By Balkis Tijani.
An Ilorin-based Non-Governmental Organization, Igbeayerere Kwara, has petitioned the Speaker, Kwara State House of Assembly, Rt. Hon. Yakubu Saliu Danladi over alleged unconstitutional elongation of tenure of office and retirement age for magistrates and legally qualified area court judges in the state.
In the petition, a copy of which was obtained by INSIDER, the group lamented that the unconstitutional extension which directed that the retirement age for Magistrate and Area Court Judges be extended from 35 years in service and 60 years of age to 65 years, has driven the institution backwards by denying promotion to deserving junior staff due to unavailability of space, poor service delivery and appointment of young and active qualified hands.
The group urged the Speaker, to as a matter of urgency declare the said elongation of tenure of office and retirement age for Magistrate and Area Court Judges unconstitutional.
Find texts of the petition below:
PETITION AGAINST THE UNCONSTITUTIONAL ELONGATION OF TENURE OF OFFICE AND RETIREMENT AGE FOR MAGISTRATE AND LEGALLY QUALIFIED AREA COURT JUDGES IN THE STATE
The above named organization is an Ilorin based Non-Governental Organization that came into existence in 2016 after a thorough appraisal of the Kwara polity and the sad realities of large scale official abuse and corruption.
In line with our mandate, we recently stumbled on verifiable documentary facts that alluded to the unconstitutional and illegal elongation of retirement age of magistrates and Area Court Judges, according to correspondences between the Head of Service Office and the Kwara State Government in 2017 and 2018.
The head of Service’s memo/letter dated 6th December, 2017 with reference number HS/5/3/Vol. T2/508 and the second memo/letter dated 4th January, 2018 on the above subject matter which unconstitutionally extended the tenure of office and retirement age for Magistrate and Area Court judges in Kwara State refers.
We wish to bring to the notice of the Honourable Speaker Kwara State House of Assembly (the 9th Assembly) the relevant agencies and the entire concerns Kwarans, that on the strength of the above, two (2) memos/letters that the former administration headed by Governor Abdulfatai Ahmed unconstitutionally extended the tenure of office and retirement age of some Magistrates and Area Court Judges in Kwara State. Copies of the said memos/letters are attached.
It is our firm contention that in line with the constitutional provisions especially Section 291 Subsection (1) (2) and (3) (a) relied upon was in error and to that extend the last administration acted in error/goofed to have unconstitutionally elongated the retirement age of the officers, as explained hereunder as follows;
The first issue that presents itself before us bothers on who a judicial officer is. The answer to this question is fundamental as it is the bedrock for the answer(s) we seek for.
A judicial officer is defined as holder of the office of Chief Justice of Nigeria, or a Justice of Supreme Court, President or Justice of Court of Appeal, a Judge of the Federal High Court or High Court of the Federal Capital Territory, Grand Kadi or Kadi of the Sharia Court of Appeal of the Federal Capital Territory or of a State, President or a Judge of the Customary Court of Appeal of the Federal Capital Territory or of a State. It is important to note that this definition does not cover Magistrates and Area Court Judges.
The answer is not for fetched and this is because these Courts were not established by the Constitution but are a creation of the National or House of Assembly and Area Courts Edict, 1967 respectively. By virtue of the powers conferred by Section 4(a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), Magistrates Courts were created. The Section states thus:
Nothing in the foregoing provisions of this section shall be construed as precluding-
The National Assembly or any House of Assembly from establishing Courts, other than those to which this section relates, with subordinate jurisdiction to that of a High Court;
The National Assembly or any House of Assembly, which does not require it, from abolishing any Court which it has the power to establish or which it has brought into being.
This Section makes clear, the power the National Assembly or any House of Assembly has to create additional Courts. The Magistrates Court is an offshoot of this power granted by virtue of this Section. On the other hand, Area Courts were created under Area Court Edict, 1967. Section 3(1) empowers the Chief Judge by a warrant to establish Area Courts. The Section states thus:
3(1) By warrant under his hand, the Chief Judge may establish such area courts as he shall think fit.
Following closely, it is important to state expressly the provisions of Section 6 (1) (2) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The section reads thus:
The Judicial powers of the Federation shall be vested in the Courts to which this Section relates, being Courts established for the Federation.
The Judicial powers of a state shall be vested in the Courts to which this section relates, being Courts established subject as provided by this Constitution, for a state.
The Courts to which this section relates, established by this Constitution for the Federation and for the States, specified in subsection 5(a) to (i) of this section shall be the only Superior Courts of record in Nigeria; and save as otherwise provided by the National Assembly or by the House of Assembly of a State, each Court shall have all powers of a Superior Court of record.
It therefore becomes imperative to state categorically that Section 291 (1) (2) (3) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) does not cover Magistrate and Area Court Judges. Sub section 1 specifically mentioned the retirement age for judicial officer appointed to the Supreme Court and Court of Appeal. Subsection (2) on the either hand expressly stated, … “other Court … and by definition of judicial officer as stated above”, other Court of the Federal Capital Territory, Grand Kadi of the Sharia Court of Appeal of the Federal Capital Territory or a State, President or a judge of the Customary Court of Appeal of the Federal Capital Territory or of a State. One very vital distinction is that while Judicial Officers cannot go back into the active practice of law, Magistrates and Area Court Judges can do so.
Furthermore, a careful perusal of the Kwara State Judicial Service Commission Regulations, 1980 reveals that there is no provision that empowers the commission to either establish these Courts nor is there any section that empowers them to determine, increase or reduce the retirement age for Magistrates and Area Court Judges.
To buttress our arguments further, we refer you to Section 292 (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It categorically and expressly states thus;
“Any person who has held office as a judicial officer shall not on ceasing to be a judicial officer for any reason whatsoever thereafter appear or act as a legal practitioner before any Court of Law or tribunal in Nigeria…”
A person who has held office as a judicial officer on ceasing to be one is barred for any reason whatsoever from either appearing or acting as a legal practitioner before any Court of law or tribunal both in Kwara State or any State at all in Nigeria. Such judicial officer can only appear personally for him in any matter for or against himself personally. At best, such judicial officer can only act as a solicitor or as a consultant.
The twist in the tale is that the reverse is the case for Magistrates and Area Court Judges in Nigeria. A retired Magistrate or Area Court Judge are constitutionally permitted to go back to active practice of law if he so wishes; such is not barred by or under any law from so doing in Nigeria, since they are not Judicial officers.
It therefore becomes imperative at this juncture to state that judges of superior Courts of record are those to be referred to as judicial officers.
Another point to be considered that make the entire elongation of tenure of office and the retirement age of the officers in human is the fact that Kwara State Civil Service Commission in conjunction with the Kwara State Judicial Service Commission recently employed so many Magistrates and Area Court judges which increase the numbers of Magistrates alone to over 100, excluding the Area Court Judges. So many of them without court room to sit and conduct cases.
The Honourable Speaker Sir, the said elongation of tenure of office and retirement age of the officers will unjustifiably stagnated over one hundred Magistrates excluding the Area Court judges appointed in the state.
On the whole, it is our submission that Magistrate and Area Court Judges are excluded within the meaning of the term judicial officer. Section 291 (1) (2) (3) (a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is therefore not apposite for Magistrates and Area Court Judges. If not apposite to these Courts, then the directive that the retirement age for Magistrate and Area Court Judges be extended from 35 years in service and 60 years of age to 65 years therefore defeated.
The draconian and unconstitutional circular changed the two to a straight 65years of age as the retirement age, neglecting the years of service. Many of those who ought to have retired falls within the grade level 16 and 17 of Directors and even a High Court Judge.
This development has really set back the institution by denying promotion to deserving junior staffs due to unavailability of space, Poor service delivery and appointments of young and active qualified hands.
Closing related to these is the avoidable wastage of scarce government resources on servicing the plethora of the aforementioned affected officers, which ironically isn’t commensurate with supposed services being rendered by officers who should have retired.
OUR PRAYERS/REQUESTS;
In view of the unconstitutional elongation of tenure of office and retirement age for Magistrate and Area Court Judges explained above and it consequences with the aim of having a better judiciary we urge the Honourable Speaker, Kwara State House of Assembly, all the agencies concern to consider and aceed to the following prayers/request.
The Honourable Speaker, Kwara State House of Assembly should direct it committee on judiciary to investigate the circumstance that led to the elongation of service and retirement age which failed to follow the laid down procedures.
To as a matter of urgency declare the said elongation of tenure of office and retirement age for Magistrate and Area Court Judges as unconstitutional.
The Honourable Speaker, Kwara State House of Assembly should direct the Executive Governor of Kwara State to as a matter of urgency cancelled the unconstitutional elongation, cancelled the memo/letter of Head of Service dated 6th December, 207 and 4th January, 2018 and revert to the status quo ante.
Give a directive to the Kwara State Judicial Service Commission via the State Government instrument to convey an emergency meeting and reconsidered and reverse the so call elongation of service and retirement age of Magistrates and Area Court judges.
The Honourable Speaker, Kwara State House of Assembly should direct the relevant agency that in the future they should ensure that all relevant service books and laws are consulted before such act are embarked upon.
We wish to place on record as part of the prayer that the Head of Service of Kwara State and the judiciary should apologize to the already over populated Magistrates and Area Court Judges that manage to survive and carry out their official duties under a hard conditions, as a result of the unconstitutional elongation of service. The apology should be extended to the general public and litigants who acted under the erroneous believe that the officers affected are occupying those positions lawfully.
Thank you.
It is hoped this petition will be given swift treatment as the wealthy allegations against the most respected arm of government which is the hope of the common man must be detailedly and holistically checked to restore trust, hope and confidence of all and sundry.
Signed
Com. Mujahid Usman.
Director, Investigation and Petition
Com. Nifemi Jesutofunmi.
Director, Public Relations
Com. Ajiboro Adebara Esq
Secretary.
CC:
The Executive Governor of Kwara State,
Government House,
Ilorin, Kwara State.
The Secretary to the State Government,
Governor’s Office,
Ilorin, Kwara State.
The Attorney-General and Honourable Commissioner for Justice,
Ministry of Justice,
Ilorin, Kwara State.
The Clerk/Permanent Secretary,
Kwara State House of Assembly,
Asa-Dam Road,
Ilorin, Kwara State.
The Honourable Commissioner,
Ministry of Finance,
Ilorin, Kwara State.
The auditor General,
Office of Auditor-General,
Ilorin, Kwara State.
The Chief Registrar,
The Judiciary,
Ilorin, Kwara State.
The Permanent Secretary,
Government House,
Ilorin, Kwara State.
The Principal Private Secretary,
Deputy Governor’s Office,
Ilorin, Kwara State.
The Chief Registrar,
Sharia Court of Appeal,
Ilorin, Kwara State.