Agitations for elevation to Appeal Court trail judge’s retirement from High Court

Can a retired judge of the High Court be appointed into the appellate court by the President? This weighty question of law has been answered in the affirmative by no less a person than the President of the Nigerian Bar Association, Yakubu Maikyau.

Last Friday in Abuja at the launching of a book, In the Interest of Justice: Excellence in Judgment Writing, authored by the Hon. Justice Alaba Andrew Omolaye-Ajileye, who retired two days earlier as a judge of the Kogi State High Court, Maikyau said that a line must be drawn between appointment and promotion, adding that the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended) empowers the President to appoint a judicial officer, who has retired after attaining the mandatory age of 65 years, to the higher Bench where the retirement age is 70 years.

Section 238 of the Constitution of the Federal Republic of Nigeria states: (1) The appointment of a person to the office of President of the Court of appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the senate. (2) The appointment of a person to the office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council. (3) A person shall not be qualified to hold the office of a Justice of the Court of Appeal unless he is qualified to practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than twelve years”.

Citing this relevant section of the Constitution, the NBA President said it was not too late for the President to act to prevent the country from losing the wealth of knowledge and experience of Justice Omolaye-Ajileye, widely recognised as Nigeria’s leading authority on electronic evidence.

He argued that since the retirement age on the higher bench is 70 years, Omolaye-Ajileye, if so appointed, would have five more meritorious years of service to offer the country, especially at this critical period in the history of the country when elections are being transmitted electronically and adjudications on election matters in this novel field cannot but be expected.

Describing Omolaye-Ajileye as a cerebral and profound judge, Maikyau said the judicial pronouncements of the retired judge, if made on the higher bench, would advance the jurisprudence of Nigeria globally.

Kogi State governor, Alhaji Yahaya Bello, who was represented by his deputy, Edward David Onoja, described Omolaye-Ajileye as “a good man” judging “by this crowd of quality people who have turned out in support of him”.

Also describing himself as “a friend of the author”, the governor said Omolaye-Ajileye “is one of those jurists of whom you have no qualms whatsoever in classifying as professional, erudite, wise, upright (even incorruptible) and a fierce defender of the independence of the judicial arm of government.

“My Lord’s commitment to the loftier ethos of his profession was very evident at his valedictory court session where he walked the audience through a well-considered speech which, in my opinion, could even pass for a judgment or, at the very least, a timeless obiter dictum! In it, he x-rayed the process of appointing judicial officers in Nigeria and identified four main systemic evils embedded in it, to wit: One, that the entire process is shrouded in sinful secrecy and avoidable clandestineness. Two, that the objective recommendations of candidate jurists by peers knowledgeable about their professional expertise and even authorities which scrutinize them for offices which they have earned do not count.

“My Lord further said the third evil is that the process has become so marred by cronyism that who a candidate knows or does not know matters more to his chances. Fourthly and finally, that nepotism (especially where a person comes from and how he worships) tends to count more than what a candidate truly merits or deserves.

“I have gone into His Lordship’s speech in detail because I want to concur that it is nothing but the truth, while raising a lament that these systemic evils have permeated not just the judicial fabric but the entire textile of our national existence. One of the most grievous ills under the sun in Nigeria today is that good men and women who have served their nation faithfully and for long are routinely subverted to make way for less qualified and less committed opportunists who are better connected or have the accidental benefits of what they call the right tribe or religion”.

Bello underscored what he described as his “belief that a man should be judged by the content of his character and his personal accomplishments rather than by such parochial and shameful sentiments as where he comes from, what language he speaks or how he chooses to worship his Creator”.

Wishing the retired judge well in his future endeavours, the governor said that Kogi State remains proud of him and his sterling qualities and achievements.

Justice Omolaye-Ajileye officially retired from the Kogi State judiciary last Wednesday at a well-attended valedictory court session held at the state Judiciary headquarters in Lokoja and presided over by the state Chief Judge, Hon. Justice Josiah Joe Majebi.

Before and during the activities spanning one week to mark his retirement from the Bench, strident calls were made from many quarters, including by eminent legal luminaries, that the services of Justice Omolaye-Ajileye was retained by the nation’s judiciary with his being appointed to the higher Bench.

At the valedictory court session, a Senior Advocate of Nigeria, Mr Jibrin Samuel Okutepa, who spoke on behalf of the Body of Senior Advocates of Nigeria, lamented that  Justice Omolaye-Ajileye was leaving when his services were most required: “For me and many good Nigerians, the Nigerian judiciary, the legal profession and indeed the Nigerian nation are the greatest losers of the retirement of your Lordship. This is a case of a shining star and judicial colossus being allowed to go home substantially unused because the system we operate does not appreciate merit in most cases. We prefer to elevate the worst in place of the best. We prefer to lift those who know the well connected than those who know the law and are integrity driven. We prefer the lily-livered characters to those with strength of character.

“Honestly, while your Lordship is celebrating and we celebrate with you, the legal profession needs to weep for allowing this jurist of extraordinary strength of character to end his career on the high court bench. Why did the powers that be fail to support your Lordship’s aspiration to move to the Court of Appeal or even the Supreme Court? At least the remaining five years allowed by the Constitution for those on the Court of Appeal and the Supreme Court bench would have brought out additional rich jurisprudence from this judicial icon on any of these appellate courts. Need I say more? Welcome to Nigeria of absurdities where honesty, integrity, and truth are, in most cases, obstacles to your growth and development.

“I feel a sense of grief in me that your lordship is not allowed further opportunities on the appellate bench of either the Court of Appeal or the Supreme Court”, adding that whereas Justice Omolaye-Ajileye appeared to have been located in a local place “his lordship is not a local judge. His works of scholarship as an author has been acknowledged and quoted by the Court of Appeal”.

As if to testify, three universities at the book launch jostled to acquire the services of the eminent jurist in what can be described as one man’s loss is another’s gain. The universities offering Justice Omoloye-Ajileye a professorial chair include the Federal University, Lokoja (requesting him to help them start their Law Faculty), Baze University, Abuja and the University of Jos.

Dignitaries at the book launch included former NBA president, Asiwaju  Solomon Adegboyega Awomolo, who chaired the event; retired Justice of the Supreme Court, Justice Afolabi John Fabiyi; Chief Judge of the Federal High Court, Justice John Tsoho; Chief Judge of the FCT High Court, Justice Baba Yusuf; Justice Majebi;  a galaxy of other judges;  many distinguished SANs, professors and captains of industries.