Gov. Ayade, Judiciary Clash Over Acting Chief Justice – TheNigerialawyer

Politics and ethnic considerations have crept into the
appointment of a new Chief Judge of Cross River State, with the
development pitting the state governor, Prof. Ben Ayade, against
the judicial arm of government in the state.

At issue is the Governor Ayade’s decision to bypass the most
senior judge and appoint a junior officer instead. But the retiring
Chief Judge, Justice Michael Edem, and other judiciary officers in
the state are resisting government’s planned imposition, insisting
that Justice Akon Ikpeme is the rightful person to act as chief
judge of the state.

Justice Edem, while formally bowing out on November 29 at a
colourful valedictory court session, announced Justice Ikpeme as
the Acting Chief Judge pending ratification of his appointment by
the National Judicial Council (NJC) as nature abhors vacuum. The
state government had earlier inaugurated a new State Judicial
Service Council (JSC), excluding some old members and the former
Chief Judge (Justice Edem) to help throw up a junior judge as the
chief judge.

But the ploy was rebuffed by Justice Edem, who had denounced the
so-called inauguration by the governor, contending that the
constitution says, “‘the most senior judge of the High Court… and
not the most senior indigenous judge of the High Court” should take
over. The constitution is clear and compact enough on the issue. It
needs no further elucidation or embellishment there being no
impediment whatever against Akon Bassey Ikpeme who so
qualifies.

“It is not too late to recover the battered jurisprudential
image of the state by the renunciation of the unfortunate saga
before it is too late to salvage it from decomposition. Lastly on
this web, let the culture of decency, proportion, and contentment
rule the passion of waiting for one’s turn and not jumping the gun…
Friction between the three arms of government, being revoltingly
counter-productive, should never be heard in their coasts. From
elementary physics, friction generates heat (and) heat can explode
into a consuming fire.”

A Senior Advocate of Nigeria (SAN), Mrs. Nella Andem-Ewa, who
spoke on behalf of other SANs in the state at the ceremony,
affirmed the nomination of Justice Ikpeme as the Acting Chief Judge
and the candidate for the substantive position by law is the most
senior and the rule of law must be respected.

The JSC led by Justice Edem (before retirement) had earlier
forwarded Justice Ikpeme’s name to the NJC for approval, as she is
the most senior judge in the state. But in a surprise twist of
events, the state governor, Senator Ayade, who is averse to the
emergence of Justice Ikpeme on grounds that she is a non-indigene
from Akwa Ibom State even though married to an Efik man for years,
quickly inaugurated another JSC which the High Court in the state
promptly placed an injunction restraining it, the government and
its agents from functioning.

The injunction was secured by Mr. Edem Ita Edem, Egbara Owa and
Her Worship Fedelia Ene (rtd) for themselves and members of the
authentic JSC in a suit against governor Ayade, the state
government, and six others. Despite the injunction, the new JSC
which was also rejected by the Nigeria Bar Association (NBA), had
after a meeting on November 27 in a letter signed by the newly
inaugurated Attorney-General and Commissioner for Justice, Mr.
Tanko Ashang, and four others forwarded the name of Justice Maurice
Eneji as the preferred Chief Judge.

The letter addressed to the NJC said, “In view of the earlier
recommendation for Justice Ikpeme to be appointed as president of
the Customary Court of Appeal, Justice Eneji is now the next most
senior judge for the position of the acting chief judge of the
state”. Both the governor and Justice Eneji were absent at the
retirement service of the retiring Chief Judge on November 29 thus
widening the face-off.

Worried by the situation as regards the ignoring of the court
injunction by the state government, the House of Assembly and the
new JSC, Edem and others of the authentic JSC went back to court
and filed Form 48 dated November 28 of “Notice of Consequences of
Disobedience to Court Order of 1st day of November, 2019”.

Accordingly, the High Court issued a notice dated November 28 to
the Speaker of the State House of Assembly, Mr. William Eteng, and
the Assembly that reads, “Do please take notice that unless you
obey the directions contained in this order, you will be guilty of
contempt of court and will be liable to be committed to the Federal
Correctional Centre, Afokang, Calabar, Cross River State”.

Now Ayade, the judiciary, NBA and the Efiks are at loggerheads
over the emergence of a new Chief Judge for the state. Justice
Edem, the NBA and the old JSC by law and laid down practice of
seniority are favourably disposed to the appointment of Justice
Ikpeme as the next Chief Judge being the most senior while, on the
other hand, the governor is insisting on the emergence of Justice
Eneji who is junior to Justice Ikpeme.

But this did not go down well with Justice Edem, who had, during
the opening of the current legal year, citing the constitutional
provisions in section 271 (4) and said, “by the provision of the
constitution, it calls for no debate as to who is the most senior
Judge of Cross River State High Court after me. Indisputably, the
most senior Judge, for the avoidance of any illusion, is Justice
Akon Bassey Ikpeme, admitting of no sentiment.”

Another senior lawyer, Mr. Mba Ukweni, also condemned the ploy
to swear in a junior judge in place of the senior saying, section
271. (1) of the Constitution says “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.”

He said the law further stated that “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.

“Except on the recommendation of the National Judicial Council
an appointment pursuant to subsection (4) of this section shall
cease to have effect after the expiration of three months from the
date of such appointment and the Governor shall not re-appoint a
person whose appointment has lapsed.”

He added: “All those attempts are geared towards ensuring that
the Hon Justice Akon B. Ikpeme, who is the next senior Judge in the
hierarchy of Cross River State Judiciary… is denied that
opportunity” as “unsuccessful attempts have been and are still
being made to dissolve, constitute and reconstitute the Cross River
State Judicial Service Commission all for the purpose of
undermining the judiciary in the state by imposing the governor’s
crony, Hon Justice Maurice Odey Eneji, a junior judge, to supplant
Hon Justice Akon Bassey Ikpeme, the next most senior judge in the
Cross River State Judiciary to the retiring Chief Judge.

“It is worthy to note that what Cross River State House of
Assembly was propelled to do by attempting to dissolve and
reconstitute by voice votes Cross River State Judicial Service
Commission is contemptuous of pending proceedings before the
National Industrial Court, Calabar Judicial Division in Suit No.
NICN/CA/38/2019 challenging the dissolution of that commission
established by Section 197(1) of the Constitution of the Federal
Republic of Nigeria, 1999 (as amended).

He therefore appealed to all well-meaning Nigerians and Cross
Riverrians in particular to draw the attention of Governor Ayade
and the Speaker of the state House of Assembly to refrain from
those mindless and selfish breaches of the constitution, as it
would do no good to the state and even themselves. He urged NJC
“not to entertain any request emanating from the government of the
state or any of its agents, purporting to nominate for appointment
as the Chief Judge of Cross River State any person other than as
provided by the Constitution and laid down guidelines/regulations
for that appointment.”

Similarity a group of lawyers in the state who pleaded anonymity
said, “We have observed certain illegal attempts to undermine the
judiciary in Cross River State since the retirement of Chief Judge
Michael Edem. Attempts have been made to introduce ethnicity,
dissolve the Judicial Service Council, woo and intimidate members
of the bar of the state all in an attempt to undermine the
judiciary and throw up a junior judge to supplant Justice (Mrs.)
Akon Ikpeme.”

A statement by Efik Leadership Foundation and signed by its
Chairman, Board of Trustees, Mr. Richard Duke, and Chairman, Good
Governance Committee, Mr. Timothy Archibong Esu, said, “Our
attention has been drawn to the attempt by certain elements in
Cross River State to either rewrite the Nigerian Constitution or
twist history in a rather ignominious manner to suit their whims
over the appointment of the next Chief Judge of Cross River
State.

“In accordance with established order, precedents and express
rules of procedure, he is to be succeeded by Hon. Justice Akon
Ikpeme who is next in order of seniority. Apparently, this does not
go down well with those who think that the position should be
“zoned” to the Northern Cross River and any amenable judge from the
preferred “geopolitical zone” of Cross River State squeezed into
office by all means, fair or foul, consequently bypassing Justice
Akon Ikpeme… We believe the NJC will recommend the next most senior
Judge of the State High Court as the new Chief Judge. This person
happens to be Hon. Justice Akon Ikpeme. This is our stand on this
matter of urgent public interest.”

The NBA Calabar branch has declared the purported inauguration
of a new JSC as a nullity in a statement issued to newsmen in
Calabar recently, signed by Paul Ebiala and Effiom Ayi, Chairman
and Secretary respectively, at its emergency meeting held on
October 29 and viewed the act “as a grave infraction of the
provisions of Section 197(i)(c), 198,199(c) of the Constitution of
the Federal Republic of Nigeria, 1999, (as amended) as well as
Sections 2, 4, 5 of the Judicial Service Commission Law, Cap 12.
Vol. 4 of the Laws of CRS, 2004.”

It was reported that NJC had recently condemned it in its
entirety the practice of chief executives of states attempting to
impose their preferred candidates for an appointment either as
Judge or Chief Judge of a state. Director of Information, NJC, Mr.
Soji Oye, said state governors should learn from the recent events
of Taraba State, where the state governor attempted to circumvent
the law and clear guidelines on the appointment of Chief Judge. Oye
said Ayade is yet to see the wrath of NJC if found to be true that
he plans to swear in Mr. Justice Maurice Eneji instead of the most
senior judge, Justice Ikpeme.

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