Court grants permission to sue Buhari over appointment of judges

A Federal High Court on Wednesday granted a legal practitioner, Olajimeji Felix Ekengba, permission to apply for order of mandamus seeking to compel President Muhammad Buhari to appoint all the 33 persons recommended to him by the National Judicial Council (NJC) as judges of High Court of Federal Capital Territory.

The order is to allow the applicant to commence proceeding to compel the President to appoint all the persons judges as recommended by the NJC.

The respondents in the suit are the President Muhammadu Buhari and the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami.

Justice Inyang Ekwo, in a ruling on the ex-parte application by Ekengba, held that granting leave to the plaintiff is a preliminary exercise of discretion in application of this nature and a prelude to taking a requisite step in the course of the applicant.

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“I will therefore accede,” the judge held.

Justice Ekwo said: “Consequently, the applicant is granted leave of this court to apply for a writ of madamus compelling the President and Commander in Chief of the Nigerian Armed Forces to perform his official duty as contained in section 256 (2) of the 1999 constitution (as amended) by appointing the 33 persons recommended to him for appointment into the office of judges of the High Court of the Federal Territory Abuja by the the National Judicial Council.”

Recall on September 23, Justice Ekwo in a judgement faulted the decision of the President Buhari forwarding names of only 11 out of 33 lawyers nominated for appointment as judges of the High Court of the Federal Capital Territory (FCT).

The President had on the recommendation of the NJC forwarded to the Senate for screening and confirmation in July, names of the 11 lawyers.

The already sworn-in judges are Abubakar Useni Musa, Edward Okpe, B. Abubakar, M. Francis, Jude Nwabueze, Josephine Enobi, Christopher Opeyemi, Mohammed Idris, Hassan Maryam Aliyu, Fashola Akeem Adebowale and Hamza Muazu.

The applicant in his averment stated that the President was wrong not to have appointed the 33 persons recommended to him by the NJC.

According to Ekengba, “after pain taking, thorough screening/interview in total compliance with the extant laws and rules for appointment of judges” Buhari ought to have appointed the 33 persons in accordance with Section 256 (2) of the constitution without recourse to the National Assembly or altering the list.

Ekengba insisted that over riding pubic interest in appointing the 33 persons as recommended as judges far out weighs any other consideration upon which the President may base his decision not to appoint the other recommended persons .

He further averred that the President does not have the discretion to refuse to carry out his constitutional duties, stressing that the “shall” in the extant law made it compulsory for the President to act upon the recommendation of the NJC.

Ekengba said that by the President’s conduct, he has refused to comply with the applicant’s request “and that the only remedy to me (applicant) is judicial review for order of declaration and madamus.”

Ekengba further averred that the refusal of President to comply with his request is unconditional, illegal and ultra virus which entitles him to seek judicial review.

He also stated that the second respondent (AGF), as the chief law officer of the federation is under obligation to advise the president to comply with the request, but according to Ekengba, he has failed to do.

However, agreeing with the plaintiff, Justice Ekwo granted him the leave to apply for order of mandamus.