Tuesday, 1 December 2020

Appointment of a State Chief Judge -- When May NJC Validly Reject A List Sent to it by a State JSC [PART 1]

 




(a legal opinion by udems)

 

(1)  Background:

 

The Constitution of the Federal Republic of Nigeria (CFRN), 1999[i]  provides that 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 confirmation of the appointment by the House of Assembly of the State. Meanwhile, a person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.[ii]  If the office of Chief Judge of a State is vacant or if the person holding the office is for any person unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the Governor of the State shall appoint the most senior Judge of the High Court to perform those functions.[iii]

 

Now, following the vacancy that occurred in the office of the substantive Chief Judge of Gombe State, and in exercise of its powers,[iv] the Gombe State Judicial Service Commission (JSC),[v]  had submitted to the National Judicial Council (NJC)[vi] for the latter`s recommendation, the names of two serving judges of the High Court of Gombe State.[vii] Angered by the omission of her name from the list, Hon Justice Beatrice L. Illiya, said to be, the most senior judge in the State High Court at present, sent a petition to the NJC, raising the following contentions:[viii]

(a)   that the exclusion of her name from the list amounted to a violation of an earlier directive of the NJC that the name of the most senior judge be included in the list;

(b)  that the exclusion of her name from the list was a violation of a longstanding tradition and convention in the legal profession which usually saw the most senior judge in the state high court appointed the State Chief Judge, and

(c)   that the exclusion of her name from the list was sheer injustice.

 

Meanwhile, on 27 November 2020, the National Judicial Council reportedly “turned down Gombe State Chief Judge’s nominee list over the omission of the most senior judge, Justice Beatrice L. Iliya.”[ix] The rejection of the list has been met with mixed reactions from stakeholders, and the entire legal community in Nigeria. One question that appears to have not been resolved is as to what extent (if any) the NJC is legally justified in rejecting the list from the Gombe State Judicial Service Commission (JSC). Put differently, Is the NJC entitled to reject a list sent to it by the State JSC under such circumstances, and what reasons could justify such rejection? It is respectfully submitted right away that the power to accept a list and to make recommendation therefrom, carries with it the power to reject a list or refuse to make any such recommendation. In other words, it is the view of this writer that NJC reserves the right to reject a list, sent to it by the State JSC, since the NJC is not merely a rubberstamp in the process of appointment of judicial officers in Nigeria.

 

The present commentary is devoted to a consideration of (a) whether the NJC is under an obligation to offer reasons for its rejection of any such list, (b) whether such reasons offered must be legally cognizable/justifiable, and (c) whether the validity of NJC`s rejection of such list may be impaired by the legality or otherwise of the reasons so offered. Specifically, this paper would look into whether the reason offered by the NJC in the case of Gombe State (namely, omission of the name of the most senior judge in the state high court) is legally justifiable and, if so/not, whether such has not affected the validity of the rejection.

 

(2)  Authorities Involved in the Process of Appointment of State High Court Judges in Nigeria

 

The present writer has identified the following authorities as having some role to play in the process leading to appointment of the Chief Judge of a State or of a State High Court Judge:[x]

(a)   The Governor of the State;[xi]

(b)  The National Judicial Council;[xii]

(c)   The State Judicial Service Commission;[xiii]

(d)  Serving and Retired Judges;[xiv]

(e)   The State Security Service: SSS (Department of State Security: DSS);[xv]

(f)    The Nigerian Bar Association;[xvi]

(g)  The State House of Assembly;[xvii]

(h)  Serving and Retired Chief Justices of Nigeria (CJN`s) and Presidents of the Court of Appeal (PCA`s)[xviii]

 

(3) Extent of Involvement of the National Judicial Council (NJC)


The extent of involvement of the NJC in the process of appointment of judges in Nigeria could be seen by taking a look at relevant aspects of extant laws on the subject.


a)      Giving Directive on Number of Judges that can be appointed: The present writer has earlier explained that[xix]  Whenever it is proposed to appoint judicial officers for a State in Nigeria, the Chairman of the State Judicial Service Commission (JSC) shall give notice to the Governor of the State of the intention to appoint specific number of judicial officers and ask for the Governor’s approval to proceed. And forward a copy of the Notice and the Governor`s response, to the NJC.   Upon receipt of the Notice form the State JSC, the Secretary of the NJC shall advise the CJN/Chairman of the NJC, on the number of judges than can be appointed, having regard to the budgetary provision of the NJC for the year The CJN/Chairman of the NJC shall consider the NJC Secretary’s advice and by a notice in writing (addressed to the Chairman of the State JSC) direct (and this direction/decision is final) that the exercise (a) may proceed or (b) should not proceed or (c) may proceed with reduction in the number of judges proposed to be appointed.” Two major conclusions could be taken away from the above:

     (i) The NJC has and exercises tremendous control over the number of judges to be appointed by a State on each occasion. This is reasonable because it is the NJC`s responsibility to collect, control, and disburse all monies, capital and recurrent, for the judiciary,[xx]


(    (ii).The NJC`s decision/direction in this respect is final,


    (iii). This very provision is not relevant to appointment of the Chief Judge since only one person can be appointed as the Chief of a State, although there is nothing that stops the NJC from recommending more than one person, from the list sent to it by the State JSC.[xxi] Where more than one person is so recommended, the Governor reserves the right to appoint anyone from among the recommended list of names.

 

b)Making Recommendations to the Governor:  Item 21 (c) of Part I of the 3rd Schedule[xxii] provides that “The National Judicial Council shall have power to 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 the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and the Presidents and Judges of the Customary Courts of Appeal of the States”.[xxiii] Also, the Constitution makes it clear that the appointment of a Chief Judge must made on the recommendation of the NJC.[xxiv] In Elelu-Habeeb v. AG Federation,[xxv] the Supreme Court stated:

 

"Section 153(1)(i) of the 1999 Constitution established the … National Judicial Council, and by Paragraph 21 of Part 1 of the 3rd Schedule to the said Constitution clothed it with the following powers:- ‘Recommend to the Governors the removal from office of judicial officers specified in sub-paragraph (c) of this Paragraph, and to exercise disciplinary control over such officers.’ Who are the judicial officers mentioned in sub-paragraph (c) of Paragraph 21 to whom sub-paragraph (d) applies? These are the Chief Judges of the States and Judges of the High Courts of the States, the Grand Kadis and Kadis of the Sharia Courts of Appeal of the States and Presidents and Judges of the Customary Courts of Appeal of the States."

 

c)   Rendering Advice to the Governor on any other Matter Referred to it by The Governor: The Constitution provides that the NJC shall have power to “advise the President and Governors on any matter pertaining to the Judiciary as may be referred to the Council by the President of the Governors”[xxvi].Matters arising from this include:


     i. The NJC may advise the Governor of a State on any matter pertaining to the Judiciary. It is respectfully submitted that the areas in respect of which such advice may be sought and rendered include financing, appointment of members of the judiciary, administration of justice generally, observation of some conventions within the legal profession, the Bar and the Bench, etc.


     ii. Such advice may not be rendered unless and until the advice is expressly sought by the Governor of the affected State. To this end, it is respectfully submitted that  the NJC would be acting ultra vires if it purports to render any advice or to give any directive to a State Governor or to the State Judicial Service Commission on who specifically, is to be appointed a Judge or Chief Judge or on any practice or convention regulating the appointment of a judge or the Chief Judge of the State High Court, unless request for such direction or advice has been specifically previously sought either by the Governor or by the State JSC.

 

 

 (4) Grounds Upon Which NJC May Make or Decline to Make a Recommendation

 

There is no doubt, as already pointed out, that the NJC may withhold its recommendation. The big question is as to when such may be said to have validly happened, for what reasons, and towards what ends. Or, one may ask, is the NJC entitled to withhold recommendation for just any reasons, however legally valid or unsupportable the reason(s) may be? Is the NJC like the Attorney-General whose power to enter the Nolle Prosequi is said to be unquestionable, absolute.[xxvii] In an earlier work, the present writer had tried to capture the nature of the power of the Attorney-General under the Constitution. His words:


“Upholding the powers of the Attorney-General (AG) in this respect, the Supreme Court of Nigeria held in the case of State v Ilori [1983] 1 SCNLR 94, that the powers conferred on the Attorney-General under the Constitution are unquestionable, absolute. In other words, with respect to criminal prosecution, the Attorney-General is a law unto himself, and his decision in this respect could not be questioned in any court of law. Hon Justice Kayode Eso, JSC, who delivered the lead judgment in that case, set out the following statement, which remains the law till date:


The pre-eminent and incontestable position of the Attorney-General, under the common law, as the chief law officer of the State, either generally as a legal adviser or specially in all court proceedings to which the State is a party, has long been recognized by the courts. In regard to these powers, and subject only to ultimate control by public opinion and that of Parliament or the Legislature, the Attorney-General has, at common law, been a master unto himself, law unto himself and under no control whatsoever, judicial or otherwise, vis-a-vis his powers of instituting or discontinuing criminal proceedings. These powers of the Attorney-General are not confined to cases where the State is a party. In the exercise of his powers to discontinue a criminal case or to enter a nolle prosequi, he can extend this to cases instituted by any other person or authority. This is a power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities. In Ezomo v Attorney-General of Bendel State (1986) 4 NWLR (PT 36) 448, the Supreme Court described the Attorney-General as a law unto himself. And while rationalizing the awesome powers conferred on the Attorney-General in criminal prosecution, the Supreme Court in the case of Attorney-General of Kaduna State v Hassan 26 (1985) 2 NWLR 483 115 2, explained that the makers of the Constitution were wise to have made it so…”


Still on the unquestionable nature of the powers of the AG, section 160(3) of the Constitution of the Federal Republic of Nigeria, 1979 (now, section 174(3) of 1999) provides that “In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.” However, in State v Ilori,[xxviii] the Supreme Court held as follows:

 

“The…Constitution, in using the permissive expression "shall have regard to" in sub-section (3) of s.191 thereof, does not intend to delimit and has not delimited the powers which the Attorney-General had either at common law or under the Constitutions preceding the 1979 Constitution, in so far as the insti­tuting or discontinuing of criminal proceedings is concerned. Again, the words "shall have regard to," are certainly not equivocal. They are plain and unambiguous. They are words which are merely declaratory of what the Attorney-General takes into consideration in the exercise of his pow­ers. {See the dictum of Earl Cairns L.C. in Julius v. Lord Bishop of Oxford (180) 5 A.C. (H.L.) 214; at p.222 where the Lord Chancellor interpreted similar expression as "directory, permissory and enabling"). Such words are merely potential and never in themselves significant of any obligation (see Julius v. Lord Bishop of Oxford ibid p.235 as per Lord Selborne).”

 

The question is, has the NJC assumed the status of the Attorney-General whose power to institute or discontinue public prosecutions is now unquestionable, absolute? The present writer answers in the negative. The implication of this answer is, with due respect, that in exercise of its power, the NJC must ensure it complies strictly with extant relevant laws. Accordingly, while it is obvious that the use of “shall have power to” in Item 21(a) of Part of the 3rd Schedule to the Constitution implies that, borrowing from the words of the Supreme Court in State v Ilori, the words are "directory, permissory and enabling"). Such words are merely potential and never in themselves significant of any obligation.”

 

However, there appear to be other crucial differences between the discretion afforded the Attorney-General and the discretion afforded the NJC in respect of appointment of judicial officers. While the Attorney-General is a law unto himself, the NJC is not. Further, following from the fact that the AG is a law unto himself is the fact that the AG need not give any reasons for his actions under section 174 and 211 of the Constitution; the AG owes no one any explanation, for example, when he enters a Nolle Prosequi or when he decides to take over, institute a criminal proceeding or to take over pending criminal proceedings. On the other hand, it is respectfully submitted, the NJC is not a law unto itself and consequently is obliged, not only to give a reason, but to give a legally cognizable reason for its actions.

 

The Revised Guidelines and Procedural Rules, 2014[xxix] provides that the before making its recommendations, the NJC should taking certain factors into considerations:

(a)   the number of Judicial Officers to be recommended for appointment;

(b)  the workload of the Court;

(c)   performance of the current serving Judicial Officers of the Court; (whether the proposed appointment is justified.

 

Additionally, Rule 6[xxx] dealing with recommendation by the NJC upon receipt of the list from the State JSC, offers the following guidelines on other steps and factors to be considered by the NJC in confirming that the person or persons to be recommended are suitable: It provides:

 

“(1) Every candidate/Judge/Justice/Chief Judge/Legal Practitioner, who has been shortlisted shall undergo interview to be conducted by the National Judicial Council to ascertain his or her suitability for the judicial office sought. (2) The mode of interview shall be determined by the Council. (3) The result of the interview shall form a major part of the decision on the candidate's suitability for the judicial office for which he or she has been interviewed. (4) A candidate who is unsuccessful at the interview shall not be recommended for appointment by the Council.”

 

The Rules provide that[xxxi] a candidate who is rejected (by the NJC) on account of having been involved in any of the following,[xxxii] shall not be re-presented to the Council (NJC) or at least another two years or any such period as the Council may direct: (i) canvassing or lobbying for the appointment directly or indirectly in any form and/or through any person or persons; (ii) bad behaviour, whether in or out of Court; (iii) activity suggesting impecuniosities and/or display of lifestyle that indicates that the candidate has been living above his/her means; (iv) influence peddling; (v) any act of dishonesty or corruption or corrupt practice; (vi) who is rendering dishonest or questionable legal opinion or advice or suppression of truth and suggestion of falsehood in any legal matter in dealing with colleagues, clients, or the Courts of Law; (vii) deliberate improper or wrong completion of NJC Form 'A'[xxxiii] with intent to deceive or mislead; (viii) submission of false credentials and or deceitful or fraudulent curriculum vitae; or  (ix) is shown to have nor very limited exposure to practice at the Bar and conduct of cases in the Superior Courts of Record


 

The powers of the NJC in respect of giving legally supportable reasons for its decision (to make or to decline recommendation) may accordingly be likened to the powers of a political party to substitute a candidate as explained in the Case of Amaechi v INEC[xxxiv] thus:

 

“I mentioned earlier that PDP did not provide cogent and verifiable reason for the attempt to substitute Amaechi with Omehia. Not having done so, Amaechi who had acquired a vested right by his victory at the primaries and the submission of his name to INEC was never removed as PDP’s candidate. If the law prescribes a method by which an act could be validly done, and such method is not followed, it means that that act could not be accomplished. What PDP did was merely a purported attempt to effect a change of candidates. But as it did not comply with the only method laid down by law to effect the change, the consequence in law is that the said change was never affected. In the eyes of the law, Amaechi’s name earlier sent to INEC was never removed or withdrawn.”[xxxv]

 

(5) Reason must be founded in law

 

In view of the above, it is respectfully submitted that to be “cogent and verifiable”, a reason given by the NJC for declining recommendation must be supported by law; must be founded in law. In other words, the NJC should be able to make reference to a section of an existing statute, or to an aspect of case law or other subsidiary legislation, as the basis for its refusal to make a recommendation or for its rejection of a list sent to it by the State JSC. It is further submitted that the NJC is not entitled to reject a list based on any grounds that is not legally verifiable. And where the NJC refers to any convention, statute or case law, such must not have been repealed, overruled, set aside and such must not be one that is inconsistent with any provisions of the Constitution of the Federal Republic of Nigeria, 1999. The Constitution itself has made it clear that[xxxvi] this Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the Federal Republic of Nigeria.” Besides and more importantly, the Constitution has warned that the Federal Republic of Nigeria shall not be governed except in accordance with the provisions of this Constitution,[xxxvii] and that if any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.[xxxviii]

 

(6) The National Judicial Council Shall Not Be Under the Control of Anyone?

 

It appears from the provisions of the Constitution of the Federal Republic of Nigeria, 1999, that the NJC, in exercise of its powers, is not answerable, or subject, to any authority or to any form of control by anyone or authority in Nigeria. Thus, the NJC is not under the supervision or guidance of anyone while legitimately discharging its powers under the constitution or under any law, provided that the law is not inconsistent with the constitution. Says the Constitution:

 

“In exercising its power to make appointments or to exercise disciplinary control over persons, the Code of Conduct Bureau, the National Judicial Council, the Federal Civil Service Commission, the Federal Judicial Service Commission, the Revenue Mobilisation and Fiscal Commission, the Federal Character Commission, and the Independent National Electoral Commission shall not be subject to the direction or control of any other authority or person.”[xxxix]

 

The following are the questions that, in the opinion of this author, necessarily arise from the provisions of section 158(1):

 

        i.            This provision does not mean/imply that the NJC is a law unto itself. Not at all, as this writer has earlier explained. In the process of discharging its responsibilities under the constitution or any law, the NJC may, indeed ought to, take advice from some quarters. An example is Item 6(a)(i)(ii) of Part 2 of the 3rd Schedule, CONSTITUTION of the Federal Republic of Nigeria, 1999, which provides that "The state Judicial Service Commission (JSC) shall have power to:  advise the NJC on suitable persons for nomination to the office of the Chief Judge of the State, Judges of the High Court of the State".

 

 

     ii.            For this provision to apply, the it must be shown that the NJC is acting within its legitimately assigned powers under the constitution. Accordingly, if the NJC acts ultra vires, some degree of control may be exercised, say by a court of law, to call it to order. Accordingly, it is respectfully submitted that where the NJC disregards a provision of the constitution, acts in contravention of the constitution or offers a reason that is not supported by law, for its refusal to make a recommendation, the court of law is entitled to wade in. Section 6 (6) (b) of the Constitution provides as follows:

 

“(6) The judicial powers vested in accordance with the foregoing provisions of this Section - (b) Shall extend to all matters between persons, or between government or authority and to any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person."[xl]

 

   iii.            Based on the provisions of section 1(2) of the constitution which insists that the Federal Republic of Nigeria shall not be governed except in accordance with the provisions of this Constitution, NJC as an agency of the federal government has a primary duty, in exercise of its powers, to ensure strict compliance with the provisions of the constitution. And where any other law or rule of practice or tradition is inconsistent with the Constitution, the NJC has an obligation to prefer the provisions of the Constitution, no matter how dear it holds such other law or tradition.

 

   iv.            The NJC is bound by the principles of rule of law. In this regard, the present writer has observed:

 

“As pointed out by Oputa, JSC,[xli] here in Nigeria even, under a Military Government, the law is no respecter of person, principalities, government or powers…” In Governor of Ekiti State v. Fakiyesi,[xlii] Nigeria’s Court of Appeal observed, and rightly, in my view, that “If we are to keep our democracy, there must be only one commandment – thou shall not ration justice.” As I shall explain shortly, I understand “justice” to mean justice according to the nature, purport, and application of the rule of law, as enshrined in the Constitution, and in line with the intentions of the framers of the Constitution, no matter whose ox is gored.”[xliii]

 

Commenting on the supremacy of the rule of law and the duty incumbent on all persons and authorities to subject their conducts and actions to the predominance of the rule of law, the same writer has stated thus:

 

“…every person is subject to the ordinary law.[xliv] Rule of law is the predominance that is absolute of an ordinary law over every citizen and institution regardless of status, position, power…the people … should be ruled by the law and obey it.[xlv] Rule of law requires that all persons and organizations including governments and government agencies and officials …are subject, and accountable to, ordinary laws of the land. On its part, the Supreme Court of Nigeria has repeatedly emphasized that “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law. Nigeria, being one of the countries in the world which profess loudly to follow the rule of law, there is no room for the rule of self-help by force to operate.”[xlvi]… Under a rule of law regime, in a constitutional democracy, justice must be done according to the dictates of rule of law and the constitution of the land, and not vice versa. Any violation of rule of law or the supremacy of the constitution is injustice or a desecration of justice. The case of AP v Owodunni[xlvii] further illustrates the principle that justice or injustice must be measured by the lens of what is consistent with law as laid down in a society.”

 

(7) Is the NJC An Appointing authority, a Recommending Authority or Both at the same time?

 

In Opene v. NJC,[xlviii] The supreme Court stated that "The Courts of law have a duty to interpret the law and not to substitute or amend provisions which they consider improper. The Court is not entitled to read into specific provisions in the Constitution words which do not reflect the intention of the draftsmen. Therefore, where the provisions in the Constitution are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid to interpret it...." The provisions of Item 21(a) of Part 1 of the 3rd Schedule to the Constitution are clear-- so also, are the Revised Guidelines and Procedural Rules; the role of the NJC is limited to giving directives on the number of judged to be appointed by a state; and making recommendations to the Governor, which recommendation must be made from the list sent to it by the State JSC.  The NJC is not the appointing authority, although the Governor may not appoint save on the recommendation of the NJC. It is this writer`s view that the present controversy or face-off in Gombe State would have been avoided if all persons and authorities had kept strictly within their spere of authority.  

 

(8) Legality of the Reason offered by the NJC for rejecting the List sent to it by the Gombe State JSC

 

TO BE CONTINUED!

End Notes



[i] Section 271(1)

[ii] Ibid, s.271(3)

[iii] Ibid, s. 271(4)

[iv] under Item 6(a) of part II of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria (CFRN), 1999, and Rule 5(1) of the Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers, made on December 03, 2014

[v] created pursuant to section 197(1)(c) of the CFRN, 1999

[vi] created pursuant to section 153(1)(i) of the CFRN, 1999

[vii] Hon. Justice Muazu A. Pindiga and Hon. Justice Joseph Ahmed Awak

[viii] Hon. Justice Beatrice Iliya Petitions NJC, Says Exclusion of Her Name from List of Nominees for Gombe CJ Is an Injustice” (published by TheNigeriaLawyer. In the petition, she

[x] See Udemezue, Sylvester, 'A Summary Of The Procedure For Appointment Of A Judge Or Chief Judge Of A State High Court In Nigeria' (LawAndJustice 27 November 2020) < https://www.lawandjustice.ng/2020/11/a-summary-of-procedure-for-appointment.html> accessed 29 November 2020

[xi] See CFRN, s. 271(1), and (4).

[xii]The Constitution of the Federal Republic of Nigeria, 1999Item 21 (c) of Part I of the 3rd Schedule.

[xiii] The Constitution of the Federal Republic of Nigeria (CFRN), 1999, Item 6(a) of part II of the 3rd Schedule; the Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers, made on December 03, 2014, Rule 5(1)

[xiv] See the Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers, made on December 03, 2014, Rule 3(4)(i).

[xv] Op Cit., Rule 4(2)(e).

[xvi] Op Cit., Rule 3(4)(iii).

[xvii]  CFRN, s271(1)

[xviii] Revised National Judicial Council Guidelines & Procedural Rules for the Appointment of Judicial Officers, made on December 03, 2014, Rule 3(4)(ii)

[xix] Udemezue, Op Cit. (n. vii). See also the Revised National Judicial Council Guidelines & Procedural Rules, Rule 2(1),(2),(4)&((5).

[xx] The CFRN, 1999, Item 21 (e) of Part I of the 3rd Schedule.

[xxi] Op Cit., Item 21 (c) of Part I of the 3rd Schedule.

[xxii] CFRN, 1999

[xxiii] See also the Revised National Judicial Council Guidelines & Procedural Rules, Rule 5(1) and(5).

[xxiv] S.271(1)

[xxv] (2012) LPELR-15515(SC), per Onnoghen ,J.S.C ( Pp. 83-84, paras. C-A )

[xxvi] CFRN, 1999, Op Cit., Item 21 (f) of Part I of the 3rd Schedule.

[xxvii] Nolle Prosequi is a power vested in the Attorney-General of the State or of the Federation to discontinue a criminal case that is already in court. “This power vested in the Attorney-General by the common law and it is not subject to review by any court of law. It is, no doubt, a great ministerial prerogative coupled with grave responsibilities. In Ezomo v Attorney-General of Bendel State, 25 the Supreme Court described the Attorney-General as a law unto himself. And while rationalizing the awesome powers conferred on the Attorney-General in criminal prosecution, the Supreme Court in the case of Attorney-General of Kaduna State v Hassan, explained that the makers of the Constitution were wise to have made it so, because the AG was both the legal and political officer who was answerable only politically for acts done in the Ministry.” See: Udemezue, Sylvester, 'disengaging Lay Police Officers from Criminal Prosecution For dA More Efficient Criminal Justice Administration In Nigeria' (African Journal of Constitutional and Administrative Law 2019) accessed 29 November 2020. See also the CFRN, ss.174 and 211.

[xxviii] S.C. 42/1982)[1983] NGSC 37 (25 February 1983). You can access the judgment at < https://nigerialii.org/ng/judgment/supreme-court/1983/37< accessed 29 November 2020

[xxix] Rule 5(5)

[xxx] Made on December 03, 2014, Rule 5(5) and 6(1)

[xxxi] Rule 6(5),

[xxxii] As set out in Rule 4(4)(ii))

[xxxiii] See the NJC Revised Rules, 2014, Rule 4(2)(a)

[xxxiv] (2008) LPELR-446(SC)

[xxxv] Per Oguntade, J.S.C (pp. 71-72, Paras. E-A)

[xxxvi] S.1(1)

[xxxvii] CFRN, Op Cit., s.1(2)

[xxxviii] Ibid, s. 1(3).

[xxxix] S. 158(1).

[xl] See OPENE V. NJC & ORS (2011) LPELR-4795(CA)

[xli] In Military Governor of Lagos State v. Ojukwu (1986) LPELR-3186(SC)

[xlii] (2009) LPELR-8353

[xliii] Udemezue, Sylvester, 'A Legal Homily on Why the Office of the Chief Judge of a State Is Not an Exclusive Inheritance of the Most Senior Judge In the State' (Newswirelawandevents, 24 November 2020) accessed 29 November 2020

[xliv] Garner, B, In: Black’s Law Dictionary (9th ed., Thomson Reuters, 2009) 1148

[xlv] Geoffrey de Q. Walker, The rule of law: foundation of constitutional democracy, (1st Ed., 1988

[xlvi] see for example, Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802 & 1799

[xlvii] (1991) LPELR-213(SC)

[xlviii] (2011) LPELR-4795(CA), per Nwodo, J.C.A (pp. 52-53, paras. D-A)

 

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