by Yibakuo David Amakiri
Brief Prologue
On the 19th of August 2013 the former Chief Judge of the High Court of Rivers State retired from service, leaving the position vacant. On the 20st of August 2013, the Governor of Rivers State appointed the President of the Customary Court of Appeal to office as Acting Chief Judge of the High Court of Rivers State. This generated public furore in an already heated polity in Rivers State. There are arguments and counter arguments over the legality or otherwise of the appointment.
Below is my opinion on the issue.
Firstly, what is the status of the High Court of a State vis-a-vis the Customary Court of Appeal of a State? The both courts are established by Section 6(5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See Section 6(5)(e) and (i) respectively. This means that both are courts on their own, with each having its own judicial officers. Both are on the same cadre of courts in the Nigeria’s judicial system. However they have distinct jurisdictions. The jurisdiction of the High Court is provided for under Section 272 of the  Constitution while that of the Customary Court of Appeal is provided for under Section 282 of the Constitution. These go to show that, though they are courts of the same cadre, they are two distinct courts. Since they are distinct, it means that a Judge of a High Court is not the same as a Judge of a Customary Court of Appeal.
Can a person then be a judge in the two courts at the same time? The answer is negative. There is nowhere in the constitution that such a scenario is contemplated. A person is either a High Court Judge OR a judge of a Customary Court of Appeal at a point in time.
With that in mind, let us look at another issue; whether a person who is currently serving as the President of Customary Court of Appeal can be appointed as acting Chief Judge of the High Court of a State? What is the position of the law on the appointment of a person as Acting Chief Judge of the High Court of a State? The constitutional provision on this issue is contained in Section 271(4) of the Constitution. For ease of reference the section is reproduced here;
“If the office of the Chief Judge of a state is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed and has resumed the functions of that office, or until a person holding the office has resumed those functions, the GOVERNOR OF A STATE SHALL APPOINT THE MOST SENIOR JUDGE OF THE HIGH COURT to resume those functions”.
Emphasis mine.
This section is clear. Where there is a vacancy in the office of the Chief Judge of a State, the Governor of the state should appoint the most senior judge of the “High Court” to act in place of the Chief Judge until a substantive Chief Judge is appointed.
It is not proper for one person to hold the position of the President of the Customary Court of Appeal and the Acting Chief Judge of a state. Some have said that since the High Court of a State is on the same cadre of courts as the Customary Court of Appeal, it does not matter whether the Acting C.J, comes from the High Court or the Customary Court of Appeal, that what matters is seniority. I agree that the legal profession is one wherein seniority is well respected. But I do not agree that a judge in the Customary Court of Appeal can be drafted in to man the affairs of the High Court just because the two courts are on the same cadre of courts. If the latter were to be the case, then what stops a Judge of the Federal High Court from being drafted in to man the highest position in the High Court of a State after all they are on equal pedestal of courts in Nigeria. 
The constitutional provision in Section 271(4) is clear and the courts have consistently held that where the provision of the constitution is clear and unambiguous, they should be given their literal and ordinary meaning. That is the literal rule of statutory interpretation. See the cases of Ojukwu v. Obasanjo (2004) All FWLR (PT. 222) 166, PDP v. INEC (1999) 11 NWLR (Pt. 626) 200 Action Congress of Nigeria v. INEC (2007) 12 NWLR (PT. 1048) 222. In the words of Onnoghen JSC in the case of PDP v. CPC (Suit No: SC. 272/2011); “…also settled is the principle that where the words of the constitution or statute are plain, clear and unambiguous, they must be given their natural ordinary meanings as there is nothing, in effect to be interpreted.”
The constitution was abundantly clear when it provided that in the event that the office of the Chief  Judge is vacant the Governor of a state shall APPOINT THE MOST SENIOR JUDGE OF THE HIGH COURT. That section should be literally interpreted. The constitution didn’t say the most senior judge in the state’s judiciary or the most senior judge from the state.
Some have argued that the appointed of an Acting CJ is matter within the exclusive discretion of the Governor. The above provision in Section 271 (4) is not admissive of any exercise of discretion by the Governor. It uses the mandatory word “shall” appoint the most senior judge. In the case of Tabik Investment Ltd v. Guaranty Trust Bank Plc. (2011) 4 CLRN 19 , the court held that the word ‘shall’ connotes mandatory discharge of a duty or obligation and when the word is used in respect of a provision of the law, that requirement must be met. See also Nonye v. Anyichie (2005) 2 NWLR (PT. 910) 623.  In this scenario, the requirement that the Acting CJ must be the most senior judge of the ‘High Court’ must be met.
 
Some have also argued that the President of the Customary Court of Appeal in question was merely on a secondment to the Customary Court of Appeal. The implication of this is that he can move back and forth between the High Court and the Customary Court of Appeal. Meaning he occupies a dual capacity. I bluntly dissociate myself from such argument. As President of CCA, he has been enjoying the privileges and benefits of the office of the President of CCA. He has been accorded all the royalties and respect not as a judge of the high court of the state but as the President of the CCA. Can he then be allowed to have his cake and eat it? I think not so. I submit that once a Judge has been taken from the High Court and made the President of the CCA, he is no longer a judge of the High Court. He cannot sit on the judicial stool and capacity of both courts at the same time.
Interestingly, in practice the judge appointed to be CJ is usually the most senior judge in the High Court of state. The National Judicial Council (NJC) has recommended a candidate for the substantive position of the CJ and rightly it did not recommend the President of the Customary Court of Appeal. This goes a lot to say what view of the NJC on the issue is.
Conclusion
Finally, let me conclude by making this point. In these times when specialty is required more than ever in the justice delivery system, as evidenced by the creation of special courts over certain areas, it is undesirably that judges of one court be taken back and forth to occupy positions in other courts. Where a judge of the High Court has been appointed into the National Industrial Court for example, he should remain so. Likewise where a judge of a high court of state is appointed into the Customary Court of Appeal, he should remain so. Such a judge cannot be appointed as Acting CJ of the state anymore.
 

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