Published On: Sun, Mar 26th, 2017

Why the proposed appointment of lawyers to  appellate bench can’t fly, by Olorogun Kenneth Gbagi

Supreme Court

I recall the late eminent Jurist, the  well-respected  Honourable  Justice Niki Tobi  JSC of blessed memory who was a professor of law before he was appointed as a High Court Judge and eventually rose to become a JSC.

The  Chief Justice of Nigeria  (CJN), Justice Walter Onnoghen and the President of Appeal Court, Justice Zainab Bulkachuwa ‘s decision to appoint senior lawyers directly to the Court of Appeal and the Supreme Court is causing uneasiness among Justices of the higher courts.

In the recent past, particularly since the advent of democratic rule, appointments into the two highest benches in Nigeria have by convention been restricted to serving judges from the lower courts.

Under the military, however, a couple of appointments to the Supreme Court were made directly from the bench, the first being Justice Teslim Elias, an academic who was appointed Chief Justice of Nigeria by Gen. Yakubu Gowon in 1972, having been Attorney-General of the Federation and Minister of Justice at various times since 1960.

Another lawyer so appointed was Justice Augustine Nnamani (SAN), who was nominated by Gen. Olusegun Obasanjo to the Supreme Court in 1979 from his position as the Attorney-General of the Federation and Minister of Justice.

He was at the Supreme Court for 11 years.

However, the CJN and the President of the Court of Appeal, are now leaning backwards to this old and rare selection process, sending notices to the Nigerian Bar Association (NBA) for the nomination of qualified lawyers to be appointed justices of the Supreme Court and the Court of Appeal.

Many justices of the higher courts, are however opposed to the new proposal and while choosing not to express their opposition publicly, have decided to block the idea by not recommending the selected lawyers to the National Judicial Council (NJC) for appointment into the two higher benches.

Under the extant Revised National Judicial Council Guidelines for the Appointment of Judicial Officers of All Superior Courts of Record in Nigeria, which came into force on November 3, 2014. Justices of the Supreme Court and the Court of Appeal are required to write an assessment for  whoever seeks appointment  into the higher  courts.

One of the justices who confided in THISDAY said he and his colleagues were determined not to nominate a lawyer and would also not comment on the suitability of any lawyer for the purpose of appointment into the higher courts.

However, the prerogative to nominate is not restricted to them alone, the NBA  can  also nominate.

But their opinions are mandatory. Without such opinions from judges, no lawyer will meet the requirements for appointment as a judge.

The source said Judges would rather  give their support to sitting Judges. When he came on board, Justice Onnoghen decided that for the first time, the Supreme Court will have a full complement of 21 Justices so that three courts can sit separately every day, a measure that will reduce drastically the backlog of cases now pending before the court.

At present, there are 17 Justices of the court.

However, Justice Sylvester Ngwuta, who is on trial for alleged corruption is not sitting.

So also is Justice Inyang Okoro whose house was raided by the operatives of the Department of State Services (DSS).

Although, he was arrested and later released, he has not been charged with any offence.

The Supreme Court is established by Section 230 of the 1999 Constitution. It states: “(1) there shall be a Supreme Court of Nigeria. “(2) The Supreme Court of Nigeria shall consist of: (a) the Chief Justice of Nigeria; and (b) such number of Justices of the Supreme Court, not exceeding twenty-one, as may be prescribed by an Act of the National Assembly.”

Furthermore, Rule 3 of the NJC Guidelines states: “In the case of appointment of Judicial Officers for Court of Appeal and Supreme Court of Nigeria, the President of the Court of Appeal/Chief Justice of Nigeria shall as the case may be, write to Heads of Courts, serving Justices of Court of Appeal/Supreme Court of Nigeria and President of the Nigerian Bar Association asking for nomination of suitable Judicial Officers/Legal Practitioners for appointment as Justices of the Court of Appeal/Supreme Court of Nigeria.”

However, rule 3(1) (b) of the guidelines add: “except a sitting judge supports a lawyer’s application for appointment as a judge, his application will fail.”

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Also Rule 2, which equally applies, provides: “Any person nominating a candidate must do so in writing and indicate clearly and in detail that he/she has sufficient personal and professional knowledge of the candidate’s requisite attributes for a reasonable period of time as would make him competent to make the nomination.

“He/she shall expressly certify that from his/her personal knowledge of the candidate, the candidate possesses the qualities set out in Rule 4 (4)(i)(a)-(b) of these Rules; and, where applicable the qualities set out in Rule 4(4)(i)(d) and/or (e).”

Under Rule 4, serving and retired justices are also requested to give their opinions on the suitability of persons seeking to be appointed a judicial  officer.  It is not clear whether  all  retired justices support the appointment of lawyers directly to Supreme Court and the Court of Appeal.

However, a former CJN, Justice Muhammadu Uwais, has openly voiced his opposition to the proposal.

ule 4 also states: “Soon after the closing date for the receipt of applications and or nominations, the Chairman of the Judicial Service Commission/Committee concerned shall make a provisional shortlist on the merits consisting of not less than twice the number of Judicial Officers intended to be appointed at the particular time and circulate the provisional shortlist together with a request for comments on the suitability or otherwise of any of the short listed candidates, as follows:

“(i) Among all serving and retired Judicial Officers of the Court to which an appointment of a Judicial Officer, other than the Head of a Court, is proposed to be made;

“(ii) Among all serving and retired Heads of the relevant State or Federal Court, including retired Chief Justices of Nigeria and retired Presidents of the Court of Appeal, in the case of appointment of a Head of Court.

SHOULD LAWYERS GO STRAIGHT TO SUPREME/APPEAL COURTS?

The Nigerian Bar Association (NBA) has nominated nine  (9)  lawyers, including six Senior Advocates of Nigeria (SANs), for appointment as Justices of the Supreme Court at the instance of  Chief Justice of Nigeria.

Also, the NBA has nominated twelve (12) lawyers for appointment as Justices of the Court of Appeal.  However, some lawyers have called for the suspension of the process, claiming that it can kill the morale of judges.

Others have hailed it, saying it will make the apex court vibrant. It is a rare occurrence  in the Judiciary.

The late Dr Taslim     Olawale Elias was appointed from the university, where he was a Senior Lecturer, as Chief Justice of Nigeria (CJN) in 1973. Six years later, the late Dr Augustine Nnamani joined the Supreme Court from being Attorney-General of the Federation and Minister of Justice during the Gen. Olusegun Obasanjo military regime.

CONSTITUTIONAL  REQUIREMENTS FOR LAWYERS APPOINTMENT;  ARGUMENTS FOR APPOINTING LAWYERS.

Section 231 (3) states: “a person shall not be qualified to hold the office of Chief Justice of Nigeria or of a Justice of the Supreme Court, unless he is qualified to  practice  as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”

Section 237 (3) states: “a person shall not be qualified to hold the office of Justice of Court of Appeal, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 12 years.”

Some observers see the nomination of some lawyers for appointment as Justices as a negation of the tradition of succession by seniority and one capable of causing latitude amongst senior members  of the court system.

Others see it as an attempt by Justice Onnoghen to reposition the Judiciary, having taken it over when its image has been battered, with the arrest of two serving justices and judges on allegation of corruption.

OPPOSING VIEWS  AGAINST THE APPOINTMENT:

Some of the prominent lawyers & SANs  are  like businessmen who will want to cover their own interest.  Apart from their questionable lifestyle, none of them is fit and proper for the discipline required for the coveted office of the Supreme Court Justice.

Some of these SANs have represented political parties in different suits and they must have lineage/connection to these political parties.

Some of them are huge financier of the parties. We should not allow such blind policy to ruin the judiciary.  They are all party members, therefore cannot dispense Justice.

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The working condition and emolument of judges should be improved so as to tackle corruption. For instance, a judge earns about N500,ooo.oo  in a month while a Legislator earns millions of  naira in a month.

The salaries of judges are not commensurate with the load of work they handle.

The retirement age of State High Court Judges should be increased from 65 years to 70 years because at the age of 65 years, Judges still have more to offer to the administration of justice. Since the retirement age of a university Professor is at 70 years, such should be applied  to State High Court judges too, given the enormous investment and training it has cost the nation.

In Australia retirement age is 65 years, USA 66 years and United Kingdom 65 years. It must be noted that, there is nowhere  in the world where lawyers were appointed from the Bar into the Supreme Court or the Court of Appeal bench.  Even if it exists in any country, it has no binding effect on Nigeria.

The appellate courts are manned by people with substantial and adequate  experience.  The whole concept of inviting lawyers to the Supreme Court or the Court of Appeal is an attempt to solve a problem by creating another problem.

I do not see this beyond the confusion Prof Sagay is bringing into government.  I have said earlier on that the fight against corruption cannot  be carried out in the way and manner the body appointed by the President  is going about its job.

One of the reasons for this recent agitation for direct appointment of practising lawyers to the Supreme Court is the public perception of corruption in the Judiciary,  even though the constitutional requirement for eligibility is 15  and 12  years post-call, utmost care must be exercised.

We must tread cautiously in the appointment of judicial officers, particularly as it affects direct appointment of practising lawyers to the Supreme Court.

I am aware of previous cases in Nigeria and even in England where Lord Jonathan Philip Chadwick Sumption was appointed Justice of the Supreme Court of the United Kingdom in 2012 from the practising bar rather than from prior service as a full time judicial officer.

But these are clearly exceptional cases and have been so described.  As rightly pointed out, if not well managed, it could kill the morale of Judges who have carved a career path for themselves as full time judicial officers beginning from the High Court with the hope of gradually moving up the ladder to the apex Court.

I recall  that recently, professors of law, such as Chuka Obiozor, and some  Ph.D.  holders, such as Nnamdi Dimgba, were appointed as judges of the Federal High Court.  These judges are hoping to build a career on the Bench and then you now have persons who may not be holding the same qualification as them being elevated straight to the Supreme Court from the  practicing  Bar.

I recall the late eminent Jurist, the  well-respected  Honourable  Justice Niki Tobi  JSC of blessed memory who was a professor of law before he was appointed as a High Court Judge and eventually rose to become a JSC.

Rather than appointing lawyers straight to the Supreme Court in order to cure some ills, appointments at the High Court level must be based on merit. What is in fact important is for us to make the procedure for appointment of judges as transparent as possible with merit being the key factor. 

A situation where appointments are made to favour cronies and on the basis of political affiliations is dangerous for the judiciary as an institution.  The Judiciary is an important and sacred institution which regulates all other institutions in our democracy and we must not allow politics in whatever guise to creep into the process of appointment of judicial officers. Therefore, I humbly submit that this appointment should be jettisoned. The NJC should sponsor a bill inputting the  NJC Guideline  into the Constitution to restrict future occurrence.

It  believes it can kill the morale of judges and justices of the Court of Appeal who had been working towards being elevated.  I don’t think it’s good for the system to bring somebody from the outside who has never been a judge, and then he’s sitting at the uppermost echelon of the judiciary, just like that.

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The problem of incompetence could be solved, not by a kneejerk reaction of bringing somebody from the outside, but to put a template by which justices are appraised.  It could be based on number of judgments. So if someone is junior to you in hierarchy surpasses you in terms of judgment output, ordinarily he should get it. When they do that, even the incompetent ones will sit up. The person you are bringing from outside who has not been tested on the job, are you sure of his output or quality?

To cure that evil of non-performance, it doesn’t necessarily mean you have to bring somebody from the outside.  Again is the effect it will have on morale of other justices. There are too many justices of the Court of Appeal eyeing the Supreme Court, where the slot is even limited to 21.

If somebody has been deemed good enough to be appointed a judge, then he should be deemed good enough to be elevated.  The only thing you should do if you don’t want to elevate him is to tell him to his face that he has not performed. Then you appoint someone that is less in rank. That is the way to go.

Pa Tunji Gomez  described the development as demeaning and unfair treatment of the Appeal Court Justices.  To him, it is wrong for lawyers who have not had any experience on the bench at lower levels to be appointed Justices at the apex level of the judicial system.

“This is unfair, disheartening and a slur on the efficiency of the Appeal Court,” he said.

He urged Justice Onnoghen to suspend the consideration of the lawyers so nominated until proper consultation of all stakeholders in the judicial sector is made.

He contended that the nomination of lawyers for the post of Supreme Court justices raises vital fundamental questions affecting the profession and the judiciary.

Gomez raised the following issues: “Whether the Court of Appeal Justices are not being condemned indirectly as unfit or unknowledgeable enough to be made Supreme Court Justices; that the nomination creates the impression that anybody who is a SAN is better and more knowledgeable; that the decision might affect the dedication, morale and commitment of the Court of Appeal Justices in their work as there is now no guarantee of their promotion to the Supreme Court since any SAN from the bar can be appointed above them.”

WHY APPOINTMENTS MAY NOT WORK:

A former media aide to former CJNs Aloma Mukhtar and Justice Mahmud Mohammed, Issa Ahuraka, said it would take the camel to pass through the needle’s eye than for a lawyer to be appointed a JSC.

Ahuraka said that shortly before her retirement on November 2014 after Justice Mukhtar initiated and signed into law the ‘2014 Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all Superior Courts of Record in Nigeria.

He said: “Rule 3 (6) of the Guidelines is unambiguous because it stipulated the judicial officer’s appointment to a higher bench to be determined among other requirements of the number of judgments delivered.

“The provision states unequivocally that ‘in the case of appointment from the Bar, evidence of six contested cases in the last five years; (ii) sound knowledge of law, (iii) seniority at the Bar and or the Bench, (iv) Federal Character or geographical spread and where necessary and possible, without compromising the independence of the judiciary or allowing politics to permeate or influence the appointment.” He said the immediate past NBA President, Augustine Alegeh in 2015, during whose tenure the agitation started, nominated some senior lawyers to Justice Mohammed for appointment into the Supreme Court Bench but they did not meet the requirements.

“The question is: Can any Senior Advocate of Nigeria make it to the Supreme Court Bench even under the Revised Guidelines?  Of course, the answer is no.

“And there is no way the Guideline could be reviewed without considering the number of judgments delivered or secured by the applicants, be it a lawyer or Judicial Officer.”

Therefore, I humbly submit that this appointment should be jettisoned. The NJC should sponsor a bill inputting the  NJC Guideline  into the Constitution to restrict future occurrence.

 

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