Extent of Statutory Involvement of Incumbent CJN in the Process to Appoint Mr. Olukayode Ariwoola (Jnr) a Judge of the FHC

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By Sylvester Udemezue

A breaking news report on 14 July 2023 in Nigeria: “NJC RECOMMENDS INCUMBENT CJN’S SON, OLUKAYODE ARIWOOLA, JNR FOR APPOINTMENT AS FHC JUDGE”. “According to information gathered by TheNigeriaLawyer, before his appointment, Ariwoola Jnr was the Principal Partner of OLUKAYODE ARIWOOLA & CO, a law firm based in Abuja.. [14 July 2023; TheNigeriaLawyer].

  • His Lordship, the Hon. Justice OLUKAYODE ARIWOOLA is the incumbent Chief Justice of the Federal Republic of Nigeria; was sworn in on 12 October 2022.
  • Hon Justice KAYODE ARIWOOLA as the incumbent Chief Justice of the Federal Republic of Nigeria (CJN) is the Chairman of the Federal Judicial Service Commission (FJSC). Section 12(A) Of Item E In Part I Of The 3rd Schedule to The Constitution Of The Federal Republic Of Nigeria, 1999 provides that “The Federal Judicial Service Commission shall comprise the following members – (a) the Chief Justice or Nigeria who shall be the Chairman”. Section 13(A) Of Item E In Part I Of The 3rd Schedule to The Constitution of The Federal Republic of Nigeria, 1999 provides that “The [Federal Judicial Service] Commission shall have power to advise the National Judicial Council in nominating persons for appointment, as respects appointments to the office of (vi) a judge of the Federal High Court,”
  • Hon Justice OLUKAYODE ARIWOOLA as the incumbent Chief Justice of the Federal Republic of Nigeria, is the Chairman of the National Judicial Council (NJC). Section 20(A) Of Item I In Part I Of The 3rd Schedule provides that “The National Judicial Council shall comprise the following members – (a) the Chief Justice of Nigeria who shall be the Chairman”
  • Mr Olukayode Ariwoola, Jnr is a biological son of my Lord, Hon Justice Olukayode ARIWOOLA, CJN.
  • The National Judicial Council (NJC), headed by CJN OLUKAYODE ARIWOOLA, has just recommended Mr. Olukayode Ariwoola, Jnr for appointment as a Judge of the Federal High Court of Nigeria. See: “NJC Recommends Incumbent CJN’s Son, Olukayode Ariwoola, Jnr For Appointment As FHC Judge” [14 June 2023; TheNigeriaLawyer]. Section 21(A)(I) Of Item I In Part I Of The 3rd Schedule provides that “The National Judicial Council shall have power to -(a) recommend to the President from among the list of persons submitted to it by – (i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court”
  • It was the Federal Judicial Service Commission (FJSC) (headed by CJN OLUKAYODE ARIWOOLA) that had, by way of a public notice, called for expression of interest by suitable candidates for appointment as Federal High Court judges — See: RULE 3(1)(a)(i) of the REVISED NATIONAL JUDICIAL COUNCIL GUIDELINES & PROCEDURAL RULES.
  • It was CJN Olukayode Ariwoola (unless he recused himself) as the Chairman of the NJC who had determined the number of judges of the Federal High Court to be appointed this time. See: Rule 2(1) of the Revised National Judicial Council Guidelines & Procedural Rules which provides that “Whenever the Head of a Federal Court proposes to embark on the process for appointment of candidates or a candidate to the office of Judicial Officer of a Federal Court of which he/she is the head, notice shall be given to the Chief Justice/Chairman of the Federal Judicial Service Commission stating the number of Judicial Officers intended to be proposed for appointment. The said Chairman must forward a copy of the Notice and the Governor`s response, to the NJC. Upon receipt of the Notice from the State JSC, the Secretary of the NJC shall advise the CJN/Chairman of the NJC, on the number of judges than can be appointed, having regard to the budgetary provision of the NJC for the year. The CJN/Chairman of the NJC shall consider the NJC Secretary’s advice and by a notice in writing (addressed to the Chairman of the State JSC) direct (and this direction/decision is final) that the exercise (a) may proceed or (b) should not proceed or (c) may proceed with reduction in the number of judges proposed to be appointed”.
  • It was My Lord, the Hon. Justice Olukayode ARIWOOLA CJN in his capacity as the Chairman of the FJSC (unless he recused himself), who had shortlisted his own son, Mr. Olukayode Ariwoola, Jnr, for comments preparatory for recommendation for appointment as a judge of the Federal High Court. “Soon after the closing date for the receipt of applications and or nominations, the Chairman of the Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits consisting of not less than twice the number of Judicial Officers intended to be appointed at the particular time and circulate the provisional shortlist together with a request for comments on the suitability or otherwise of any of the short listed candidates” See: Rule 4(4) Revised National Judicial Council Guidelines & Procedural Rules
  • Note also that my Lord, CJN Olukayode ARIWOOLA (unless he recused himself) as “The Chairman of the [Federal] Judicial Service Commission…shall place the provisional shortlist before the Judicial Service Commission/Committee for approval and upon such approval, with or without modification; the provisional shortlist shall become the final list” SEE: Rule 4(5) Revised National Judicial Council Guidelines & Procedural Rules. However, “In carrying out the provisional short listing exercise, the Chairman of the [Federal] Judicial Service Commission…shall take into consideration as much as possible, (i) professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of 6 contested cases in the last”. See: (Rule 4(6) Revised National Judicial Council Guidelines & Procedural Rules. See also Rule 4(7)).
  • The Hon. CJN OLUKAYODE ARIWOOLA as the Chairman of the Federal Judicial Service Commission (unless he recused himself) then had a duty to forward or direct the Secretary of the Federal Judicial Service Commission to forward to every shortlisted candidate “NJC Form ‘A’, which shall be completed and returned to the Chairman (CJN OLUKAYODE ARIWOOLA) by the candidate, together with all necessary attachments specified”. (Rule 4(1))
  • “The Chairman [CJN Olukayode ARIWOOLA, unless he recused himself] shall then table before the Judicial Service Commission/Committee for its consideration a memorandum on each of the short-listed candidates”, [see Rule 4(2)] although _”The Judicial Service Commission [headed by CJN OLUKAYODE ARIWOOLA, unless he recused himself] may make such further enquiries about the candidate from reputable sources as to the suitability of the candidate as it deems fit”. (see Rule 4(3); see also Rule 4(4)].
  • By virtue of Rule 4(4), _”The decision of the [Federal] Judicial Service Commission [headed by CJN OLUKAYODE ARIWOOLA] in respect of nomination and advice for appointment of a Judicial Officer shall be authenticated by the Minutes of the [Federal Judicial Service] Commission Meeting, duly adopted and signed by the Chairman [CJN OLUKAYODE ARIWOOLA] and Secretary of the [Federal Judicial Service] Commission.
  • Upon compliance with Rules 1-4 of the Guidelines, “the Chairman of the [Federal] Judicial Service Commission shall advise, or as the case may be, recommend to, the National Judicial Council by a memorandum… ” [See Rule 5(1)]. By Rule 5(2), “The memorandum shall be addressed to the Chief Justice/Chairman of the National Judicial Council or Secretary and delivered to the Headquarters of the Council in Abuja”.
  • NOTE THE PRACTICAL IMPLICATIONS OF THE PROVISIONS OF RULES 5(1) &(2) OF THE RULES (unless the CJN recused himself): CJN Olukayode Ariwoola As the Chairman of the FJSC (unless he recused himself) signed the Memorandum submitting the name of his son, Mr Olukayode Ariwoola, Jnr to himself the Hon CJN Olukayode Ariwoola as the Chairman of the NJC, for recommendation to the President of the FRN for appointment as a judge of the Federal High Court.
  • The National Judicial Council (NJC) headed by CJN OLUKAYODE ARIWOOLA (unless he recused himself) then considered and conducted interviews for Mr Olukayode ARIWOOLA, Jnr and other candidates whose names were submitted to it. It was after this process (see Rules 5(5) and Rule 6) that the NJC headed by CJN OLUKAYODE ARIWOOLA then recommended Mr Olukayode ARIWOOLA, Jnr to Mr President Asiwaju Bola Ahmed Tinubu, for appointment as a judge of the Federal High Court of Nigeria. By section 21(a)(i) of Item I in Part 1 of the 3rd Schedule to the Constitution, “The National Judicial Council shall have power to – (a) recommend to the President from among the list of persons submitted to it by – (i) the Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the Justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court”. I recommend the following papers for further reading:
  • (🅰️) Sylvester C. Udemezue and T. Hameed, “Circumscribing Powers of Stakeholders as a Panacea to Recurring Tension in the Process of Appointing Chief Judges for States in Nigeria” (2022) 5 (III), Redeemer’s University Law Journal (Redeemer’s University) 84. <https://www.researchgate.net/publication/370225303_Circumscribing_Powers_of_Stakeholders_as_a_Panacea_to_Recurring_Tension_in_the_Process_of_Appointing_Chief_Judges_for_States_in_Nigeria> or <https://ssrn.com/abstract=3889087> or <http://dx.doi.org/10.2139/ssrn.3889087>]
  • (🅱️). Sylvester C. Udemezue and Vivien C. Anukanti, “The Convention-Constitution Standoff: Resolving the Most-Senior-Judge Conundrum in Appointment of Substantive Chief Judges for States in Nigeria” (2021) 3, Calabar Journal Of Public And International Law, (University Of Calabar) 237 <https://ssrn.com/abstract=3873567> or http://dx.doi.org/10.2139/ssrn.3873567
  • As things stand as of today, 16 July 2023, the next stage is for Mr President Asiwaju Bola Ahmed Tinubu to exercise his powers under Section 250(2) or the Constitution of the Federal Republic of Nigeria, 1999: “The appointment of a person to the office of a Judge of the Federal High Court shall be made by the President on the recommendation of the National Judicial Council”.
  • Meanwhile, note:
  • The “Judicial Oath ” contained in the 7th Schedule to the Constitution provides in part: “that I will abide by the Code of Conduct contained in the Fifth Schedule to the Constitution of the Federal Republic of Nigeria; that I will not allow my personal interest to influence my official conduct or my official decisions; that I will preserve, protect and defend the Constitution of the Federal Republic of Nigeria. So help me God”. See: “Buhari Swears In Justice Ariwoola As CJN” [12 October 2022; Channels TV]. Justice Ariwoola Olukayode is sworn in as the Chief Justice Of Nigeria at the Presidential Villa on October 12, 2022.
  • REVISED CODE OF CONDUCT FOR JUDICIAL OFFICERS OF THE FEDERAL REPUBLIC OF NIGERIA:

(A). Preamble: “It is the duty of every Judicial Officer to actively participate in establishing, maintaining, enforcing, and himself observing a high standard of conduct that will ensure and preserve transparently, the integrity and respect for the independence of the Judiciary…. The Preamble to this code shall be construed as an integral part of the Code and its provisions shall be as enforceable as the provision of the specific rules in the Code.”

(B). Rule 1.2 and 1.3: “Judge shall avoid impropriety and the appearance of impropriety in all of the Judge’s activities both in his professional and private life.1.3 A Judicial Officer should…conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the Judiciary”

(C). Rule 2.10: “A Judge shall not participate in the determination of a case in which any member of the Judge’s family represents a litigant or is associated in any manner with the case”

(D). Rule 7.1 and 7.2: “A Judge shall inform himself or herself about his or her personal and fiduciary financial interests and shall make reasonable efforts to be informed about the financial interests of members of the Judge’s family in respect of matters for adjudication before him.7.2 If it appears in respect of a matter before him or her, that the Judge, or a member of the Judge’s family or other person in respect of which the Judge is in a fiduciary relationship, is likely to benefit financially, the Judge has no alternative but to withdraw from the case”

(E) JUDGE AND MEMBERS OF HIS FAMILY (RULES 8.1): “8.1 A Judge shall not allow the Judge’s family, social or other political relationships improperly to influence the Judge’s judicial conduct and judgment as a Judge”.

(F).DUTY TO AVOID BEING IMPROPERLY INFLUENCED (Rule 8.2): “The Judge’s family, friends, and social, civic and professional colleagues with whom he or she associates regularly, communicates on matters of mutual interest or concern, and shares trust and confidence, are in a position to improperly influence, or to appear to influence, the Judge in the performance of his or her judicial functions. They may seek to do so on their own account or as peddlers of influence to litigants and counsel. A Judge will need to take special care to ensure that his or her judicial conduct or judgment is not even subconsciously influenced by these relationships”.

(G). DUTY TO AVOID PURSUING SELF-INTEREST. (RULE 8.3) : “A Judge who takes advantage of the judicial office for personal gain or for gain by his or her relative or relation abuses power. A Judge must avoid all activity that suggests that his or her decisions are affected by self-interest or favoritism, since such abuse of power profoundly violates the public’s trust in the judiciary.8.4 A Judge shall not use or lend the prestige of the judicial office to advance the private interest of the Judge, a member of the Judge’s family or of anyone else, nor shall a Judge convey or permit others to convey the impression that anyone is in a special position improperly to influence the Judge in the performance of judicial duties

See: “REVISED CODE OF CONDUCT FOR JUDICIAL OFFICERS OF THE FEDERAL REPUBLIC OF NIGERIA” (<https://njc.gov.ng/code-of-conduct>)

SECTION 1 OF PART 1 OF THE 5TH SCHEDULE TO THE CONSTITUTION: “A public officer shall not put himself in a position where his personal interest conflicts with his duties and responsibilities”

  • Generally speaking, doing justice (reality) is one thing. Doing it in such a manner as to leave a clear reasonable impression that justice has been done (appearance) is a different, more important, question. If the procedure you have adopted in doing justice leaves reasonable bystanders with the impression, however minute, that justice has not been done, then there is a problem with your style and of course with your brand of justice. Judges should abstain from any action and behavior that could infringe upon the trust in their impartiality. Sometimes, our intentions don’t matter if people reasonably perceive us the wrong way. This is more pronounced especially with administration of justice. Such perceptions are formed from our actions, utterances and body language. Let’s forget whether or not such a judicial officer will in fact do justice, perhaps because he’s a man of integrity. This is not the important question! A few years ago, in Enugu State, the NJC removed a sitting CJ/JUDGE because, among other reasons, the CJ was found to have accepted (during the public launch of the CJ’s book) a donation of N10 million by a party to a case pending before his court. The fact he accepted such a gift knowing that the donor was a party to a case before him,left a reasonable, likelihood that he’d be biased. In such an instance, whether he’s in fact actually biased is of no moment. Perhaps the insight given by Lord Denning (MR) in R. v. Amber Valley DC, ex parte Jackson [1985] 1 WLR 298, [1984] 3 All ER 50, gives a clearer view of the determining factor: “The court looks at the impression which would be given to other people. Even if he [the judex] was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part…”, there’s a problem. This was upheld in several cases including Nigerian cases: see R. v. Bow Street Magistrate ex parte Pinochet (No. 2) [2000] 1 AC 119 , [1999] 1 All ER 577; R. v. Secretary of State ex parte Kirkstall [1996] 3 All ER 304; ZAMAN v. STATE (2015) LPELR-24595(CA);
  • Olve & Ors. vs. Enenwali & Ors. (1976) 1 NMLR; Obadara v The President, Ibadan West District Grade “B” Court (1964) 1 All NLR 336), among countless others. To use the words of Lord Hewart, the then Lord Chief Justice of England in the case of Rex v. Sussex Justices , [1924] 1 KB 256, “justice must not only be done, but must also be seen to be done”. It is in doing justice that the ordering of society is centered. This could be why George Washington once said that “administration of justice is the firmest pillar of government”. Members of the judiciary must be both cautious and cagey in their public actions and utterances, especially on such occasions as the CJN had found himself. In ZAMAN v. STATE (2015) LPELR-24595(CA), the court said: “Justice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: ‘the judge was biased.’…. As Lush, J., said in Serjeant vs. Dale (1877) 2 Q.B.D. 558, 567 ‘….One important object, at all events, is to clear away everything which might engender suspicion and distrust of tribunal, and so to promote the feeling of confidence in the administration of justice which is so essential to social order and security.’
  • The following observation made on a WhatsApp platform on 16 July 2023, by a former Attorney-General of Rivers State, Sir WORGU BOMS, may be looked at as apt/relevant: _”I think it is important we make clear the issue. In Law of bias, you do not need to prove bias. All the law and its practitioners are concerned, is that we avoid all its appearances and factors that may tend to promote it… When those factors are present- relationships, profit- percuniary or proprietary- etc, people who want to avoid unfair, even lying, accusations, steer clear…. It is a tricky issue and the person in authority, suffers it.I have this morning, been reading Prof Guilfoyle D, in the Melbourne Journal of International Law. In course of his discourse of the issue he was tackling, the learned Prof said this: “Judges should avoid being placed in a situation which might reasonably be perceived as giving rise any conflict of interest”…. Many persons we know, are capable of deciding even against their sons or daughters, even lovers, in matters of Justice. Yes. But the law says,.don’t bother. Just stay clear. And it makes sense because, if allowed that you preside and decide over your own son and daughter etc, when they lose, some will argue- and they may be right- that they ought to win but that the Judex just wanted to make the point that he is impartial”.
  • CRITICAL QUESTIONS ARISING:

(A). What if there’s evidence that my Lord, the Hon CJN OLUKAYODE ARIWOOLA had completely extricated/recused himself from all the processes aforesaid, which required the involvement or participation of his offices, and indeed had asked his deputy in the FJSC and his deputy in the NJC to act in his stead, on account of the involvement of his own son as a candidate/applicant?

(B). Would that not clear all doubts, especially if his son is seen to be eminently qualified for the appointment?

(C). Finally, it might also be cogent to ask these further questions: what if the son, Olukayode Ariwoola, Jnr, is actually qualified to be a Judge at this time, and had indeed of his own volition, applied for it, just like others candidates? Would it be fair if he’s denied the opportunity/appointment simply because of his father’s position as the CJN, as the FJSC Chairman and the NJC Chairman?

Please, we would appreciate your views on these. Send your opinion to therealistministry@gmail.com.

  • Meanwhile, congratulations to Mr Olukayode ARIWOOLA, Jnr on and his colleagues on their recommendation for appointment as judicial officers in Nigeria. May we use this opportunity to advise that when you finally get appointed as Judges, you all, each and all, should consider using the guidelines and suggestions contained in the Code for Judicial Effectiveness, proposed to by used by Udems if ever he becomes a judge anywhere. See: ‘Thirty (30) Things I Must Do To Make My Court Work Effectively, If I Were A Trial Judge In Nigeria” [04 May 2023; BarristerNG. <https://barristerng.com/thirty-30-things-i-must-do-to-make-my-court-work-effectively-if-i-were-a-trial-judge-in-nigeria/>]

We face reality!
God bless Nigeria 🇳🇬!
Amen🙏
Respectfully,
Sylvester Udemezue (Udems).
Convener,
The Realist Ministry of Justice (RMJ) Nigeria.
08109024556.
therealistministry@gmail.com
(16 July 2023)

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