By Bashiru Ibrahim
Today, 7th July, 2020, President Muhammadu Buhari sent a request to the Senate for confirmation of 11 Judges recommended by the National Judicial Council (NJC) for appointment as Judges of the High Court of the Federal Capital Territory, Abuja. The request was stated to be in accordance with section 256(2) of the 1999 Constitution of the Federal Republic of Nigeria, as amended.
We are however of the opinion that Section 256(2) never made any provision for the confirmation of the Senate for the appointment in question. For clarity, the Section provides thus:
“The appointment of a person to the office of a Judge of the High Court of the Federal Capital Territory, Abuja shall be made by the President on the recommendation of the National Judicial Council.”
What is crystal clear from the section is that the President is only required to wait for the recommendation of the NJC to activate and exercise his powers of appointment. To further subject the appointment to the Senate is a derogation and abdication of the powers of the President under the Constitution and a clear affront on the Constitution. All and sundry are bound by the Constitution and no one is allowed to abdicate any of its provisions. That is the hallmark of Section 1(1) of the Constitution which provides that “This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.” See also the decision of the penultimate Court of the Land in the case of TITILOYE V. O.S.B.I.R 4 NWLR (PT.1715)445 (CA) @ p.475 paras D-H per Danjuma JCA thus:
“The trial court, in my view, was in clear abdication of duty and jurisdiction where it declined hearing the case and purportedly transferred the case to the High Court of Ondo State for trial. The judicial powers vested in the courts, must not be abdicated; for that will amount to an impudent and cowardly violation of the Constitution; and an invitation to anarchy as a natural follow up to the non adherence to the Rule of Law…. I appreciate fully that the courts must not be hungry for jurisdiction. See Ezettah’s case (2008) but it must not abdicate its jurisdiction constitutionally endowed, as it has a bounden duty to uphold and to ensure its observance. This is the imperative command language of section 1(1) of Chapter 1 part 1 of the Constitution, FRN 1999 which provides as follows: 1(1) this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
The President was therefore, with respect, wrong to have sent the request to the Senate and the Senate was equally wrong to have accepted and even deliberated on the request. It was reported that the Minority Whip, Senator Philip Aduda, while relying on Order 43 of the Senate Standing Rules objected to the absence of a nominee from the FCT. This is one of the obvious consequences contemplated by Hon. Justice Danjuma, above as “an invitation to anarchy as a natural follow up to the non adherence to the Rule of Law” If the President had not abdicated his powers and the Senate exercised powers it doesn’t have, the deliberation whether FCT is represented or not would not have arisen. Such a deliberation should be within the powers of the NJC. Whether the deliberation of the Senate was based on Order 43 of the Senate Standing Rules or whatever Rules is of no moment. The Constitution has spoken and no one or any other Law or Rules can speak. We refer to the decision of the Supreme Court in the case of SARAKI v. FRN  LPELR-40013(SC) Per MUHAMMAD, J.S.C. (now CJN) @ p. 93, Paras. D-F thus:
“The time honoured principle of law is that wherever and whenever the Constitution speaks any provision of an Act/Statute, on the same subject matter, must remain silent.”
The acceptance and deliberations of the Senate are of no moment and go to no issue because it has purportedly exercised powers where it has none. From nothing nothing comes, you can’t put something on nothing and expect it to stand, ex nihilo nihil fit. See also the case of ADA v. HASHIMU & ORS (2017) LPELR-42510 @ Pp. 9-10, paras. A-A
Therefore, the President can go ahead and make the appointment without much ado. The appointment of the FCT High Court Judges has lingered for long. The Senate should preserve its deliberations and confirmation to other issues it has powers over.
However, for future purposes, it is important to note that the appointments into the judiciary requiring confirmation of the Senate are appointment of the Chief Justice of Nigeria and Justices of the Supreme Court and Heads of Federal Superior Courts of Record including the Chief Judge of the FCT. No confirmation is required for other Judges of the Superior Courts of Record whether at the Federal or State Level. At the State level, the confirmation of the House of Assembly is required for the Heads of the Superior Courts only.
Mr. Ibrahim, a private legal practitioner, writes from Kano