Prominent lawyers, Prof. Itse Sagay (SAN), Mr. Femi Falana (SAN) and Mr. Alasa Ismaila, have faulted the directive of the National Judicial Council (NJC)asking a judge of a Lagos High Court in Ikeja, Justice Joseph Oyewole, to take a fresh oath if he intends to transfer his service from Lagos to Osun State.
The lawyers contend that there is no provision in the law that requires a judge seeking transfer to swear a fresh oath, insisting that the issue is the exclusive preserve of the State Judicial Service Commission. The legal practitioners stated this during separate interviews with LEADERSHIP yesterday.
The NJC had, at the end its two-day meeting in Abuja yesterday, reportedly okayed the transfer Oyewole and asked him to take a fresh oath. The development means that Oyewole will lose his seniority at the Bench, having been appointed a judge in 2001.
Sagay said, "The NJC cannot ask a judge to take a fresh oath as the issue of seniority rests squarely with the state Judicial Service Commission. A judge can only take oath of office once except such a judge is elevated to an appellate court."
On his part, Falana said, "The NJC has no power over transfer of judges as the issue belongs to the state. All the state is required is to inform the NJC. I challenge the NJC to point to any law to that effect.
"I also wish to remind the NJC that there is no precedent for this decision. For example, Justice Ligali Ayorinde did not take any fresh oath when he transferred his service from Plateau to Lagos State and never lost his seniority. "Justice Sikiru Adagun, who later became the CJ, did not take fresh oath when he transferred his service from Borno to Lagos State. No judge can take oath of office twice for the same office."
Ismaila also spoke in similar vein: "Ordinarily, such decision by NJC is not normal and it lacks precedence. You can't be made to lose seniority as a judge simply because you want to seek transfer from one state to another. Once a judge, you are always a judge. When Justice Constance Momoh transferred her service from Plateau to Edo State, nobody asked her to take fresh oath of office, nor was she made to lose seniority. And there are similar unlimited examples.
"But NJC should know that its jurisdiction has a limit under federalism. The jurisdiction of the CJN, for instance, covers the Supreme Court, unlike a chief justice of the federation that has power over all the courts at the federal and in the federating units which are the states.
The states judiciary service commission (SJSC) are the equivalents of the NJC in the states and they are responsible for all the judicial officers in their respective states as well as determining their seniority. NJC should even have known better that one does not need to take oath more than once on the same cadre."
Osun State government had sought the transfer of service of Oyewole (who hails from Ila-Oragun in Osun) from the Lagos State Judiciary where he is serving and the Chief Judge of Lagos State, Justice Ayotunde Phillips, later sent the request to the Chief Justice of Nigeria (CJN), Justice Aloma Mukhtar, for her necessary attention.
The CJN reportedly acknowledged the request and informed the Lagos CJ that the NJC's decision on Oyewole's transfer would be taken at its meeting on December 19, 2012.
The NJC was also said to have rejected the appointment of Justice Gloria Oladoke as the acting Chief Judge (CJ) of the state on the grounds that it had endorsed Justice Bola Ojo as the CJ.
But the state House of Assembly had rejected Ojo's nomination on the grounds of a pending suit and consequently okayed Justice Oladoke as the acting CJ for the state while Governor Rauf Aregbesola later swore in Justice Oladoke .
LEADERSHIP also observed that the latest decision of the NJC on Oyewole was similar to the request of the Body of Judges in Osun Judiciary in its petition dated August 22, 2012 and addressed to the CJN.