ETHICS WEEK 13; APPOINTMENT AND DISCIPLINE OF JUDICIAL OFFICERS
WEEK 13
(I) APPOINTMENT AND DISCIPLINE OF JUDICIAL OFFICERS AND LEGAL PRACTITIONERS.
Judicial officers for the purpose of this discussion are judges who preside over Superior Courts Of Record as enumerated in Section 292, 318 Of the 1999 Constitution. (i.e. SC, CofA, NIC, FHC, HCFCT, HCS, CCA FCT and S, SCA FCT and S. Their appointment and removal are regulated by the constitution and NJC guidelines.
:: QUALIFICATION FOR APPOINTMENT: in terms of years; it varies from court and position. SC = 15 years, COA = 12 years, other courts = 10 years post call (to bar) experience. For Sharia Courts of Appeal, a non-LP may qualify provided he has at least 12 years qualification in Islamic Law from any NJC accepted institution with considerable experience or distinction in the practice of Islamic Law.
Disqualified from appointment if he/she is a member (or had been a member in the last 3 years) of NJC, Federal or State Judicial Service Commission, or Judicial Service Committee (JSC) of the F.C.T.
The appointment of the CJN, Justices of the Supreme Court, President of the Court of Appeal, Chief Judge of the Federal High Court, Chief Judge of the FCT FHC, President of the CCAFCT, Grand Kadi of SCAFCT is by the President upon recommendation of the NJC subject to confirmation of such appointment by the Senate. See for example Section 231, 238, 250 CFRN. For other judges of the above listed courts (except the Supreme Court) there is no need for confirmation of such appointment by the Senate.
For appointment of Chief Judge of State High Court, GK SCA, PCCA of state; it is by the governor of the state on recommendation of the Natinoal Judicial Council subject to the confirmation of such appointment by the House of Assembly of the State in question. For other judges of the above listed courts, no confirmation of HOA is needed. See for example; Section 271 for State High Court.
:: BODIES RESPONSIBLE FOR APPOINTMENT (NOT IN CURRICULUM THOUGH): 3rd Schedule Part 1 CFRN 1999.
- The National Judicial Council[1]: composed of CJN, next most senior SC Justice, President of Court of Appeal, CJ FHC, NIC, Then CJN selects Five CJs, five Retired justices (either of SCourt or CofA) One Grand Kadi, One President of CCA and 5 members of NBA of not less that 15 years post call experience… all to serve in rotation for two years. Finally; Two other non-lp in CJN’s estimation to be of unquestionable integrity.
The NJC recommends (to president and governor of concerned state) appointments, discipline and removal of all superior courts Judges in Nigeria[2] from list of nominees submitted to it by the:
- Federal Judicial Service Commission (suggestions on who should be nominated (or removed) as head or Justice/Judge of SC, CofA, FHC, NIC and Code of Conduct Tribunal).
- Judicial Service Committee for the FCT (with regards to FCT superior Court judges i.e. HCFCT, SCAFCT, CCAFCT[3]).
- State Judicial Service Committee (for superior court judges of the state i.e. HC, SCA, CCA). Additionally, the NJC manage and disburse money for service of the NJC and judiciary.
- 5. President, governor, senate, HOA.
Where there is a vacancy, the next most senior judicial officer would be appointed to fill the vacancy for not more than 3 months.
:: PROCEDURE FOR APPOINTMENT:
The Revised NJC Guidelines and Procedural Rules for Appointment of Judicial Officers of Superior Courts of Record in Nigeria 2014 (replaced 2003 guidelines) have been designed to ensure transparency in the selection process so that the most reputable are nominated and selected.
First there is a Notification; usually the head of the respective court would request the appointment of a specified number of judges to the recommending authority (FJSC, FJSCFCT, SJSC) which in turn intimates the governor and the secretary of the NJC of such request.
Second: When governor (or CJN for federal courts) consents to this[4]; the head of the court concerned would publicise/request for nominations from every judicial officer in the State within a period of time.
Third: Candidates (double the number to be appointed) are shortlisted from the recommendations/application to come up with provisional shortlist[5].
Fourth: the names of shortlisted candidates would be circulated to present and retired judicial officers in the state/of the court and the NBA for comments. The candidates shall fill NJC Form A and returned to the concerned Judicial Commission[6]
Fifth: The judicial commission shall consider the names, documents, etc. and decide which names to finally forward to the NJC as the Final Shortlist. Having regard to Ethics, Moral, integrity and repute, not misrepresented in his application. After this; they forward the final list to NJC with written requiest that the candidates have been selected in compliance with the NJC guidelines and that same selected candidates should be recommended for appointment.
They should attach the following documents; – a letter of intention, governor’s approval, minutes of meeting of the FJSC, SJSC or FCT, CV of Candidate, Comments on proof of availability of accommodation, court rooms, cars and other necessary facilities for the judge.
Sixth: the NJC recommends to the President or Governor who appoints in accordance with the CFRN provision discussed above.
:: GROUNDS FOR DISCIPLINE AND REMOVAL OF JUDICIAL OFFICERS:
– Misconduct: like abuse of office, corruption, conviction for crime, other acts that erode confidence in the Judiciary/Judge-AG Cross Rivers v Esin.
– Breach of Code of Conduct: for Judicial Officers… like refusal to declare assets, dishonest declaration of assets, personal involvement in private business, improper social relationship (Rule 2). Check code of conduct.
– Inability to discharge the functions of his office (maybe due to infirmity of mind or body).
Note that NJC may exercise other disciplinary control other than removal. It can only recommend removal.
:: PROCEDURE FOR REMOVAL OF JUDICIAL OFFICERS:
The Code of Conduct for Judicial officers and Constitution guarantees security of office of judicial officers but on any of the earlier discussed ground, they may be removed provided due process is followed.
First a Complaint against a judicial officer is sent to NJC (headed by CJN).
Second: A committee is set up to investigate the allegation.
Third: Judicial officer concerned is notified in writing of the allegation and given reasonable time to react and be accorded fair hearing.
Where allegation is proved, the NJC would recommend[7] the removal of the concerned Federal or State Court Judge to the President or Governor respectively.
From (Section 292 CFRN 1999); after recommendation by NJC, The president or governor (as the case may be) may remove the judge concerned provided that if it is the head of a Court, he should be acting on an address supported by at least 2/3 majority of the Senate or HOA respectively[8].
:: TYPES OF PROFESSIONAL OFFENCES BY LAWYERS: Section 11, 12 LPA, Rules 3-19 LPDC Rules 2006. They are four.
– Infamous Conduct committed *in a Professional Respect*: a behaviour that is unacceptable and would be dishonourable by his professional brethren of good repute. Solicitor Ex-parte Law Society, MDPT v Okonkwo. This varies and where it is for a crime, the crime should be tired first before discipline commences-Garba v Uni Maiduguri, Denloye v MDPDC. Akintemi and Ors v Onasumechili… and where he is acquitted on technical grounds, discipline could still be commenced. A breach of a RPC can be brought under this-Onitiri Fadipe Charge No. LPDC/IP/82, NBA v Alabi (put Client’s money in his account, Charles Okike v LPDC (misappropriated client’s money), Re A Solicitor Ex Parte the Incorporated Law Society
– Conviction by Competent Court of Nigeria for offence incompatible with the Status of a Legal Practitioner: e.g. financial dishonesty/fraud-R v Abuah, Re Abuah Drug Dealing, treason, etc. Re Weare. He should have been convicted and no appeal should be pending. Argued that it constitutes double jeopardy but dismissed in Re Abuah that striking off is not punishment but necessary to protect the profession[9].
– Obtaining Enrolment by Fraud: maybe by misrepresenting facts, forgery of certificates, non-fulfilment of requisites (qualifying certificate, good character, etc), and other acts which would have disentitled him form enrolment. Provided such misrepresentation was instrumental to his enrolment notwithstanding that it subsequently turned out to be true.
– Other conducts incompatible with the status of Legal Practitioners: i.e. other conducts that could bring the profession into dishonour/disrepute like habitual drunkenness, using foul language, street brawl, seducing client’s wife, etc. as the requirement of good character still remains after call to bar.
:: PUNISHMENT OF LAWYERS FOR PROFESSIONAL MISCONDUCT: ERELU-HABEEB V. NATIONAL JUDICIAL COUNCIL (2012(13 NWLR (PT. 1318) 423 Look at Rule 3-19 of the LPDC Rules 2006
First a written complaint may be against a LP and forwarded to CJN or PCoA or any AG or any CJ or President or Chairman of NBA or Chairman of the Body of Benchers. Rule 3.
Upon receipt, the complaint is forwarded to the NBA which shall conduct and investigation (written representations from the LP can be entertained) and if satisfied, forward a report and copy of complaint to the Secretary LPDC[10].
A date is fixed for hearing by the secretary on the direction of the Chairman of LPDC and hearing notices (along with complaint and NBA investigation report) are served upon parties to the proceeding. At least 15 days should lapse between service of hearing notice and hearing.
All parties should be heard in public. Witnesses, document and evidence be received, the procedure of EA and rules of Natural Justice be complied with-LPDC v Fawehinmi, See Denloye v MDPDC. Upon proof of service, the committee may proceed to hear in the absence of the counsel although absent counsel may apply for a re-hearing in his presence within 30 days from pronouncement and directions of the committee. The committee may discretionarily grant such request where deserving.
The committee shall record whether it finds that the allegation has not been proved or has been proved. In the latter scenario it may give directions that the LP’s name be struck off the roll or LP be suspended for a certain period or admonishment. Money fraudulently obtained by LP can also be ordered to be refunded. Section 11 LPDC Act. Rule 17 LPDC Rules. Such directions should be gazetted.
:: RE-INSTATEMENT OF A LAWYER’S NAME AND CANCELLATION OF SUSPENSION: Application for Restoration of Name/ Cancellation of Suspension can be made by the punished lawyer to the SC, CJN, or LPDC (whichever one punished him).
The disciplinary body, in considering the application, will look at the gravity of the offence, genuine remorse, and whether in the intervening years the lawyer has become fit and proper to be readmitted into the legal profession-Elias CJN in R v A. Abuah. See also Adesanya v AG Federation Re A. C Abuah. A copy of such restoration order is sent to the BOB and Chief Registrar of all High Court and possibly the NBA.
:: APPEALS: lie to the Appeal Committee of the Body of Benchers-Akintokun v LPDC. Appeal from decisions lie to the Supreme Court within 28 days from the day a copy of the Committee’s decision is served on him-Gani Fawehinmi v NBA. NBA should initiate proceedings through its registered trustee.
:: DISCIPLINARY JURISDICTION OF THE SUPREME COURT: Section 12 or 13 LPA Where it finds LP guilty of infamous conduct in any professional respect. It may (after hearing representations) make directions (as to striking off, suspension or admonition) which should also be published in the gazette.
:: DISCIPLINARY JURISDICTION OF THE CHIEF JUSTICE OF NIGERIA: Section 13 LPA. Where disciplinary proceedings are to be instituted (or is ongoing) against a legal practitioner in the LPDC, the CJN may suspend the LP (after hearing representation from the lp in question). No need for the person to have actually been convicted by the court.
Other disciplinary bodies include; the Disciplinary committee of the NBA, Appeal Committee of the Body of Benchers-Akintokun v LPDC 2014.
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[1] THE SECRETARY OF THE COUNCIL IS APPOINED BE THE njc ON recommendation of the FJSC and he shall be a LP.
[2] Also appoint, dismiss and discipline members and staff of the NJC. Also advises the president and governor when their advice is sought on matters and also handles broad issues of policy and administration.
[3] then it can appoint, promote and exercise disciplinary control over the Registrars and chief registrar of the above listed courts together with those of the Magistrate, District and Area Courts. Check 3rd Schedule Part III Of the 1999 Constitution. It is chaired by the CJHCFCT[3]
[4] May recommend a lower number after consultation with NJC Secretary on how many more they can take.
[5] Having regard to experience, seniority, expertise, reputation, federal character, etc-Rule 3.
[6] Attaching CV, 10 judgments obtained or delivered in contested cases in the past two years, medical test result, report from SSS, etc.
[7] Empowered under Third Schedule Part 1 CFRN
[8] As It appears there should be a prior recommendation from the NJC, before confirmation of senante-Erelu Habeeb v National Judicial Council.
[9] That conviction was quashed on technical ground may not absolve him of punishment especially where evidence is strong and compelling.
[10] Note emphasis on NJC for discipline of Judge and LPDC for discipline of LP.
