Nigerians woke up to an unusual occurrence on February 18: the Benue House of Assembly recommended the immediate removal of the Chief Judge (CJ), Justice Maurice Ikpambese.

It was over allegations of gross misconduct and violations of judicial ethics.

The legislative house recommended the swearing-in of Justice Theresa Igoche, the next most senior judge, as the acting CJ.

The lawmakers were said to have acted pursuant to a petition by Governor Hyacinth Alia, in which he made a series of allegations against Justice Ikpambese.

In the petition, the governor alleged that Justice Ikpambese abused his office by voiding the Benue State Electoral Law earlier passed by the House of Assembly and assented to by the governor.

The issue divided the House, with 13 members dissociating themselves from the decision to remove Justice Ikpambese from office.

There were moves to prevent Justice Ikpambese from accessing his office.

A heap of sand was dropped at the entrance to his office a few days after the lawmakers made their pronouncement.

The sand was later removed and the CJ has since resumed duties following the intervention of the National Judicial Council (NJC).

Although its decision in relation to the CJ has been hugely condemned, the Benue Assembly argued that it acted within the law.

The Majority Leader, Saater Tiseer, insisted that the House exercised its powers under Section 292(1)(a)(ii) of the 1999 Constitution.

Tiseer was of the view that, under the section, a Chief Judge, Grand Kadi or President of a Customary Court of Appeal of a state could be removed by the governor, acting on an address supported by a two-thirds majority of the House of Assembly, praying that the person 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.

He added: “The House did not recommend the removal of CJ as a judicial officer but as the CJ of Benue as provided by the law.

“The House did not originate any petition against the CJ, therefore, it has no business with the NJC because the law only empowers them to act on the address of the governor, which they did.”

The action of the Benue State House of Assembly attracted swift reactions from key stakeholders within the nation’s legislative and judicial circles.The NJC faulted the Benue House’s resolution.

The NJC, in a statement by its spokesperson, Kemi Ogendengbe, stated that the decision was an affront to extant provisions of the Constitution.

It argued that the powers to investigate and discipline any judicial officer for any misconduct rests solely with it.

The NJC said: “Unfortunate as this development is, Council wishes to reiterate that there are unambiguous provisions of the Constitution of the Federal Republic of Nigeria, 1999 on discipline and appointment of judicial officers vested in the Council, which clearly are not adhered to in the instant case.

“Although the council had this morning received a petition against Hon. Justice Maurice Ikpambese, that petition is yet to be investigated in line with Council’s investigation procedure and the principles of fair hearing.

“As far as Council is therefore concerned, until the complaint is investigated and deliberated upon by it, Hon. Justice Maurice Ikpambese remains the Chief Judge of Benue State,” the NJC said.

The Nigerian Bar Association (NBA) also faulted the decision of the Benue lawmakers.

The NBA, in a statement, described the resolutions by the Benue House as inexcusable and a breach of the Constitution.

It stressed that the House of Assembly of any state lacks the power to remove a Chief Judge without NJC’s involvement.

“The Nigerian Bar Association views with contempt the purported resolution passed by the Benue State House of Assembly directing Governor Hyacinth Alia to remove the Chief Judge, Honourable Justice Maurice Ikpambese, from office.

“The resolution is not only unjustifiable but violates the spirit and intent of the Constitution of the Federal Republic of Nigeria.

“The removal of a judicial officer, especially one occupying the esteemed position of Chief Judge, must adhere strictly to due process as outlined in our Constitution.

“Any deviation from this process is a direct affront to the rule of law and poses a significant threat to our democracy.

“It is laughable for the House of Assembly of any state to purport to have the power to discuss, much less recommend, the removal of a Chief Judge without the involvement of the National Judicial Council,” the statement read.

The Senate also argued against the decision.

In a letter, signed by the  Chairman, Committee on Judiciary, Human Rights and Legal Matters, Senator Adeniyi Adegbanmire (SAN) and addressed to the Speaker of the Benue State House of Assembly, Hyacinth Dajoh, the Senate expressed concern over the Benue lawmakers’ decision.

The Senate noted that the decision contravened the provisions of Section 292 of the Constitution.

It added: “The Senate has considered and deliberated on the matter extensively.

“Thus, we believe that it is imperative to uphold the rule of law and ensure that the judiciary remains independent and impartial.

“The removal of a judge, without following constitutional procedure, undermines the integrity of the judicial system and sets a dangerous precedent.

“Accordingly, we respectfully request that the House of Assembly takes the necessary steps to address this issue and ensure that all steps taken in respect of the Chief Judge of Benue State accord with the provisions of the Constitution.”

Incidentally, this is not the first time a governor would be working with a state’s House of Assembly in an attempt to remove a sitting CJ from office without recourse to the NJC.

On May 4, 2009, the Kwara State Executive Council, (EXCO) under the leadership of then Governor Bukola Saraki resolved to remove the state’s CJ, Justice Raliat Elelu-Habeeb, a resolution that the state’s legislative house later ratified.

Justice  Elelu-Habeeb challenged her removal up to the Supreme Court, which gave a judgment on February 17, 2012, voiding her purported sack and ordering her reinstatement.

In January 2018, the Abia State House of Assembly recommended the suspension of the Chief Judge, Theresa Uzokwe, which the then Governor Okezie Ikpeazu accepted.

He appointed another judge, Justice Obisike Orji, in an acting capacity.

On January 31 2018, the NJC intervened and declared the purported suspension of Justice Uzokwe, as unconstitutional, null and void, and the subsequent swearing-in of Justice Orji as Acting Chief Judge as invalid and unconstitutional.

On April 2, 2019, the Kogi State House of Assembly recommended to then Governor Yahaya Bello, the removal of Justice Justice Nasir Ajanah as the state’s CJ.

Justice Ajanah challenged the recommendation before the state’s High Court, sitting in Koton-Karfe in a suit marked: HC/KK/11/CV/2018.

In a judgment in May 2019 Justice Alaba Omolaye-Ajileye, held among others, that the executive and legislature, either jointly or unilaterally, could not remove the CJ without recourse to the NJC.

Justice Omolaye-Ajileye held that to allow only the Assembly and the governor of a state to remove a CJ of a state or any judicial officer, without the input of the NJC, was tantamount to destroying the very substratum of justice and introducing a system of servitude, inconsistent with the constitutional independence of judges.

By its February 17, 2012 judgment in the case of the CJ of Kwara State, the Supreme Court effectively spelt out the process to be adopted in removing a CJ and other judicial officers.

The apex court held that before a president or a governor can exercise the power of removal of a Head of Court or other judicial officers such can only be done on the recommendation of the NJC and not otherwise.

The case is cited as: Hon. Justice Raliat Elelu-Habeeb & Anor v. the Hon. Attorney General of Federation & Ors (2012) LPELR-SC.281/2010.

The Supreme Court held, in the judgment, that although Section 292(1) of the Constitution made no provision for the NJC to play any role in the removal of a CJ of a state, the fact that the council  (NJC) has a vital role to play in the appointment, removal and exercising control over a CJ of a state under Section 271(1) of the Constitution and also under paragraph 21 of part 1 of the Third Schedule to the same Constitution is not at all in doubt.

It added that the conditions specified under Section 292(1)(a)(ii) of the Constitution for the exercise of the power of removal must be satisfied before such power can be validly exercised by both the Governor and the House of Assembly.

The court identified the four necessary conditions to include:

• Inability of the affected judicial officer to discharge the functions of office or appointment.

• The inability to perform the functions of his office could arise from infirmity of the mind or of body.

• For misconduct

• The contravention of the code of conduct.

It added: “All these conditions or basis for the exercise of power to remove a state Chief Judge must be investigated and confirmed by credible evidence and placed before the Governor and the House of Assembly before proceeding to exercise their power of removal, granted by the Section of the Constitution.

“For example, the ground of removal of a state Chief Judge for inability to perform the functions of his office or appointment cannot be ascertained and confirmed by the Governor or the House of Assembly in the absence of any input from the NJC under which supervision the Chief Judge discharges his functions as judicial officer and which body also is directly responsible for exercising disciplinary control over the said state Chief Judge.

“It is not difficult to see that for the effective exercise of the powers of removal of a Chief Judge of a state by the Governor and House of Assembly, the first port of call by the Governor on his journey to remove a Chief Judge of the state shall be the NJC which is equipped with the personnel and resources to investigate the inability of the Chief Judge to discharge the functions of his office (the subject of disciplinary action of removal through the committees of the council), and where the infirmity of the mind or body is involved (the services of a medical board to examine and submit an appropriate report on the Chief Judge to be affected) could also avail the council in the process of investigation.

“It is for the foregoing reasons that I hold the view that in the resolution of the issue at hand, the entire provisions of the 1999 Constitution in Sections 153(1)(i)(2), 271(1), 292(1)(a)(ii) and paragraph 21 of Part 1 of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 dealing with the appointments, removal and exercise of disciplinary control over judicial officers must be read, interpreted and applied together in resolving the issue of whether or not the Governor of a state and the House of Assembly of a State can remove a Chief Judge of a State in Nigeria without any input of the NJC.

“This is because the combined effect of these provisions of the Constitution has revealed very clear intention of the framers of the Constitution to give the NJC a vital role to play in the appointment and removal of judicial officers by the Governors and Houses of Assembly of the State.”

Justice Omolaye-Ajileye amplified this position in the judgment in Justice Ajanah’s case.

He re-emphasised the position of the law that it is only the NJC, established under Section 153(i) of the Constitution, that has the power to recommend to the governor, the removal of a judicial officer.

He noted that where a chief judge of a state is to be removed, for whatever reason, it is the NJC, not the state assembly that has the power to make recommendations to the governor of a state under item 21(d) of the Third Schedule to the Constitution.

“It is also the NJC, established under Section 153(i) of the constitution (as amended), that has the power to recommend to the Governor, the removal of a judicial officer.

“Where a Chief Judge of a state is to be removed, for whatever reason, it is the NJC, not the state House of Assembly that is empowered to make recommendations to the governor of a state under item 21(d) of the Third Schedule to the Constitution.

“To allow only the House of Assembly and the governor of a state to remove a Chief Judge of a state or any judicial officer for that matter, without the input of the NJC, will be monstrous and outrageous as it is capable of destroying the very substratum of justice and introducing a system of servitude, utterly inconsistent with the constitutional independence of judges,” he said.

Senior lawyers, including Godwin Obla (SAN), Dr. Joshua Musa (SAN), Prof Yemi Akinseye-George (SAN) and Femi Falana (SAN) have presented their perspectives on the issue.

Obla and Musa described the action of the Benue lawmakers as a gross constitutional breach to destabilise the state judiciary.

They accused the lawmakers of violating the oath they subscribed to to protect the Constitution, arguing that Section 292(1)(a)(ii) of the Constitution was not complied with in the purported removal of the Benue CJ.

Obla and Musa made their position known in a joint statement they released as leaders of the Association of Idoma Lawyers (AIL).

“The members of the Benue House of Assembly were voted for by their various constituencies to effectively represent them and make laws for the good governance of the state.

“This lame attempt to remove the Chief Judge of Benue State is embarrassing and regrettable.

“We commend the NJC, the NBA, the Nigerian Labour Congress and all other organisations and persons for their timely intervention.

“We also commend the Benue State Judiciary for the unity displayed at this trying time and the laudable resistance put up against tyranny and abuse of the Constitution.

“The Legislative arm of government in Benue State must learn to function within the province of the Constitution of the Federal Republic of Nigeria, 1999 (as amended,” they said.

Akinseye-George hailed the prompt intervention by the NJC, adding that the development is embarrassing, particularly in the face of the Supreme Court’s decision in the former Kwara CJ’s case.

Falana, who frowned at the development, urged the NBA to sanction members of the Benue State House of Assembly, who are lawyers and chose to be involved in the attempt to subvert the Constitution.

He noted that it is still the law that a Chief Judge cannot be removed from office without a prior investigation conducted by the National Judicial Council.

Falana requested the leadership of the legal profession to follow the examples of other democracies by sanctioning lawyers involved in using their official positions to undermine democracy.