Yemi Adaramodu
1.00 INTRODUCTION
1.01 Our attention has been drawn to the joint statement issued and read at the recent introduction of the newest members of the bench in Ekiti State and the incessant and unbecoming abuse of the Governor of Ekiti State by the leadership of the Bar in the state.
It is becoming increasingly glaring that some Officers of the Nigerian Bar Association in Ekiti State are hell bent on using the highly revered Association as a forum for promoting a political agenda of the most pernicious kind. There is, therefore, an imperative need to sensitize the teeming members of the Association and the general public to this sad development in the belief and hope that they would be able to call the dramatis personae to order before incalculable damage is done to the name and reputation of the Bar in Ekiti State.
1.02 One of the most celebrated attributes of the legal profession is the penchant for decorum in the expression of opinions and even criticisms. A situation in which some officers of the Bar would find it comfortable to dispense with this golden attribute, all for the sake of ill-disguised selfish and political interests, can only do a monumental disservice to the name and reputation of the Bar.
2.00 APPOINTMENT OF NEW JUDGES
2.01 The NBA Ado-Ekiti Branch has for some time now engaged in media warfare over the issue of appointment of new Judges in the State. Significantly, the leadership of the Branch has threatened fire and brimstone, in official and unofficial quarters, in relation to the decision of the State Governor not to give his consent to the recommendation of Messrs. Dele Omotoso and Kayode Ogundana for appointment as Judges of the High Court of the State.
2.02 A new dimension was added at the introduction ceremony of the newly sworn-in Judge of the High Court of the State, Hon. Justice E. A. Adesodun, on 17th April, 2012. In a joint speech credited to the Ado-Ekiti and Ikole-Ekiti Branches of the Nigerian Bar Association, Messrs. Owoseni Ajayi and Ademola Omojesu Okeya, Chairmen of the two Branches, employed the most abrasive and denigrating language thinkable to pillory the executive and judicial arms of the State on the issue of appointment of Judges and sundry others. The fact that the gathering was largely peopled by non-lawyers could not deter the duo in the unjust and unwarranted desecration of the judicial institution especially. Lawyers have come to be widely associated with the saying that one should not wash one’s dirty linen in the public. That injunction was left unheeded as the speech was dripping with utter scorn and disdain for the sacredness usually attached to the judiciary. Among others, the judiciary was accused of conniving with the Governor to secretly swear in Hon. Justice Adesodun. While it is for the judiciary itself to adjudge whether or not the Chairmen acted professionally in the circumstance, it is incumbent on the executive arm of the Ekiti State Government to correct the overwhelmingly wrong impressions and gross distortions in the speech under reference.
2.03 The process for the appointment of a High Court Judge is explicitly prescribed in the Constitution of the Federal Republic of Nigeria. Section 271 (2) of the 1999 Constitution, as amended, has this to say:
“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.”
2.04 In the recent past, the National Judicial Council, in tune with the above provision, recommended three persons for appointment as Judges of the Ekiti State High Court. On the receipt of the recommendation, the Governor assented to the appointment of one of the three and withheld his assent to the remaining two. While the Bar in Ekiti State has been given the impression that the Governor withheld assent because the two appeared against the political party of the Governor in election petition tribunals, the falsehood in this position is patently borne out by the fact that Mr. kayode Ogundana is not known to have appeared in any election petition against the Action Congress Party of Nigerian of the Governor in the last round of election petitions or anyone before then. Even in the case of Mr. Bamidele Omotoso, he was not particularly visible in the rank of the Lawyers to the Peoples’ Democratic Party in the election petitions that culminated in the declaration of the incumbent Governor of the State as the winner of the Gubernatorial contest. Therefore, the accusation being peddled that the Governor refused to “formally appoint and swear in” the other two because they appeared against his party at tribunals is nothing other than a red herring and can only hoodwink the undiscerning.
2.05 The authentic position on this issue is that the Governor genuinely has his convictions as to why the remaining two should not be appointed Judges. A number of people have engaged the Governor on the issue and His Excellency has always taken his time to explain his position and reservations about the appointment of the duo. It is the belief of the Ekiti State Governor that it is not auspicious to use a public forum of this nature to disclose the information at the disposal of the Governor which, in the estimation of the Governor, renders it unsafe and inexpedient to appoint the two.
2.06 What is, however, of interest is that the leadership of the NBA in Ekiti State has not thought it fit and proper to meet with the Governor and hear his own side of the story on the issue. Rather, it has found it convenient and comfortable to invent fantasies and phantom reasons in the calculation that the Governor would be blackmailed or pummeled into submission.
2.07 It is recalled that the Ado-Ekiti Branch of the NBA at a time wrote to the Governor giving him ultimatum to write letters of appointment to the remaining two and arrange for their swearing-in alongside the third person whom the Governor found worthy of appointment. Simultaneously with the writing of that letter and not minding the ultimatum given, the Association filed a lawsuit on the matter. As if that was not disquieting enough, the leadership of the Association in the State immediately externalized the issue via a well publicized press conference where the Governor was unsparingly pilloried even when the Association had not heard him explain his position on the issue. One of the twin pillars of natural justice is the injunction to hear the other side before taking a position on an issue. This principle could not have been lost on the leadership of the Bar in the State if it had actually been motivated by altruistic considerations on this matter.
2.08 Remarkably, the powers that be in the Ekiti State Bar have vociferously been pontificating that once the National Judicial Council has recommended the appointment of a person as a Judge, it becomes a fait accompli for the Governor and that the Governor does not have any discretion (even when the Governor has unimpeachable reasons to the contrary!).
2.09 However that may be, the leadership of the Bar, in its wisdom, has taken the issue to Court for adjudication. The well acclaimed tradition is that when a matter is pending in Court, parties refrain from making comments that could be one way or the other prejudicial to the proceedings in Court. In clear breach of this agelong principle, the leadership of the Bar in Ekiti State has been making such comments as could give the impression that it is determined to stimulate public pre-judgment of the matter against the State regardless of what the correct position of the law would eventually be said to be by the Court.
2.10 In the speech of the two Branches of the Bar in Ekiti State under discourse, the Chairmen have accused the Governor of executive recklessness and unconstitutionality in not performing the alleged “duty” and “obligation” of formally appointing and swearing-in the two recommended by the National Judicial Council. Pray, what is left for the Court, to which they had hitherto submitted that issue for adjudication, to decide? What then is the benefit of taking the matter to Court for adjudication? Is it not obvious that such
a position can only soil the name and reputation of the judiciary in the mind of the uninitiated where the court (no matter how correctly) subsequently decides the case in favour of the Governor? The questions can pour in ad infinitum!
2.11 The Ekiti State Government, even in the face of the gravest temptation by the Bar leaders, will not succumb to join issue with them on the propriety or otherwise of what the Governor has done on this issue of appointment of Judges. It is the province of the Court to decide that. Suffice to state that it is our firm conviction that the Governor is not under obligation to appoint a person as a Judge once convinced that it is not in the overriding interest of the State to do so. The Governor has given his reasons for not appointing the two in this instance at the relevant quarters and shall be prepared to do so at every auspicious occasion and forum. Pages of newspapers are not considered as such auspicious forum. This explains why the State has not responded to the alleged reasons on the face of newspapers. If the Bar Leadership in Ekiti State is well intended, it is an issue that should be taken with the Governor one on one before externalization (if it becomes necessary).
3.00 APPOINTMENT OF SOLICITOR-GENERAL AND PERMANENT SECRETARY
3.01 The Nigerian Bar Association took the Governor, the Civil Service Commission and the Attorney-General of Ekiti State to Court on the advertisements put up by the Civil Service Commission for suitable candidates to apply for the vacant position of the Solicitor-General and Permanent Secretary in the Ministry of Justice of the State. It is the contention of the Claimant in the State that the Civil Service Commission (as at that time) was not properly constituted and that the said Commission lacked the power to advertise for the filling of the office and also the power to appoint a person to fill the vacancy.
3.02 Under Section 208 (1), (2) and (3) of the 1999 Constitution, as amended, the Governor is given the power and the prerogative to appoint a person into the position of a Permanent Secretary or its equivalent in the Civil Service of the State. The provisions run thus:
(1) Power to appoint persons to hold or act in the offices to which this section applies and to remove persons so appointed from any such office shall vest in the Governor of the State.
(2) The offices to which this section applies are, namely
(a) Secretary to the Government of the State;
(b) Head of the Civil Service of the State;
(c) Permanent Secretary or other chief executive in any Ministry or Department of the Government of the State howsoever designated; and
(d) any office on the personal staff of the Governor.
(3) An appointment to the office of the Head of the Civil Service of a State shall not be made except from among Permanent Secretaries or equivalent rank in the Civil Service of any State or of the Federation.
3.03 Out of a desire to allow all and sundry to participate and give room for transparency in the appointment process, the Governor directed the Civil Service Commission to publish the advertisements which the Bar Association saw and instituted a Court action on.
3.04 While it is true that the action is still pending in Court, it must be mentioned that the claims in the case only challenge the power of the Civil Service Commission as a body to advertise for and appoint a person to fill the vacancy in the office of the Solicitor-General and Permanent Secretary. There is no contention or controversy about the power of the Governor to do so as reserved in the Constitution. For clarity, these are the reliefs sought in the Court action where the Civil Service Commission is the 2nd Defendant:
1. A DECLARATION that the advertisements of vacancy in the post of Solicitor General & Permanent Secretary, Ministry of Justice placed by the Civil Service Commission on page 63 of the Nation Newspaper of 11th January, 2011 and page 8 of the Nation Newspaper of 12th January, 2011 is null, void and of no effect whatsoever.
2. AN ORDER nullifying the advertisements of vacancy in the post of the Solicitor General and Permanent Secretary, Ministry of Justice placed by the Civil Service Commission on page 63 of the Nation Newspaper of 11th January, 2011 and page 8 of the Nation Newspaper of 12th January, 2011.
3. AN ORDER of Injunction restraining the Civil Service Commission, Ekiti State or any other person or authority from further publishing or advertising vide any media, vacancy in the post of the Solicitor General and Permanent Secretary, Ministry of Justice, Ekiti State.
4. AN ORDER of Injunction restraining the Civil Service Commission from considering, short-listing, examining, interviewing, recommending, or appointing candidate(s) to the post of the Solicitor General and Permanent Secretary, Ministry of Justice, Ekiti State.
3.05 It is to be easily seen from the reliefs set out above that there is nothing to tie the hands of the Governor in the appointment of the Solicitor-General and Permanent Secretary. Put in plain terms, the power of the Governor to appoint is not under challenge in the pending action. Since the affairs of the Ministry of Justice have been suffering neglect by reason of absence of a Solicitor-General and Permanent Secretary, and since the Bar Association has never contended that the Governor on his own could not appoint the Solicitor-General and Permanent Secretary, the Governor recently appointed one Mr. Dayo Apata to fill the vacuum and move the Ministry of Justice forward.
3.06 Although the leadership of the Bar has given the impression that the appointment was done without deference to its pending matter, a careful perusal of the claims set out above would reveal that this is another attempt at cheap blackmail. The appointment made by the Governor bears no nexus with and does not in any way detract from the subject-matter of the pending suit.
3.07 While it has been argued that the Governor appointed his kinsman into the office, the Chairmen of the two Branches of the Bar in Ekiti State have conveniently chosen to ignore the fact that the gentleman appointed is pre-eminently qualified for the appointment as one of the most senior directors in the Federal Ministry of Justice. As the Ministry of Justice is today, there is no one who is near the new appointee in terms of experience in the Civil Service and seniority at the Bar. As mentioned by the two Chairmen in their aberrational speech, the matter of appointment of Mr. Dayo Apata has been taken by them to the Court. Thus, nothing else need to be said about it here.
It is however pertinent to state here that the court has, on April 19th, ruled against the NBA in the matter.
4.00 CONCLUSION
4.01 It is noted that the duo of Owoseni Ajayi, Esq. and Ademola Okeya, Esq. have been unreservedly abrasive in their speech in question and wantonly disparaged the office of the Governor of Ekiti State. While it is our intention to leave them to posterity to judge, circumspection demands that the good people of Ekiti State and members of the Bar in Ekiti State in particular should be sensitized to their mendacious, pernicious and inimical intentions under the façade of defending the rights of the members of their Branches of the Bar.
4.02 The Bar is too important to be turned into an arena for opportunistic political Shenanigans and senior members of the Bar ought to call the current leadership of the Bar to order. A word is enough for the wise.
Yemi Adaramodu is the Chief of Staff to Ekiti State Governor. He wrote this letter to the President of the Nigeria Bar Association. Copies of the letter were also sent to the Branch Chairmen, NBA Ado- Ekiti and Ikole Branches; past Presidents of the NBA; Senior Advocates of Nigeria from Ekiti State; and members of the NBA in Ekiti State
.