Order of Mandamus and Appointment of Judges

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Would an Order of Mandamus lie against a president or a governor (as the case may be) for refusal to appoint judicial officers under the 1999 constitution?

An order of mandamus, when properly issued, effectively commands, peremptorily, the doing of an act by a public officer whose duty it is to do such act. Hence, unless sufficient reason to the contrary is shown, a public officer is compelled to perform his duty by an order of mandamus. What this paper seeks to investigate is whether the president or the governor, under the 1999 Constitution can so be compelled to appoint judges under the various sections of the constitution vesting them with the authority to appoint.

There are sub-issues to clarify leading to the appropriateness or otherwise of an order of mandamus in this respect. Thus, the best way to start is to look at the nature of the order itself and the conditions for its being issued.

Mandamus can only lie against a respondent in the following circumstances:

(1) the respondent is a public officer;
(2) he has a public duty;
(3) all conditions necessary for the performance of his public duty have been satisfied;
(4) he has neglected to perform his duty;
(5) the applicant is aggrieved by such neglect;
(6) the applicant has thus specially requested the respondent to perform his duty;
(7) the respondent has refused.

The circumstances as enumerated above are cumulative and chronological. It is important to add that in public interest litigation, condition (5) is readily satisfied. There is no requirement to disclose how the applicant is specially affected. Also in R v Chapman (1845) LTOS 332 the English Court had held that the conditions (6) and (7) are conditions precedent for the order of mandamus to lie. Indeed, also, in Fawehinmi v Akilu (CA) the Nigerian Court of Appeal considered the locus of the applicant emphasizing the importance of condition (5). No doubt, the first four conditions are too elementary for emphasis and nothing need to be said regarding them.

Now, can this order lie against a serving President or Governor, who, undoubtedly, as a public officer may have refused his public (function) of appointing a judicial officer assuming the necessary conditions have been met?

I deliberately used the phrase “public function” and carefully put the word “function” in parenthesis. This is because what is required here is “public duty” and upon inserting the word “duty”, then no doubt, we can only reach one logical legal conclusion, that is, the order lies against them. But, we should carefully examine the various sections of the Constitution empowering either the president or the governor to appoint a judge. Do those sections create a duty or power? If upon careful examination we realize that those provisions create a duty then, the order of mandamus lies against them. If however, they create power, then the order cannot lie against them for no pubic officer can be compelled to exercise his power or use in one way or the other, the discretionary right conferred on him by a statute.

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To examine the constitutional provisions, we shall take sections 231 and 271 respectively for the president and the governor.

S. 231(1) “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the president on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate”.

S. 271(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”.

From these provisions, the order of appointment is as follows:

  1. Recommendation by the National Judicial Council;
  2. Appointment by the president or the governor (as the case maybe);
  3. Confirmation by the Senate or House of Assembly of the State (as the case may be).

It should be noted that the judges who are to be appointed are members of an arm of government- the judiciary. In their appointment process the other two arms participate.

The executive appoints while the legislature confirms such appointment. It appears that the fate of that judicial organ is bossily dictated by these two other organs. Although the members of the National Judicial Council are judges who ordinarily belong to the judicial organ, the council itself as a body is an executive body and so belongs to the executive arm. The composition of the council comprises ex-officio members whose profession is affected by nomination, recommendation, appointment and confirmation of such appointments. That is why, although the council is executive in form, it is judicial in substance. The council works with a sister executive body, the Federal Judicial Service Commission (FJSC) or the State Judicial Service Commission (SJSC) as the case may be. The Commission advises the Council on recommendation of candidates for judicial appointment.

All the foregoing establishes the quantum of interest of the Council in this process. This is to show that if there is going to be an application for the order of mandamus, the National Judicial Council is a potential applicant, but not the candidates who are recommended. But the success of such application depends on how we construe the nature of that recommendation. What is the legal character of this recommendation? Is it advisory in which case the President or the Governor had he liberty to take or leave it? On the other hand, is it a constitutional condition to mandate the appointing authority to appoint? The answer to these questions still depend largely on the resolution of the main issue, to wit, whether the sections empowering the executive to appoint judicial officers create a duty or a power.

Construing the word “shall” as used in the section we are tempted to say that the sections create a duty but a closer perusal may not suggest that the sections do. The sections are couched in a passive sentence:

         “The appointment…shall be made by the president…”

The proper interpretation should be: for such appointment to be valid, it is to be made by the president or the governor (as the case may be). It appears that these sections create power and not duty. This is because the “recommendation” of the Council in those sections appears merely to be advisory. They are auxiliary to the exercise of the president’s or governor’s appointing power.

For those sections to create a duty, it appears more appropriate that they are drafted as follows:

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         “Upon recommendation of the National Judicial Council, the President shall appoint any such person so                        recommended to the office of Chief Justice of Nigeria…”

Here, we have no better way to interpret this than to admit that the appointment of such judicial officer by the executive is ceremonial, for the appointing authority has no discretion in the matter. He is in fact not appointing, for he is thereupon bound to appoint the person so recommended. It is the recommending authority that appoints de facto. And in an instance like this, it seems to me that an order of mandamus can lie against the refusing president or governor provided the council has effectively recommended.

But the present sections are not couched like that. They are couched in such a way as to say “no one can validly appoint a person to the office of… except the president/governor on recommendation (or advise) of the National Judicial Council…” It follows therefore that the president or governor (as the case may be) can reject any person recommended by the Council and can even decide not to appoint at all. However, it does not appear that he can unilaterally appoint without the requisite recommendation of a candidate by the Council.

In the final analysis, it is my finding that the provisions authorizing the President or the Governor to appoint judicial officers create power and not duty. And since mandamus does not lie against a public officer who has refused to exercise his power one way or the other, it follows that mandamus does not lie against the President or the Governor who has refused to appoint a judicial officer.

POSTSCRIPT:
I beg to add that the present state of the law is unsatisfactory. The situation where the President or the Governor has power to appoint or not to appoint a judge is totally unsatisfactory.
This is because for political reasons, the appointing authority may compromise integrity for self-serving aggrandizement. The removal of judges is satisfactory in the sense that the removal can only be effected upon recommendation: it is suggested that appointment should go beyond that in the sense that the President or the Governor should be under obligation to appoint when there is an obvious need to so do.

However, the National Judicial Council may be required to recommend more candidates than are actually required for the president to have a choice in appointing the candidates. Where the President’s or the Governor’s power is unfettered, he may rob the court of jurisdiction by refusing to appoint until perhaps the case in which he may be interested become statute-barred. We are no longer in military era where a Head of State frustrated a case on application by a party to the case for some Supreme Court judges who were members of the panel considering the case to disqualify themselves on the ground of likelihood of bias.

By Nurudeen Emmanuel Esq.

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