Lagos lawyer, Mr. Femi Falana (SAN), and a human rights group, Legal Defence and Assistance Project (LEDAP), Tuesday criticised the decision of the Chief Justice of Nigeria (CJN), Justice Aloma Mukthar, not to swear in Justice Ifeoma Jumbo-Ofo who was recently elevated to the Court of Appeal.
They both called on the CJN to swear in Justice Jombo-Ofo without any further delay in the interest of justice and fair play.
Justice Mukthar on Monday had refused to swear in Justice Jombo-Ofo because of a petition over her state of origin.
Although, she is from Anambra State by birth, her husband is from Abia State and Justice Jombo-Ofo who had been in the Abia State judiciary for the last 14 years, was nominated to fill Abia slot in the Court of Appeal.
However, Falana and the rights group faulted Justice Mukthar's last-minute decision not to swear in Justice Jombo-Ofo despite the intervention of Abia State Governor, Chief Theodore Orji, who confirmed that the state had nominated her.
Falana said: "In exercise of his powers under Section 238 (2) of the 1999 Constitution, President (Goodluck) Jonathan recently appointed 12 high court judges, including the Honourable Justice Ifeoma Jombo-Ofo as justices of the Court of Appeal.
"The appointment was sequel to the recommendation of the National Judicial Council presided over by the Honourable Chief Justice of Nigeria.
"As soon as the appointment was made by the President, the former high court judges became justices of the Court of Appeal in line with the Supreme Court decision of Ogbuyiga v. Okudo (1979) 1 All NLR.
"Having not been removed as a justice of the Court of Appeal by the appointing authority, the refusal by the Chief Honourable Justice to administer the oath of office on the Honourable Justice Ifeoma Jumbo-Ofo cannot be justified in law."
He said since the appointment of Justice Jombo-Ofo had not been validly set aside, she should not have been subjected to any embarrassment because of a belated petition that sought to challenge her appointment on the grounds that she was not an indigene of Abia State.
"In other words, the petition ought to have been discountenanced as it violates Section 42 of the Constitution, which has prohibited discrimination arising from circumstances of birth or sex," he added.
He cited the Appeal Court judgment of Augustine Mojekwu v. Caroline Mojekwu (1997) 7 NWLR (PT 512) 283, where Tobi JCA (as he then was) held inter alia: "All human beings - male and female - are born into a free world and are expected to participate freely, without any inhibition on the grounds of sex, and that is constitutional.
"Any form of societal discrimination on the grounds of sex, apart from being unconstitutional, is antithesis to a society built on the tenets of democracy which we have freely chosen as a people."
LEDAP, in a statement by its Executive Director, Chino Obiagwu, also condemned Justice Mukthar's refusal to swear in Justice Jombo-Ofor because she was nominated from her husband's state rather than from her state of birth.
LEDAP said it was concerned that the decision was arbitrary and unfair, and inconsistent with previous instances in which some female justices had been appointed, promoted or elevated to slots from their states of marriage rather than states of birth.
LEDAP said it was worried that the practice of denying married women judicial appointments because of their state of marriage negated the principle of fairness and would be detrimental to women in the judiciary.
It said: "It is contrary to the entire values of marriage and of the Nigerian society. When a woman marries, she adopts her husband's family name and for all intent and purpose, has changed her place of origin to her new home. At the same time, she has lost all entitlements in her place of birth.
"Now to deny women in the judicial services or in any sector whatsoever benefits she is entitled to from her place of marriage is completely unjust and discriminatory."
It called on the National Judicial Council (NJC) to take steps to review such unfair practices in the judiciary and to ensure that policies and practices are consistent and conform to standards and values of the society.
LEDAP called on Justice Mukthar to swear in Justice Jombo-Ofor without delay, and to initiate efforts to address similar discriminatory and unfair practices against women in the judiciary across the country, including the lower courts.
It said: "As the first female CJN, history beckons on her to influence improvements in policies and practices that impact on the treatment of women in the judiciary, including at the bar.
"LEDAP will undertake to engage with the NJC and CJN in the coming days to undertake a review of unfair practices against women in the judiciary and will work with the authorities to improve the situation and reduce vulnerability of women."