Ben Ayade, judiciary clash over acting chief justice

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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