SAN) on March 7, 2017.

Olisa Agbakoba said: “President Buhari should simply appoint Kafarati substantive chief judge, and to act immediately, otherwise NJC may be unable to extend acting capacity and this will leave the Federal High Court without a head or it will mean Kafarati is out of consideration and his junior will be appointed to act. This will make things very awkward for all concerned, in particular Kafarati’’

On his part, Chief Mike Ahamba noted that leaving the court witout a CJ was akin to having a state without a governor.

He said: “It is wrong to appoint the chief judge on acting capacity beyond three months. It has to be discouraged for CJs to be appointed to act even for a day.

A lot of people behave as if there is no constitution in the country. The law or the constitution is crystal clear: for a Federal High Court to stay without a CJ is like a state in Nigeria staying without a governor.

“The speaker, for instance, can only act for three months in the absence of substantive state governor, and that is also applicable to a CJ on acting capacity. The CJ of the Federal High Court can only act for a maximum of three months. We just have to respect the constitution in the interest of peace and harmony in the country’’, Ahamba said.

Another senior lawyer, Chief Emeka Ngige noted that the culture of appointing chief executives of the courts for a period longer than the constitution stipulated was not a new one.

“It has happened before with the appointment of the current CJN, Justice Onnoghen, who acted for more than four months. What NJC has to do is to renew Justice Kafarati’s appointment pending when the president will forward his name to the Senate,’’ he said.

Niyi Akintola, another senior advocate, concurred, saying that Kafarati “acting appointment should be renewed to avoid lacuna.’’

For Barrister Alasa Ismail, the situation, if allowed to linger, would cause a whole lot of confusion in justice administration.

Ismail said, “The immediate implication is that the judgements, judicial decisions, affidavit or legal instruments from the Federal High Court will be riddled with contentions or disputes for the period this court may stay without a head, or lawful judicial administrator’’.

On his part, Abubakar H. Sani spoke on the fate of the acting chief judge, Kafarati: “It means that even though he remains a judge of the Federal High Court, he is no longer the chief judge automatically and by effusion of time,” he said, adding that the constitution was explicit on the procedure for the appointment of the chief judge.

Culled From leadership

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