Court Rules Out Buhari’s Power On Appointment Of 11 Judges

BEVERLY HILLS, September 24, (THEWILL) – Justice Inyang Ekwo of the Federal High Court, Abuja has ruled out President Buhari’s authority in the appointment of 11 judges into the bench of the High Court of the Federal Capital Territory (FCT).

The court held that the President 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.

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

The judges were sworn in on September 14, 2020 by the Chief Justice of Nigeria (CJN), Justice Ibrahim Muhammad.

On this, an Abuja-based legal practitioner, Oladimeji Ekengba had on July 15, approached the court in an ex parte motion over what he called “alleged breach of Section 256 (2) of the Nigerian Constitution, 1999, by the President in the appointment of judges of the FCT High Court.”

Joined 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) as respondents. Ekemgba 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.

Delivering judgment on Wednesdayt, Justice Ekwo said the only instance where the president can forward NJC’s recommendation to the Senate, in respect of a High Court judge’s appointment, is when it relates to the appointment of a head of court, like the Chief Judge.

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

“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)”, the judgement reads in part.

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.