Justice Maurice Eneji has been appointed as Cross River Acting Chief Judge following the House of Assembly’s refusal to confirm the National Judicial Committee (NJC)’s recommended nominee, Justice Akon Ikpeme. The Nation examines the controversy in the light of the NJC’s precedent in Abia State.
The Cross River State Government’s case is simple.
Last December, it recommended Justice Akon Ikpeme and Justice Maurice Eneji to the National Judicial Council (NJC) for appointment as Chief Judge of the state.
Justice Ikpeme is the most senior judge of the state’s Judiciary and was appointed in acting capacity on December 3, 2019 following the retirement of former Chief Judge, Justice Michael Edem.
Justice Eneji was next in line.
The government, as was its right, stated its preference for Ikpeme J and Eneji J as the reserve candidate based, amongst others, on seniority.
The NJC, in December 2019, interviewed both candidates, found them suitable for the position but recommended Ikpeme J for appointment as the Chief Judge, being the most senior judge and not having any negative report.
On January 8, 2020, the government forwarded Ikpeme’s name to the Assembly for confirmation.
On February 28, 2020 some members of the state House of Assembly stayed away from the day’s deliberations, one of which was the confirmation of Justice Ikpeme.
The lawmakers shifted the Chief Judge’s confirmation till March 2, 2020, the day Justice Ikpeme’s acting tenure was to elapse.
On March 2, the lawmakers declined to confirm Justice Ikpeme.
Following Ikpeme’s rejection, Governor Ben Ayade swore in Justice Eneji as the new acting Chief Judge on March 3, 2020, without a second recourse to the National Judicial Council (NJC).
Justice Eneji accepts appointment
Accepting his new office, Justice Eneji said: “My appointment came to me as a beautiful surprise. I am coming to the office with a mind to listen. The sacred duty of a judge is to listen before adjudicating. I will listen at all times to ensure that justice is served at all times.”
Why Ikpeme was rejected
Justice Ikpeme was born in Cross River State of parents with Akwa Ibom State ancestry. But she has lived and worked in Cross River State all her life and is married to a Cross River State native. She started her career with the Cross-River State Ministry of Justice and rose to the position of Director of Public Prosecution before being appointed a judge in the state. Her father was a permanent secretary in Cross River and retired there.
Akwa Ibom was created out of Cross River on September 23, 1987, by the military regime of Ibrahim Babangida.
She was recommended to the governor for appointment as Chief Judge after the NJC found her worthy in both character and knowledge. She was screened by the Department of State Security and found not to be a security risk.
Justice Ikpeme’s rejection was not without intrigues.
During deliberation, two opposing reports were presented for consideration by the Committee on Judiciary that handled the matter.
But the House, after debate, rejected both reports. And following a voice vote by a committee of the whole house, Justice Ikpeme’s confirmation failed.
Allegations of ethnic bias
One of the reports was which endorsed Justice Ikepeme’s confirmation was said to be endorsed by Chairman of the Judiciary Committee, Efa Esua, representing Calabar Municipal State Constituency.
His deputy, Godwin Akwaji representing Obudu State Constituency, was alleged to have endorsed the second report signed by six members of the seven-member Judiciary Committee that urged members not to confirm her.
Justice Ikpeme is from Esua’s southern Federal Constituency while Justice Eneji is from Akwaji and Governor Ayade’s northern Federal Constituency of the state.
Akwaji’s report which was read on the floor of the House by Chris Njar Ogar, representing Etung State Constituency, stated why Justice Ikpeme did not deserve confirmation.
It allegedly claimed that her confirmation would pose a security threat to Cross River State, that being an indigene of Akwa Ibom, there may be a likelihood of bias in the discharge of her duties and that the best interest of the state would not be served if she became the substantive chief judge.
But Justice Ikpeme found support on the issue of indigeneship, in a member representing Odukpani State Constituency, Bassey Asuquo.
Discrimination on basis of origin not permitted
Although the governor of a state has been vested with the power to appoint the Chief Judge, he shares the power with the NJC in recommending suitable persons and the state house of assembly in confirming the appointment.
Part of the process for appointing a Chief Judge is spelt out in Section 271(1) of the Constitution.
It states: “The appointment of a person to the office of a 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.”
The House of Assembly thus has a major role to play in appointing a Chief Judge, alongside the governor and the National Judicial Council.
But can lawmakers refuse to confirm a Chief Judge appointee on the basis of ethnicity?
Section 42 (1) of the Constitution states: “A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:
(a) Be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religious or political opinions are not made subject; or.”
It thus appears that the lawmakers had no power to reject Justice Ikpeme’s nomination, under the indigeneship criteria.
But the Cross River State Government believes its appointment of Justice Eneji was in order and that the lawmakers acted lawfully.
The state’s Commissioner for Information, Asu Okang, was credited with defending the lawmakers’ in a statement.
“Are you aware that Justice Akon (Ikpeme) was asked as part of the screening exercise, ‘In case there was an issue between Cross River and Akwa Ibom State, Your Lordship, who would you stand for?’ You know her response? She said, ‘I would stand down on the case and reassign it to someone else.’ A chief judge of the state?” the commissioner said.
NBA, SANs disagree with government
But the Nigerian Bar Association (NBA) and senior lawyers Mba Ukweni SAN and Ebun-Olu Adegboruwa SAN disagreed with the lawmakers and government’s position.
The Nigerian Bar Association (NBA) threw its weight behind Mrs Ikpeme and called on the National Judiciary Commission (NJC) not to recognise Mr Eneji.
“This absurdity and naked injustice and prejudice must not be allowed to stand,” NBA President, Paul Usoro, said in a statement.
For Ukweni Justice Ikpeme is fully qualified as a Cross River State native by birth and marriage.
Ukweni said: “Hon Justice Akon Ikpeme was born here, married a Cross Riverian and bore her children here. Her father was the permanent secretary in Cross River and retired here.
“When Hon Justice Akon Ikpeme finished her School, she was employed by the Cross River State Ministry of Justice where she rose to a position of a Director of Public Prosecution and from there she was appointed a Judge of Cross River State Judiciary.
“Our rules allow women to choose where to work, she can choose to work in Akwa Ibom State, or choose to work at where her husband come from, Cross River or work at where her mother was from. These are the things put in place so the Justices may not be over discriminated.”
Adegboruwa observed that the Cross River State Government may have violated Sections 153 and 159 of the 1999 Constitution by appointing Eneji without the NJC’s recommendation.
He said: “I believe that under and by virtue of Section 159 and 153 of the 1999 Constitution the National Judicial Council has the ultimate power in the recommendation for appointment of judicial officers for a state.
“In particular in this Cross River State matter, once a recommendation has been made to the governor by the NJC for appointment into the office of Chief Judge, the governor, if he does not accept that recommendation, has to go back to the NJC and cannot appoint a Chief Judge on his own without a recommendation from the NJC.”
The silk said he found the Cross River case, “totally acceptable that a person who has served the state for so many years is now being rejected on the grounds of ethnicity and tribalism.
“When Akwa Ibom was created from Cross River, people in the ministries were given the option either to remain in the old Calabar region or move to Akwa Ibom, and she opted to remain.
“So, if you cannot appoint her as Chief Judge because of her state of origin, what then will happen to all the judgments she has delivered, all the cases she has sat upon for these many years?”
Like Abia, like Cross River?
On March 15, 2018, the NJC recommended to Governor Okezie Ikpeazu of Abia State the compulsory retirement of the state’s suspended Chief Judge, Justice Theresa Uzokwe and Justice Obisike Oji, who was picked in her place.
This formed part of the decisions taken at the NJC’s 85th meeting held on March 14.
As it relates to Justice Oji, the NJC noted that it had earlier queried him “for allowing himself to be sworn-in as acting Chief Judge, and thereby colluding in, and aiding an unconstitutional process.
“His (Justice Oji’s) reply was unsatisfactory and the Council recommended his compulsory retirement.
Adegboruwa observed that Ayade may, by the confirmation, be replaying the Abia State scenario in Cross River.
He warned that Justice Eneji may be leaving himself open to the same fate as Justice Oji.
Adegboruwa said: “I think generally it is for us to caution the Governor of Cross River State, in regard to seeming lawlessness in bypassing due process of law.
“This appointment will be totally unconstitutional and we have a precedent that we can follow in the case of Abia State, when a judge who presented himself to be sworn in without the NJC’s recommendation was sacked. And it is exactly the same scenario in Cross River.
“I believe at the next meeting of the NJC, this matter should be tabled and the same fate that happened to the judge in Abia State should happen to the person who has presented himself to be sworn in without clearance from the National Judicial Council.”
What should Ayade do?
According to the Silk, Ayade has no choice but to return to the NJC.
“The NJC particularly recommended the appointment of a Chief Judge, the NJC was specific. If the governor has a reason not to agree with that recommendation and wants to pick someone else, he has to go return to the NJC,” Adegboruwa said.