Legality Of Appointments Of 29 Magistrates In Cross River State

By Femi Falana, SAN

On February 4, 2019, the Cross River State Government appointed
29 Magistrates. The appointments were subject to confirmation after
a 2-year probationary period. Upon accepting the appointments the
Magistrates were distributed to various courts in the State. In
discharge of their judicial duties the Magistrates have determined
many civil and criminal cases. In particular,  they have
convicted and jailed scores of people and remanded many awaiting
trial suspects in prison custody. To that extent, the Magistrates
have contributed to the maintenance of law and order in the entire
State.

Even though the 2-year probationary period ended last month the
State Government has continued to question the legal validity of
the appointments of the Magistrates. Hence, the Magistrates have
not been paid any emolument for over two years on the erroneous
grounds that their appointments were not authorized by the Governor
of the State. But as soon as it was pointed out that the power to
appoint the Magistrates is exclusively vested in the Judicial
Service Commission of the State the Government turned round to
allege that the appointments were irregular. But the alleged
irregularity was not blamed on the Magistrates but on a former
Chief Judge of the State who was alleged to have made the
appointments without the approval of the State Judicial Service
Commission at the material time.

However, it is interesting to note that the Commission has not
questioned the regularity of the appointments for the past 2 years.
Since the action of the State Government could not be justified
under the Public Service Rules and the Labour Act the Magistrates
recently embarked on industrial action and street protests in
Calabar, Cross River State.  Completely embarrassed by the
unorthodox development the immediate past Acting Chief Judge of the
State directed the Magistrates to proceed on indefinite leave
pending the time that the controversy surrounding their
appointments would be resolved.  It is hoped that the
authorities are not unaware that the removal of the Magistrates
from the public service over the alleged irregularity in their
appointments will lead to the annulment of hundreds of civil and
criminal cases decided by them with unimaginable dire consequences
for the administration of justice in the State.

Having regards to the facts and circumstances of this case it is
indisputable that the appointments of the Magistrates have been
ratified by the judicial authorities in the State. In other words,
by directing the Magistrate to man courts and handle cases for two
years which were heard and determined the authorities have
regularised the appointments by conduct. In Obafemi Awolowo
University v Dr. Kola Onabanjo (1991) 5 NWLR (Pt  193) 549 the
respondent was appointed as a lecturer by the appellant. It was
specifically made clear in the letter of appointment that the
respondent was on probation for 3 years subject to confirmation in
writing. The respondent was sacked after he had worked for 3 years
and 3 months.

The respondent filed a suit at the Oyo State High Court where he
contended that his appointment was illegally determined. In
opposing the suit the appellant contended that the appointment was
regularly terminated as it had not been confirmed by the Governing
Council of the University. In rejecting the contention of the
appellant the learned trial judge, Falade J. held that the
appointment had been confirmed by conduct and as such could not be
terminated without due process. Completely dissatisfied with the
judgment the appellant took the matter to the Court of Appeal. In
affirming the decision of the trial judge the Court of Appeal held
that..

Similarly, in the case of Dr. Wunmi Raji v Obafemi Awolowo
University (2014) 22 WRN 45 the appellant had his appointment
terminated 7 months after the 3-year probationary period of
service. Even though the Federal High Court (per Kuewumi J.)
dismissed the case on the ground that the termination of the
appointment of the appellant was legally justified the Court of
Appeal vehemently disagreed and set aside the purported
termination. In the leading judgment of the Court, Owoade J.C.A
held that “…as it was in the case of O.A.U v. Dr. Kola Onabanjo
(supra) the respondent in allowing the appellant to work with pay
long after the 3 year probationary period of employment has elapsed
is estopped from treating the appellant as if he was not a
confirmed officer”

The Court of Appeal quoted in extenso from the Supreme Court
decision in Chukwuma v Ifaloye where it was held that “…where one
by his words or conduct will fully cause another to believe the
existence of certain state of things and induces him to act on the
belief so as to alter his own previous position, the former is
precluded from asserting against the latter a different state of
things as existing at the same time Iga v. Amakiri (1976) 11 S.C.
1, Ude v. Nwara (1993) 2 NWLR (PT 278) 638; (1993) 2 SCNJ 57, Ude
v. Osuji (1990) 5 NWLR (PT 151) 488, (1998) 10 SCNJ 75, (1998) 13
NWLR (PT 580); 1, Nsirim v. Nsirim (2002) 12 WRN 1; (2002) 2 NSCC
362; (2002) 2 SCNJ 46; (2002) FWLR (PT 6) 433; (2002) 3 NWLR (PT
755) 697.”

Applying the above decisions to the instant case it is submitted
that the Judicial Service Commission has by conduct accepted the
Magistrates as public officers in the service of the Cross River
State Government. The Magistrates were given letters which set out
their conditions of service. Upon assumption of duties the
Magistrates were distributed to various courts. Since then they
have been performing handling cases assigned to them in the
respective courts presided over by them. In the circumstances, the
judicial authorities are deemed to have waived any irregularity in
the appointments of the Magistrates. Having served the State
Government meritoriously for over two years the Magistrates are
entitled to the immediate payment of their outstanding salaries and
allowances.

No doubt, the Attorney-General, Mr. Annang has appreciated the
legal dilemma faced by the State Government. Hence, he has assured
the Magistrates that he would  work together with the 
State Judicial Service Commission  to regularize all the
irregularities that existed while hoping that Governor Ayade would
exercise his usual deep humanity and give approval to regularise
their employment in “the same way he recently regularized the
employment of over 2,500 staff that were smuggled into the payroll
by improper means.”. With respect to the Attorney-General, the
Magistrates were not smuggled into the judicial service of the
State. Since the Magistrates have completed the 2-year probationary
period their appointments are deemed to have been confirmed by the
Judicial Service Commission.

CONCLUSION

In the light of the foregoing, we are of the opinion that the
case has to be considered in a contextual perspective and not only
from the point of view of the interest of the State. The interest
of the Magistrates who have worked for over 2 years  is of
paramount importance. To that extent the decision of the immediate
past Acting Chief Judge to put the appointments of the Magistrates
on hold is faulty in every material particular. More so,  that
the Commission has not  had cause to question  the
regularity of the appointments for the over 2 years. Assuming
without conceding that the appointments are illegal the Commission
is under a legally obligated to recognize the status  of the
Magistrates as pensionable staff in the public service of Cross
River State Government.

Finally, the appeal to the State Governor to pay the outstanding
emoluments and absorb them into the public service has, once again,
questioned the independence of the judiciary in Nigeria. Having
regards to the provision of section 123 of the Constitution which
has recognized the financial autonomy of the judiciary a State
Governor lacks the vires to control the payment of the salaries of
Magistrates and other officials in the judiciary.  We are
therefore compelled to call on the Judicial Service Commission to
recall the Magistrates from illegal suspension and pay them their
outstanding emoluments which have been withheld for over two years
by the State Government without any legal basis.

By Femi Falana, SAN

On February 4, 2019, the Cross River State Government appointed
29 Magistrates. The appointments were subject to confirmation after
a 2-year probationary period. Upon accepting the appointments the
Magistrates were distributed to various courts in the State. In
discharge of their judicial duties the Magistrates have determined
many civil and criminal cases. In particular,  they have
convicted and jailed scores of people and remanded many awaiting
trial suspects in prison custody. To that extent, the Magistrates
have contributed to the maintenance of law and order in the entire
State.

Even though the 2-year probationary period ended last month the
State Government has continued to question the legal validity of
the appointments of the Magistrates. Hence, the Magistrates have
not been paid any emolument for over two years on the erroneous
grounds that their appointments were not authorized by the Governor
of the State. But as soon as it was pointed out that the power to
appoint the Magistrates is exclusively vested in the Judicial
Service Commission of the State the Government turned round to
allege that the appointments were irregular. But the alleged
irregularity was not blamed on the Magistrates but on a former
Chief Judge of the State who was alleged to have made the
appointments without the approval of the State Judicial Service
Commission at the material time.

However, it is interesting to note that the Commission has not
questioned the regularity of the appointments for the past 2 years.
Since the action of the State Government could not be justified
under the Public Service Rules and the Labour Act the Magistrates
recently embarked on industrial action and street protests in
Calabar, Cross River State.  Completely embarrassed by the
unorthodox development the immediate past Acting Chief Judge of the
State directed the Magistrates to proceed on indefinite leave
pending the time that the controversy surrounding their
appointments would be resolved.  It is hoped that the
authorities are not unaware that the removal of the Magistrates
from the public service over the alleged irregularity in their
appointments will lead to the annulment of hundreds of civil and
criminal cases decided by them with unimaginable dire consequences
for the administration of justice in the State.

Having regards to the facts and circumstances of this case it is
indisputable that the appointments of the Magistrates have been
ratified by the judicial authorities in the State. In other words,
by directing the Magistrate to man courts and handle cases for two
years which were heard and determined the authorities have
regularised the appointments by conduct. In Obafemi Awolowo
University v Dr. Kola Onabanjo (1991) 5 NWLR (Pt  193) 549 the
respondent was appointed as a lecturer by the appellant. It was
specifically made clear in the letter of appointment that the
respondent was on probation for 3 years subject to confirmation in
writing. The respondent was sacked after he had worked for 3 years
and 3 months.

The respondent filed a suit at the Oyo State High Court where he
contended that his appointment was illegally determined. In
opposing the suit the appellant contended that the appointment was
regularly terminated as it had not been confirmed by the Governing
Council of the University. In rejecting the contention of the
appellant the learned trial judge, Falade J. held that the
appointment had been confirmed by conduct and as such could not be
terminated without due process. Completely dissatisfied with the
judgment the appellant took the matter to the Court of Appeal. In
affirming the decision of the trial judge the Court of Appeal held
that..

Similarly, in the case of Dr. Wunmi Raji v Obafemi Awolowo
University (2014) 22 WRN 45 the appellant had his appointment
terminated 7 months after the 3-year probationary period of
service. Even though the Federal High Court (per Kuewumi J.)
dismissed the case on the ground that the termination of the
appointment of the appellant was legally justified the Court of
Appeal vehemently disagreed and set aside the purported
termination. In the leading judgment of the Court, Owoade J.C.A
held that “…as it was in the case of O.A.U v. Dr. Kola Onabanjo
(supra) the respondent in allowing the appellant to work with pay
long after the 3 year probationary period of employment has elapsed
is estopped from treating the appellant as if he was not a
confirmed officer”

The Court of Appeal quoted in extenso from the Supreme Court
decision in Chukwuma v Ifaloye where it was held that “…where one
by his words or conduct will fully cause another to believe the
existence of certain state of things and induces him to act on the
belief so as to alter his own previous position, the former is
precluded from asserting against the latter a different state of
things as existing at the same time Iga v. Amakiri (1976) 11 S.C.
1, Ude v. Nwara (1993) 2 NWLR (PT 278) 638; (1993) 2 SCNJ 57, Ude
v. Osuji (1990) 5 NWLR (PT 151) 488, (1998) 10 SCNJ 75, (1998) 13
NWLR (PT 580); 1, Nsirim v. Nsirim (2002) 12 WRN 1; (2002) 2 NSCC
362; (2002) 2 SCNJ 46; (2002) FWLR (PT 6) 433; (2002) 3 NWLR (PT
755) 697.”

Applying the above decisions to the instant case it is submitted
that the Judicial Service Commission has by conduct accepted the
Magistrates as public officers in the service of the Cross River
State Government. The Magistrates were given letters which set out
their conditions of service. Upon assumption of duties the
Magistrates were distributed to various courts. Since then they
have been performing handling cases assigned to them in the
respective courts presided over by them. In the circumstances, the
judicial authorities are deemed to have waived any irregularity in
the appointments of the Magistrates. Having served the State
Government meritoriously for over two years the Magistrates are
entitled to the immediate payment of their outstanding salaries and
allowances.

No doubt, the Attorney-General, Mr. Annang has appreciated the
legal dilemma faced by the State Government. Hence, he has assured
the Magistrates that he would  work together with the 
State Judicial Service Commission  to regularize all the
irregularities that existed while hoping that Governor Ayade would
exercise his usual deep humanity and give approval to regularise
their employment in “the same way he recently regularized the
employment of over 2,500 staff that were smuggled into the payroll
by improper means.”. With respect to the Attorney-General, the
Magistrates were not smuggled into the judicial service of the
State. Since the Magistrates have completed the 2-year probationary
period their appointments are deemed to have been confirmed by the
Judicial Service Commission.

CONCLUSION

In the light of the foregoing, we are of the opinion that the
case has to be considered in a contextual perspective and not only
from the point of view of the interest of the State. The interest
of the Magistrates who have worked for over 2 years  is of
paramount importance. To that extent the decision of the immediate
past Acting Chief Judge to put the appointments of the Magistrates
on hold is faulty in every material particular. More so,  that
the Commission has not  had cause to question  the
regularity of the appointments for the over 2 years. Assuming
without conceding that the appointments are illegal the Commission
is under a legally obligated to recognize the status  of the
Magistrates as pensionable staff in the public service of Cross
River State Government.

Finally, the appeal to the State Governor to pay the outstanding
emoluments and absorb them into the public service has, once again,
questioned the independence of the judiciary in Nigeria. Having
regards to the provision of section 123 of the Constitution which
has recognized the financial autonomy of the judiciary a State
Governor lacks the vires to control the payment of the salaries of
Magistrates and other officials in the judiciary.  We are
therefore compelled to call on the Judicial Service Commission to
recall the Magistrates from illegal suspension and pay them their
outstanding emoluments which have been withheld for over two years
by the State Government without any legal basis.