EXPLAINER: Did Governor Adeleke Break The Law In The Removal/Appointment Of Osun CJ?

Governor Ademola Adeleke acting on the resolution of the Osun State House of Assembly on Thursday, asked the State Chief Judge, Justice Oyebola Adepele-Ojo to step aside, and appointed Justice Olayinka David Afolabi as the state Acting Chief Judge.

The appointment comes hours after the National Industrial Court sitting in Ibadan, restrained the Governor, Attorney General of the State, Osun State Judicial Service Commission and Accountant General of the state from taking any action against Justice Adepele-Ojo.

Adeleke asked the State Chief Judge to step aside on recommendations of the State House of Assembly, pending investigation of allegations of gross corruption, abuse of office, disregard among others against her by the Parliament

The news of the ‘sack’ of the state Chief Judge and appointment of a new one either in acting or substantive capacity has sent tongues wagging, raising posers on the legality or otherwise of such.

Afolabi’s swearing-in, according to a statement by Olawale Rasheed, spokesperson to the governor, will be performed by the state deputy governor, Kola Adewusi, on Friday.

However, Osun Defender presents the constitutional provisions on the issue as contained in Sections 271 and 292 of the 1999 constitution (as amended).

APPOINTMENT OF A STATE CHIEF JUDGE

Section 271 of the 1999 constitution (as amended) says:

1) 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.

(2) The appointment of a person to the office of a Judge of a High Court of a State shall be made by the Governor of the State acting on the recommendation of the National Judicial Council.

(3) A person shall not be qualified to hold office of a Judge of a High Court of a State unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.

(4) If the office of Chief Judge of a State is vacant or if the person holding the office is for any reason 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.

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

REMOVAL OF A JUDGE/JUDICIAL OFFICER

Section 292 provides an explanation on the subject of removal of judges/judicial officers;

(1) A judicial officer shall not be removed from his office or appointment before his age of retirement except in the following circumstances-

(a) in the case of

(1) Chief Justice of Nigeria, President of the Court of Appeal, Chief Judge of the Federal High Court, President of the National Industrial Court, Chief Judge of the High Court of the Federal Capital Territory, Abuja, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory, Abuja and President, Customary Court of Appeal of the Federal Capital Territory, Abuja by the President acting on an address supported by two thirds majority of the Senate.

(ii) Chief Judge of a State, Grand Kadi of a Sharia Court of Appeal or President of a Customary Court of Appeal of a State, by the Governor acting on an address supported by two-third majority of the House of Assembly of the State praying that he be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct;

(b) in any case, other than those to which paragraph (a) of this subsection applies, by the President or, as the case may be, the Governor acting on the recommendation of the National Judicial Council that the judicial officer be so removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.

(2) Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any court of law or tribunal in Nigeria.

In a chat with Osun Defender, a legal practitioner, Barr. Yomi Obaditan said: “When it comes to the appointment state chief judges, section 271 (1) of the constitution is clear as to where the power resides. Only the National Judicial Council has the power to appoint a state Chief Judge.

“The Governor only sends recommendation to the NJC, who in turn convey their approval or otherwise to the governor.

“However, Section 292 (1) (a) addresses the removal of the Chief Justice of a state amongst others. A Chief Judge can be suspended by resolution of two third of the state house of assembly, but the National Judicial Commission must be informed before such action is carried out.”

He added that:”Section 292(1)(c) says the governor acting on the recommendation of the Judicial Council that the Judicial officer should be removed for his inability to discharge the functions of his office or appointment (whether arising from infirmity of mind or of body) or for misconduct or contravention of the Code of Conduct.”

Though going by precedence, the National Judicial Commission has in the past frowned at the removal of State Chief Judges.

Osun Defender recalls that the NJC sanctioned Justices who made themselves available to be sworn-in in acting capacity in Abia, Kwara, and Ekiti States when the governors removed their respective state Chief Judges.

Gov. Adeleke, however, immediately announced the appointment of Justice Afolabi in acting capacity, pending the investigation of the allegations levelled against the Chief Judge.

It is however unclear if the Osun State House of Assembly before recommending the stepping aside of the state Chief Judge to the Governor informed the National Judicial Council (NUJ) of any petition against Justice Adepele-Ojo, for any wrongdoing.