rivers state Governor, Mr. Rotimi Amaechi, on August 20, swore in the new acting chief judge of the state, Justice Peter Agumagu , after the retirement from service of the immediate past CJ of the state, Justice Iche Ndu.
The governor had explained that the new acting CJ would hold the office pending the National Judicial Council’s approval of the candidate recommended for appointment as the state Chief Judge.
But Aturu said the appointment was “egregious desecration of clear constitutional provisions”.
Aturu said, “The legal truth that admits of no sophistry is that section 271(4) of the Constitution clearly permits the governor of Rivers State to appoint only the most senior judge of the High Court to act whenever the office of the Chief Judge is vacant or if the person holding the office is for any reason unable to perform the functions of the office.
“Pupils of nursery schools do not need help to see or know that unless you are a current judge of the High Court you cannot be made the Chief Judge of a State in Nigeria as the law stands today.
“Justifying the illegal appointment of the President of the Customary Court of Appeal on the ground that he was originally appointed as a high court judge, almost borders on the irresponsible.
“Unless a person is on the nominal roll as a High Court judge he or she does not come within section 271 (4) of the Constitution and so cannot be appointed and if appointed the appointment in my view is null and void and with the greatest respect indefensible.”
Rivers State Attorney- General and Commissioner for Justice, Mr. Worgu Boms, had justified the appointment, saying no legal error was committed in swearing-in the President of the Customary Court of Appeal as acting Chief Judge of the state.
Boms explained that Amaechi appointed Agumagu as the acting Chief Judge, because he was the most senior judge in the state judiciary.
Boms had said, “Justice P.N.C Agumagu, the acting Chief Judge is the oldest judge in Rivers State. There is no judge older in terms of date of appointment than he is. Justice Agumagu was appointed a High Court judge; he was never appointed a Customary Court Judge. He was appointed a High Court Judge in 1990, if I am not mistaken.”
But Aturu maintained that section 281(4) of the Constitution further revealed the fault in Boms’ argument.
Aturu said, “To show the utter unsoundness of the arguments in support of the action in Rivers State, one should only call attention to section 281(4) of the Constitution that provides that the most senior judge of the Customary Court of Appeal should be appointed to act for the President of the Court of Appeal in the event of vacancy.
“If the Constitution had intended that the most judicial officer be appointed as acting Chief Judge or acting President of the Customary Court of Appeal in both cases it would simply have said so. Express mention of one thing is the exclusion of the others in law.”