Proposed appointment of lawyers to appellate bench sparks cold war between the bar and the bench

Supreme Court

Many justices of the higher courts, according to sources, are however opposed to the new proposal and while choosing not to express their opposition publicly, they 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.

Chief Justice of Nigeria (CJN), Justice Walter Onnoghen’s plan to appoint senior lawyers directly to the Court of Appeal and the Supreme Court is causing disquiet 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, Justice Zainab Bulkachuwa, 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.

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Many justices of the higher courts, according to sources, are however opposed to the new proposal and while choosing not to express their opposition publicly, they 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 appellate 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 everyday, 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.

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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.”

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.

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“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 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.

Rule 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.

Source: ThisDay