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.

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.