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Rivers loses Attorney General

Emmanuel Chinwenwo Aguma.

The Rivers state government has confirmed the death of its Attorney General and Commissioner for Justice, Honourable Emmanuel Chinwenwo Aguma.

He died on Friday at a hospital in London, a statement by the state Commissioner for Information and Communications, Emma Okah, said.

According to Okah, until his death, Aguma served with an amazing sense of responsibility, commitment, passion, competence and courage.

“At all times, even in his sick bed, his exemplary zeal to serve Rivers State never waned,” he added.

Consequently, the Rivers State Governor Nyesom Wike ordered that flags should be flown at half-mast for two days starting from Saturday, August 11, 2018, in honour of the departed legend.

The government said Aguma will indeed be missed for his versatility and invaluable contributions to the development of the State and Nigeria as a whole.

It, therefore, called on all Nigerians to continually remember the family of the deceased in their prayers.

“This loss is monumental but we urge all people of goodwill to remember his wife, children, mother and the entire Late Chief Emmanuel W. Aguma family of Port Harcourt as well as the State in prayers”.

Aguma, SAN, was a member of Peoples Democratic Party. Between 2000 and 2002 Aguma worked as Secretary of the Nigerian Bar Association, Port Harcourt Branch, and also chaired the Bar from 2006 to 2008.

On 10 July 2015, the Legal Practitioners Privileges Committee conferred the rank of Senior Advocate of Nigeria (SAN) on him alongside 20 others.

Aguma is renowned for his position on the controversy surrounding the appointment of the President of the Rivers State Customary Court of Appeal as the acting Chief Judge of Rivers State. His position is captured in a paper he wrote:

A Greek Gift By Emmanuel Chinwenwo Aguma

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 Rivers State is LEGALLY WRONG and UNCONSTITUTIONAL. I rely purely on the provisions of the Constitution of the Federal Republic of Nigeria 1999 (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” (words of the Attorney General) before his “secondment” (word of the Attorney General) 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 been bothered.

I am however intellectually pained and distressed that such a contention can also be made by the Honourable 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.

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.

“ The two courts are separate and distinct, with different jurisdiction and membership. A judge of the one is different from that of the other and its membership cannot be interchanged. It is only the Constitution of the country which established both courts and prescribed the qualification of their members and their jurisdiction, that could make a judge of one court sit in another; but regretfully, no such provision exist in the present constitution”

All legal practitioners know or ought to know that the Customary Court of Appeal of a State and the Sharia Court of Appeal of a State are on equal constitutional pedestal. The principles of the 1979 Constitution with regard to the distinct and separate nature of the Sharia Court of Appeal/Customary Court of Appeal vis-à-vis the High Court of a State are retained in the 1999 Constitution. Similarly, the decision in Ado v Dije (supra cit.) still holds good today, except to the deliberately mischievous whom I challenge to convince one to the contrary.

That is why when there was need to appoint the President of the Customary Court of Appeal in Rivers State the National Judicial Council (NJC) was properly involved in the process and the Port Harcourt Branch of the Nigerian Bar Association commented on the suitability of the candidate(s). Nowhere in the letter from the Chief Judge of Rivers State to the Port Harcourt Branch of the Nigerian Bar Association requesting for the comments of the Nigerian Bar Association on the suitability of the candidate(s) and the comments of the Nigerian Bar Association as requested was the word “secondment” used. The Judicial Service Commission (JSC) cannot without the concurrence of the NJC use such a word. With respect, I dare say that both bodies cannot even use the word “secondment” since it is not provided for in the 1999 Constitution.

Thirdly, from the date the President of the Rivers State Customary Court of Appeal transited from a Judge of the High Court of Rivers State to become a Judge of the Rivers State Customary Court of Appeal and its President by subscribing to his Oath of Allegiance and Judicial Oath, he ceased to be a Judge of the High Court of Rivers State. This is the fulcrum of the decision of Supreme Court in Ogbunyiya v Okudo (1979) 3 LRN page 318. It is therefore fallacious and intellectually dishonest in order to defend the indefensible to pretend that the President of the Rivers State Customary Court of Appeal still clung unto his toga of a High Court Judge simply because he was first appointed into that Court as a Judge before being appointed as the President of the Rivers State Customary Court of Appeal.

So much reference has been made by the Honourable Attorney General of Rivers State to the Rivers State Customary Court of Appeal Law Cap 41 Laws of Rivers State of Nigeria (LRSN) 1999 in justification of this indefensible act. Protagonists of this obscenity have cited section 9 of the said Law to justify their perfidy. It is my contention that there is nothing in the said section that contradicts the clear and unambiguous provisions of sections 271(4) and 281(4) of the 1999 Constitution. Even if there is, then section 9 of the Rivers State Customary Court of Appeal Law is to the extent of the inconsistency null and void. That is the purport of section 1(3) of the 1999 Constitution. Judicial authorities on this provision of the 1999 Constitution and in support of my contention are legion. The Rivers State Customary Court of Appeal Law, and/or any other law enacted by the Rivers State House of Assembly to derogate from the provisions of section 271(4) of the 1999 Constitution are therefore of no moment in this wholly constitutional issue. As was clearly held in Ado v Dije (supra cit.), and I quote at the risk of repetition but for emphasis:

“It is only the Constitution of the country which established both courts and prescribed the qualification of their members and their jurisdiction, that could make a Judge of one court sit in another; but regretfully, no such provision exist in the present constitution” (emphasis mine).

Ordinarily, it should not bother me whom the Governor appoints as the acting Chief Judge of Rivers State. However, in the peculiar circumstance of this appointment, I am bothered.

As a past Secretary and Chairman of the Nigerian Bar Association Port Harcourt Branch; a past Secretary of the Section on Legal Practice of the Nigerian Bar Association; and the current Secretary of the Nigerian Bar Association Rule of Law Action Group under the Chairmanship of Deacon Dele Adesina SAN and the leadership of our distinguished NBA President Okey Wali, Esq. SAN, I am duty bound to speak up when the provisions of the 1999 Constitution are violated in my home state which also happens to be the home state of the NBA President. This duty on me is compounded by the fact that the persons who are neck deep in this violation of the constitution are first and foremost legal practitioners.

We as lawyers have a duty to uphold the rule of law. It is in furtherance of those duties that I have ventured into this discourse. The law as stated in the 1999 Constitution and affirmed in Ado v Dije (supra cit.) is unequivocal. It is by now clear that:

The Rivers State Judiciary consists of the High Court of Rivers State, the Rivers State Customary Court of Appeal, the Magistrates’ Court of Rivers State and the Rivers State Customary Court. All four Courts are distinct and separate in terms of appointment of judicial officers (Judges and Magistrates) and spheres of jurisdiction.

The High Court of Rivers State is distinct and separate from the Rivers State Customary Court of Appeal.

The office of Judge of the High Court of Rivers State is distinct and separate from the office of Judge of the Rivers State Customary Court of Appeal.

The two offices are not interchangeable.

Section 271(4) of the 1999 Constitution excludes a Judge of the Rivers State Customary Court of Appeal from being appointed the acting Chief Judge of Rivers State just as section 281(4) of the 1999 Constitution excludes a Judge of the High Court of Rivers from being appointed the acting President of the Rivers State Customary Court of Appeal.

The fact that the President of the Customary Court of Appeal of Rivers State ranks next in precedence to the Chief Judge of Rivers State does not make him the most senior Judge of the High Court of Rivers State, as he is not a Judge of the High Court of Rivers State.

Judges of the Customary Court of Appeal of a State including its President no matter how high they rank in seniority as Judges in the Judiciary of a State are completely excluded from appointment into the office of Acting Chief Judge of a State because they are not Judges of the High Court of a State.

CONCLUSION:

It is never too late to make amends. I therefore humbly urge all the persons responsible for this repugnant act to collectively and/or individually do the right thing. I particularly call upon the President of the Rivers State Customary Court of Appeal to reject the Greek gift of acting Chief Judge that bodes no one and the Judiciary in particular any good.

His Lordship swore in his Oath of Allegiance and Judicial Oath respectively to defend the Constitution of the Federal Republic of Nigeria and perform his functions to the best of his ability and in accordance with the Constitution of the Federal Republic of Nigeria.

I therefore respectfully implore His Lordship to politely thank the Governor for His Excellency’s kind consideration, reject the Greek gift, even if belatedly and return to his Constitutional duty post. His Lordship who is first and foremost a legal practitioner has a higher constitutional and moral duty to do so than the Governor of Rivers State even if the Governor has in his own Oaths sworn to also defend and uphold the Constitution of the Federal Republic of Nigeria.

I rest my case.

Emmanuel Chinwenwo Aguma, Esq.

http://www.nan.ng/news/rivers-loses-attorney-general/

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