Appointment of Heads of Superior Courts of Records in Nigeria: Between Merit, Seniority and Politics

By

Joseph Jar Kur

 

Abstract

The question of who heads a court of record in Nigeria is more than a head line but has valid issues as to whether the appointment should be based on merit, seniority or should be cloth with political connotations. These arguments call for resolutions between established tradition and content of written law. The paper has appraised the relevant factors and call for the depolarisation of the exalted office of the Chief Justice of Nigeria and indeed any head of court of record in Nigeria for purposes of enhancing professionalism. The paper calls for absolute insulation of the judiciary from politics and calls for amendment of certain constitutional provisions namely, sections 231 (1), 238 (1), 250 (1), 256 (1), 261 (1), 266 (1) 254 (A), 271 (1), 276 (1) and 281 (1) so as to strip the President/Governors of the power of appointing Heads of Court of Records. The power of appointment of the various Heads of Courts should be the Supreme powers of the National Judicial Council (NJC) in accordance with the provisions of section 153(1) and 158(1) of the Constitution as well as the true spirit of the rule of law and independence of the Judiciary. Also, the provision of section 5, Part II of the Third Schedule to the Constitution which include the Attorney-General of the State from being a member of the State Judicial Service Commission should also be amended in the true spirit of clothing the judiciary with its independence as far as appointment and discipline of judicial officers are concerned. This paper however is limited to the criteria of appointment of Heads of Courts of Records in Nigeria.

 

1.1   Introduction

*  Associate Professor and Head, Department of International Law and Jurisprudence, Benue State University, Nigeria. jkur@bsum.edu.ng Tel: +234 803 591 7744

 

 

This paper focuses on the appointment of heads of courts of records in Nigeria. The question that the paper seeks to answer is that, should the appointment be based on criteria of merit, seniority or other political considerations of ethnicity, religion, god fathers, luck, chance, federal character or simply professionalism and competency of the person to be appointed. The discourse also happens to coincide with perceived fear of about a constitutional logjam and conspiracy theories of the Buhari led administration not willing to confirm the appointment of Justice Walter Samuel Nkanu Onnoghen, as the substantive chief Justice of Nigeria, after he served as the Acting Chief Justice pursuant to Section 230(1) of the 1999 constitution and was the most senior justice of the Supreme Court. Another coincidence is the enactment of the 2014 revised National Judicial Council´s guidelines and procedural rules for the appointment of judicial officers of the superior courts of records in Nigeria, which rules have not only spelt out better merit based guidelines but call for nomination of Private legal practitioners for appointment as Supreme and Court of Appeal Justices as well as the position of Chief Justice of Nigeria. While the name of Justice Onnoghen has finally been sent to senate and indeed sworn in as the substantive Chief Justice of Nigeria, the Hon Chief Justice of Nigeria at the swearing in ceremony vowed to insist on preserving the independence of the judiciary. It is he who wears the shoes that knows where it pinches impliedly, this topic cannot be more apt than now and call for proper discourse of the subject matter with a view to proffering suggestions to the polity for a better administration of justice and if possibly avoidance of similar quagmires eminent in the future.

 

Key words:    Appointment; Superior Courts; Heads of Superior Courts of Records; Merit; Seniority; Politics; Appointment of Chief Justice of Nigeria (CJN) and Chief Judges of States (CJs) and President of Courts in Nigeria.

Appointment

Appointment is the act of assigning a job or position to someone. It is synonymous with nomination, selection, designation, election and engagement. In the context deployed here, reference is made to the power of the President of the Federal Republic of Nigeria or the Governor of a state to appoint a person to head a court on the recommendation of the National Judicial Council subject to the confirmation of Senate or State House of Assembly. The express provisions here relating to appointment of who heads a particular court in Nigeria and these involves the three arms of government namely, the legislature, executive and the judicial arm itself through the instrumentality of the National Judicial Council.

 

1.2     Superior Courts of Records in Nigeria

Superior Court of Record refers to those Courts presided over by judges trained in law where there is, a statutory duty to record same for public access, proceedings leading to their judicial pronouncements. The Superior Courts of record in Nigeria are listed in the Constitution namely,  the Supreme Court of Nigeria; the Court of Appeal; the Federal High Court; the High Court of Federal Capital Territory, Abuja;  High Court of a State; the Sharia Court of Appeal of the Federal Capital Territory Abuja;  Sharia Court of Appeal of a State; the Customary Court of Appeal of the Federal Capital Territory Abuja;  Customary Court of Appeal of a State[1] as well as the National Industrial Court[2]which is listed as one of the superior courts of records by inserting immediately after the existing section 6(5)(c) CFRN, a new paragraph “(cc)” that recognises the National Industrial Court” as one of the Superior Courts of records.

 

1.3    Heads of Superior Courts of Records in Nigeria

Heads of Superior Courts of Record  here is referred to the offices of the Chief Justice of Nigeria; President of the Court of Appeal; Chief Judge of the Federal High Court; Chief Judge of the High Court of the Federal Capital Territory; Grand Kadi of the Sharia court of Appeal of the Federal Capital Territory; President of the Customary  Court of Appeal of the Federal Capital Territory; President of National Industrial Court; Chief Judge of the State High Court; Grand Kadi of the Sharia Court of Appeal; President of the Customary Court of Appeal of a State. By virtue of the constitutional provisions establishing these offices, the appointment of these Heads of Courts are vested in the President of the Federal Republic of Nigeria on the recommendation of the NJC in respect of the federal courts subject to confirmation by the senate. The Constitution equally vests the appointment of Chief Judges of State High Courts, Presidents of Customary Courts of Appeal, Grand Kadi of the Sharia Court of Appeal under the authority of Governors of the various States on the recommendations of the NJC subject to the confirmation by the State Houses of Assembly.

 

1.4 Merit

The word merit is a noun expressing the quality of being particularly good or worthy, especially so as to deserve praise or reward.[3] The term merit constitutes a desirable trait or ability belonging to a person or (sometimes) an object. Merithere denotes earned or deserving position. To borrow the lingual of Court that decided cases are based on the merit here implies that from all material facts placed before the Court, the Court has reached its Judgment based on the most persuasive evidence. Applying this principle to appointment of who is qualified to head a court, only persons who are qualified, suitable and have distinguished themselves in character and conduct that are to be considered for the position of leading other justices as heads of court.

1.5  Seniority

Seniority is preferential status, principle or right. It is the status of being older or senior[4]. Leaning on history, the legal profession is anchored on the tradition of seniority which is principally based on when a person is enrolled and called to the Bar of the Supreme Court for purposes of practice. The profession recognises seniority and thrives on seniority[5]. The concept of seniority at the Bench must, however, be distinguished from that of seniority at the Bar. Seniority at the Bench is based on who first got appointed on a given Bench. It simply means the length of experience on the Supreme Court Bench[6] as the case may be. There exist several arguments for and against the use of seniority in appointment of Judges as heads of Courts. The proponents of Seniority principle anchor their arguments on career building and motivational factors on the job description, while opponents of appointments on seniority base their argument that, seniority enthrones mediocrity which inturn breeds corruption and ineptitude.[7]

1.6 Politics

Politics in the larger perspective relates to activities associated with governance of a country, area, or profession. It relates to the process of making decisions which apply to all members of each group. In the narrower sense, it refers to achieving and exercising positions of governance. Politics is manoeuvres or diplomacy between people, groups or organisations especially involving power, influence or conflict. Politics in the appointment of who heads a court is statutorily provided and codified although the necessary provisions are open ended as much reliance is made to bear on such issues as geo-political areas, sectional interest, tribes, religion and in some instances god fatherism. These extraneous factors that have crept into the appointment of Judges and by extension, heads of courts are alien to the administration of Justice[8]. Politics of judicial appointment here refer to the issue of how and when people get to the Bench of superior Courts and eventually become the most seniors and heads of such courts. The procedure is that, whenever there is vacancy for instance in the Supreme Court, it is often filled (by quota) or geo-political representation. However, the traditional and more often procedure adopted is by elevation from the Court of Appeal. But that doesn’t stop a person from being appointed straight to the Supreme Court without having been in the Court of Appeal (For instance, Justice Niki Tobi from Delta State, was a professor of law and Dean at the University of Maiduguri, when he was appointed as High Court Judge but got accelerated promotion to the Supreme Court). Another instance is the appointment of Dr T.O. Elias who was a senior lecturer at University of Lagos, when he was appointed the Attorney General of the Federation and thereafter appointed the  Chief Justice of Nigeria in 1973 and has remained one of the best Chief Justices. Justice Elias was appointed above serving justices of the Supreme Court. Another instance of appointment to the Supreme Court is the case of Justice Dr Augustine Nnamani who was neither a magistrate nor a high court judge, he was appointed to the Supreme Court and is acclaimed to be one of the best supreme justice until his sudden death while in service. Another instance again is the appointment of Justice Uloko, who became the chief judge of Plateau State not by virtue of his being a serving judge but as the Attorney General of the state after the exit of Hon Justice Alfred Obi-Okoye.Similarly, to get to the Court of Appeal, the traditional route is for a high court judge to be elevated to it. Beyond the above stated is the effect of or the twist of coincidence. You may wish to add ‘luck’, ‘chance’ or ‘god father’, to wit, are a few examples[9].

 

2.1   Who Qualifies to be Appointed to the office of Heads of Superior Courts of Records in Nigeria: Office of the Chief Justice of Nigeria and Chief Judge of a State Under the 1999 Constitution in focus.

The answer to the above question can be found in the applicable sections of the 1999 CFRN (as amended). The Constitution provides for the office of Chief Justice of Nigeria[10]thus

the appointment of a person to the office of Chief Justice of Nigeria (CJN) is made by the President on the recommendation of the National Judicial Council (NJC) subject to confirmation by the Senate.”[11] The Constitution further provides that “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 15years”[12].

The constitution merely prescribes the qualification of being a legal practitioner of not less than fifteen years post Bar call and has not restricted the person to be so appointed whether, from the roll of justices of the supreme court or from outside of the bench. The provisions therefore give room for possible manoeuvring the process of appointing the Chief Justice either from the Supreme Court bench or even the possibility of appointing a private legal practitioner to the office of chief justice of Nigeria. The private legal practitioner to be so appointed is nowhere defined in the constitution and, the question whether the said legal practitioner to be appointed should be based on meritorious practice of litigation is nowhere mentioned or referenced. Equally, whether the legal Practitioner should be a senior at the legal profession Bar is neither mentioned. The constitution has equally not stated that the appointment of the Chief Justice of Nigeria nor any other head of court should reflect nor take cognisance of federal character indices. It also does not provide that the appointment of the CJN or indeed any other head of court should be based on the seniority of appointment to the bench of the Supreme Court nor from the roll of justices of the court. The provisions of the law are clear and unambiguous and cannot be contradicted by any other interpretation other than the literal rules of interpretation.

Irrespective of these clear provisions, quagmires do exist with reference to subsection four which provide that, “if the office of the chief justice of Nigeria is vacant…until the person holding the office has resumed those functions, the president shall appoint the most senior justice of the supreme court to perform those functions” It is worthy of comment here that it is subsection four that has introduced the issue of seniority[13] for the first time and by extension the inference of appointing an acting chief justice amongst  the serving justices. The necessary implication without doubt is that, the 1999 constitution is silent as to whether a person to be appointed a CJN must be a serving justice. It equally mean that, any ranking justice can be made a CJN and it equally means that any qualified person can be made a CJN. Similar provisions exist with reference to other superior courts of records under the constitution in Nigeria. With regard to the President of the Court of Appeal, the Constitution provides thus “the appointment of a person tothe office of a Justice of the Court of Appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate”[14].Section 238 (4) provides that, “if the Office of the President of the Court of Appeal is vacant… until the person holding the office has resumed those functions, the President shall appoint the most Senior Justice of the Court of Appeal to perform those functions. Section 250 (1) provides that, “the appointment of person to the office of Chief Judge to the Federal High Court shall be made by the President on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the Senate”. While Section 250 (4) provides to the effect that, “If the office of the Chief Judge of the Federal High Court is vacant…until the person holding the office has resumed those functions, the President shall appoint the most senior Judge of the Federal High Court to perform those functions”.

With respect to state superior courts of record, the appointment of Chief Judges and Presidents of Customary Courts of Appeal are equally statutorily provided. Under Section 271(1) the Constitution provides thus:“The appointment of a person to the office of Chief Judge of a state shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the State.”While Section 271(4) provide that, “if the office of chief judge of a state is vacant…then until a person has been appointed…the Governor of the state shall appoint the most senior judge of the High Court to perform those functions”.

 

Section 281 of the 1999 Constitution provides for the appointment of a President and Judges of the Customary Court of Appeal of a State thus, “The appointment of a person to the office of President of a Customary Court of Appeal shall be made by the Governor of the State on the recommendation of the National Judicial Council, subject to confirmation of such appointment by the House of Assembly of the State.” Section 281(4) provides that, “If the office of the President of the Customary Court of Appeal of a State is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed the functions of that, the Governor of the State shall appoint the most senior Judge of the Customary Court of Appeal of the State to perform those functions.”

 

While commenting in similar vein on the Appointment of state Chief Judge and President of Customary Court of Appeal with reference to Benue State, Ijohor,[15]opined that, by the operation of Section 271(1) of the Constitution, the appointment of a person to the office of Chief Judge is made by the Governor of a state on the recommendation of the NJC subject to confirmation of the appointment by the House of Assembly of the State and that the  Constitution is silent as to whether a person to be appointed as the Chief Judge of a State must be a serving Judge; he submits that any person who is qualified to hold the office of a Judge of a High Court of a State can be made a Chief Judge and that a person who is not a serving Judge at all can be made a Chief Judge.

He submits that to cure this deficiency, section 271(3) of the Constitution should be amended so that no one is in doubt that when the office of the Chief Judge becomes vacant, only serving Judges would be appointed to fill such vacancy.[16] He further suggests that since it shown by experience in other States of the Federation that the person to fill the vacancy should be chosen amongst the first three most senior Judges. If the most Senior Judges are for one reason or the other not recommended, then the next in line should be and where he is also not recommended then the third in line should be recommended. A situation where a junior Judge is made a Chief Judge over and above all his seniors must be condemned.[17]

 

As regards the appointment to the office of the President of the Customary Court of Appeal, he observed that by virtue of S. 281(3)  the person should be either a Legal Practitioner in Nigeria and who is so qualified for a period of not less than ten years and in the opinion of the NJC he has considerable knowledge and experience in the practice of Customary Law otherwise, this may create a scenario where a person can be made President of the Customary Court of Appeal even when he is not a lawyer but, the NJC is of the opinion that he has considerable knowledge of and experience in the practice of customary law.[18]

The learned writer called for constitutional amendment so that only lawyers who have been so qualified on such terms are made Presidents of the Customary Court of Appeal. Worthy of significance is the fact that in Benue State, the House of Assembly in its wisdom has taken care of this problem. Under section 6 of the Customary Court of Appeal Law  2006, a person can only be made a Judge of the Customary Court of Appeal, if he is amongst other things, a legal practitioner in Nigeria and has been so qualified for a period of not less than ten years.[19]The entire process of who appoints can thus be summed that the President of the Federal Republic of Nigeria on the recommendations of the NJC appoints all the mentioned heads of courts subject to confirmation by the Senate. While at the state level, Governors appoint heads of courts on the recommendation of the NJC subject to confirmation by the state House of Assembly.

 

The Constitutional responsibility for the appointment, punishment and removal of judicial officers as well as that of a head of court of record in Nigeria, is vested in the National Judicial Council[20] (NJC) which is one of the Federal Executive Bodies created by virtue of section 153 of the Constitution. The philosophy for the establishment of NJC is to insulate the judiciary from the whims and caprices of the Executives; hence guaranteeing  the independence of this arm of government, which is a sine qua non for any democratic government, the NJC was created and vested with enormous powers and functions which the erstwhile Advisory judicial Committee (AJC) it replaced.

 

With respect to the appointment of heads of courts, the provisions of paragraph 21 of part one of the third schedules to the 1999 Constitution (as amended) provides thus:

The National Judicial Council shall have the power[21] to:

(a)Recommend to the President from among the lists of persons submitted to it by –

(i)        The Federal Judicial Service Commission, persons for appointment to the offices of the Chief Justice of Nigeria, the justices of the Supreme Court, the President and Justices of the Court of Appeal, the Chief Judge and Judges of the Federal High Court, and

(ii)       The Judicial Service Committee for the Federal Capital Territory, Abuja, persons for appointment to the offices of the Chief Judge and Judges of the High Court… the Grand Kadi… and the President and Judges of the Customary Court of Appeal of the Federal Capital Territory.

(c)       Recommend to the Governors from among the list of persons submitted to it by the State Judicial Service Commission persons for appointment to the offices of the Chief Judges of the State…Grand Kadi… and President and Judges of the Customary Court of Appeal of the State.

 

3.1         Politics of Appointment: An X-ray of some Select Judicial Cases

  • The then Governor of Rivers State, Hon Rotimi Ameechi, rejected the recommendations of the NJC to appoint Hon. Daisy Okocha as the Chief Judge (CJ) of Rivers State on the ground that the recommendations of the NJC was Advisory and not mandatory. His position was that in his exercise of the powers conferred on him by the Constitution[22] he was not compelled to accept the said nomination. The then Governor went ahead to appoint and swear in Hon. Justice P.N.C. Agumagu (President of Customary Court of Appeal of Rivers State) as CJ of the State. The NJC refused the appointment and suspended the CJ for accepting the said appointment without the recommendation of the NJC. The NJC went ahead to appoint Hon. Justice Daisy Okocha as “Administrative Head” with powers to assign cases to other judges of the High Court. This move led the then Governor to issue a directive to the Judiciary staff not to take directives from the Administrative Head with a threat to dismiss anyone who disobeys the directive. This chaos led to the shutdown of the Judiciary in Rivers State from 20th August 2013 to 31st May, 2015.This led to the intervention by the Court in the case of Governor of Rivers State & Ors v. National Judicial Council & Anor[23] where the learned trial Judge held that there is no requirement under Section 271(1) of the 1999 Constitution (as amended) that only a serving Judge of the High Court of a State or the most senior Judge of the State High Court is eligible to be recommended by the National Judicial Council to the Governor of a State for appointment to the office of Chief Judge of a State.
  • According to the learned trial Judge: “The Provision of paragraph 21 of the 3rd Schedule to the Constitution does not empower the NJC to make its choice of nominee for the office of the Chief Judge of a State based on seniority of Judges of the High Court of Rivers State.”(emphasis mine to buttress the constitutional provision as opposed to the Benue State Customary Court of Appeal law provision made by the State House of Assembly)

On the specific question whether or not, the Rivers State Judicial Service Commission was, bound to nominate only Judges of the High Court of Rivers State to the National Judicial Council for recommendation to the Governor for appointment to the office of Chief Judge of Rivers State, the trial Judge held further that, “the Constitution does not curtail or limit the power of the State Judicial Service Commission; to choose only candidates from Rivers State High Court when performing its constitutional function in advising the 1st defendant on a suitable candidate.[24]

  • Another scenario here in issue is the removal of Justice Ayo Salami from office as President of the Court of Appeal on the 11th August, 2011;After Salami’s removal, the late Justice Dalhatu Adamu was appointed Acting President of the Court of Appeal by then President Goodluck Jonathan in August 2011. He held the office of President of the Court of Appeal in an acting capacity for 15 months. After 15 months as Acting President of the Court of Appeal, the name of late Justice Dalhatu was not eventually recommended to President Goodluck Jonathan for nomination as the substantive President of the Court of Appeal by the NJC; rather, the name of Justice Zainab Bulkachuwa was recommended by the NJC to President Jonathan to the Senate on March 19, 2014 for confirmation.
  • Another episode relate to the scenario of Justice Mariam Aloma Mukhtar who could have become the Chief Judge of Kano State many years ago. But when she inched towards being the CJ there, it was alleged that the ‘powers that be’ in the state were reportedly not comfortable with the possibility of her heading the state judiciary then a conspiracy ensured wherein they got her elevated to the Court of Appeal. Although she missed the chance of being (a mere) state CJ, Mariam Mukhtar also got elevated again to the Supreme Court. Some people think she was equally promoted upstairs so that she might not become President of the Court of Appeal. While marking time and progressing gradually in the Supreme Court, time and chance worked for her as some older justices retired and behold, she became the first female CJN.
  • Back in the 1990s in Cross River State, then Chief Judge, Edem Koofreh, having held the office for several years was nearing retirement. A certain Justice Emmanuel Effanga was the next most senior judge to Koofreh. As he neared taking over on the imminent retirement of Koofreh, there was grapevine feed of elevating Justice Effanga to the Court of Appeal which he reportedly was not agreeable to. Justice Effanga stayed back in the Cross River State High Court until he later succeeded Koofreh as chief judge. Another point to note is that quota system appointing judges to the superior Bench if one come from a state or geopolitical area where there are many qualified people to choose from, it would take you a longer time to make it to higher courts than your colleagues from areas with fewer qualified persons. This means that by the time one make it up there, your contemporaries from the ‘less-endowed’ states who already have been on the Bench become your seniors and they would, naturally, head the Bench before you or you may even retire on account of age, before the younger ones. This could explain why for many years JSCs from the South did not emerge the CJN, especially as no highest-ranking JSC was ever side-stepped in the appointment of the CJN[25].
  • The politics of appointment also trailed in the submission and delayed submission and confirmation of Justice Onnoghen as the substantive Chief Justice of Nigeria which many critics deployed the unnecessary conspiracy theories. Justice Onnoghen was appointed Acting Chief Justice of Nigeria on November 9, 2016. Onnoghen’s appointment as acting CJN did not just happen. He was the most senior justice of the Supreme Court at the time. He was equally recommended by the NJC to be appointed CJN on October 11, 2016 following the long established tradition of the Supreme Court to appoint the most senior justice as the CJN. Instead of appointing Justice Onnoghen as the substantive CJN, the President rather appointed him in an acting capacity which appointment has a window period of three months within which a new CJN must be appointed. The delay in submitting the name of Justice Onnoghen to the Supreme Court for confirmation sparked a media war and propaganda which in turn heated up the judicial polity for the reason that no one from the southern part of Nigeria had been appointed to serve  as the CJN since Justice Ayo Irikefe left in 1987.

To address the longstanding advocacy for reforms in the mode of appointment of judicial officers by citizens and various organisations, the NJC, announced new extant Guidelines and Procedural Rules for the appointment of judicial officers of all Superior Courts of Records in Nigeria 2014. Under the Rule 4(i) candidates for elevation to the higher Bench must have the following criteria:

(a) Good character and reputation, diligence and hard work, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics as may be applicable;

(b)   Active, successful practice at the Bar, including satisfactory presentation of cases in court as legal practitioner either in private or as a legal officer in any public service;

(c)   Satisfactory and consistent display of sound and mature judgment in the office as a Chief Registrar or Chief Magistrate;

(d)   Credible record of teaching law, legal research in reputable university and publication of legal works, and in addition to any of the above;

(e)   In the case of appointment of a candidate to the office of Kadi of a sharia court of Appeal, knowledge of Arabic language and grammer. rules provides that, upon compliance with Rules 1 – 4 of these rules, the chairman of the Judicial Service Commission/committee shall advice or as the case may be, recommend to the National Judicial Council by a memorandum which shall conclude with a clear declaration that the NJC Guidelines and Procedural Rules have been complied with strictly and fully.

 

Rule 6 provide further that:

(1)       Every candidate/Judge, Justice/Chief Judge/Legal Practitioner, who has been shortlisted shall undergo interview to be conducted by the NJC to ascertain his or her suitability for the judicial office.

(2)       the mode of interview shall be determined by the council.

(3)       …..

(4)       A candidate who is unsuccessful at the interview shall not be recommended for appointment by the council.

(5)       A candidate once rejected on the ground stated in Rule 4(4)(ii) shall not be represented to the council for at least another two years or such period as the council may direct.

 

The question that begs for answers is whether these provisions are sufficient for the appointment of persons to the sensitive position of Judicial office who may in no distance would became a head of Court? Whether these new rules advocate a better and more merit based, competitive and transparent process than the old? In what way would the process be a safeguard of judicial office from being politicised, or from being vulnerable to high-profile lobbying or even institutional nepotism? Perhaps, in an attempt to remedy the tainted process of nominating persons for vacancies for judicial offices, NJC disclosed that it will henceforth advertise[26] to fill vacancies through the introduction of more stringent measures to make sure that only honest, hardworking, untainted, best minds with and high moral standards lawyers become Judges[27].Succinct as these guidelines may be, certain questions call for further interrogation such as; what does good character and reputation, diligence, hard work, honesty, integrity and sound knowledge of law mean? Who determines and what are the objective standards of prescription? Why equate reputation and integrity when integrity is a self-seeking reflection and evaluation thus becoming highly subjective. What is the basis or yardstick for assessing good character?  What again does active and successful practice at the Bar means? Is it same with continuous and consistent legal practice? What does rule 4(i)(d) mean by university? Does that include research institutions or it excludes? Again, what constitute reputable university within the context of the expression? Who and what is the definition of an untainted lawyer?

 

3.2         Appointment of Heads of Courts of Record: Comparative Approach

Comparative lessons exist with a view to providing an overview of the various approaches taken by some member states to these matters and identify best practices from a rule of law perspective. In the United States where Nigeria copied the presidential system of government, the Chief Justice presides as the head of the United States Federal Court system. The Chief Justice is one of nine Supreme Court Justices; the other eight are the Associate Justices of the Supreme Court of the United States. The Chief Justice is the highest judicial officer and doubles as Chief administration officer. The Chief Justice leads the business of the Supreme Court and presides over oral arguments. When the Court renders an opinion, the Chief Justice-when in the majority, decides who should write the Court’s opinion. The United States Constitution does not explicitly establish the office of Chief Justice, but only presupposes its existence with a single reference[28] where it provides to the effect that, “when the President of the United States is tried, the Chief Justice shall preside”.[29] Beyond this mention, nothing more is said in the Constitution regarding the office including any distinction between the Chief Justice and Associate Justices[30] of the Supreme Court, who are not mentioned in the Constitution. The Chief Justice is usually nominated by the President of the United States and confirmed to sit in the Court by the United States Senate. While the Chief Justice is appointed by the President, there is no specific constitutional prohibition against using another method to select the Chief Justice from among those Justices, properly appointed and confirmed, to the Supreme Court. The necessary implication of the United State process is that, there is no autonomous body like the NJC that recommends for any appointment, and there exist no process that permits the Justices to select their own Chief Justice.[31]

 

This procedure and processes enabled three Associate Justices to receive promotions to Chief Justice namely, Edward Douglas (1910), Harlan Fiske Stone (1914) and William Rehnquist (1986) and when Bush nominated John Roberts as Chief Judge, Roberts had never been in the Court. The general criteria for selecting Supreme Court Justices in the US are based on highly professional qualifications (as lower court judges, legal scholars or private practitioners). The nominees are evaluated by the American Bar Association’s Standing Committee on the Federal Judiciary; Integrity and Impartiality and other issues are the determining factors. There  are other considerations too(as President Barrack Obama did in 2009, when announcing his nomination of Judge Sonia Sotomayor to the Court, said,)“such as “mastery of law,” the “ability to hone in on the key issues and provide clear answers to complex legal questions” and “a commitment to impartial justice.” The President added that additional requisite quality was “experience” which he explained was experience being tested by obstacles and barriers, by hardship and misfortune, experience, persisting and ultimately, overcoming those barriers. It is experience that can give a person a common touch and a sense of compassion, an understanding of how the world works and how ordinary people live. And that is in a way a necessary ingredient in the kind of justice we need in the Supreme Court. A president, as well, may consider additional factors when the Supreme Court vacancy to be filled is that of the Chief Justice. Besides requiring that a candidate be politically acceptable, he should also have excellent legal qualifications and enjoy a reputation for integrity, a president might be concerned that his nominee has proven leadership qualities necessary to effectively perform the task specific to the position of Chief Justice. Such leadership qualities, in the President’s view could include administrative and human relations skills, with the latter, especially important, in fostering collegiality among the Court’s members. The President also might look for distinction or eminence in a Chief Justice nominee sufficient to command the respect of the Court’s other justices and as well enhance public respect for the Court. A President, too, might be concerned with the age of the Chief Justice nominee, requiring, for instance, that the nominee be at least of a certain age (to ensure an adequate degree of maturity and experience relative to the other justices) but not above a certain age (to allow for the likely ability to serve as a leader on the Court for a good number of years. In India, there exists no specific provision in the Constitution for appointing the Chief Justice, who, as a result, is appointed like the other judges.[32] However, conventionally, the outgoing CJI recommends the name of the senior-most Judge (i.e. by date of appointment to the Supreme Court) for appointment by the President of India, as his successor. Notwithstanding, this convention has been breached on a few occasions, when during the tenure of Prime Minister Indira Gandhi, she got Justice A.N. Ray appointed as CJI, superseding three Judges senior to him.[33]

Comparatively, in Nigeria, the criteria, procedure and safeguard as to the appointment of who to head a court is constitutionally provided. Although, the constitution of Federal Republic of Nigeria (FRN) provides that “the state social order is founded on ideals of freedom, equality and justice”[34] and further provides for the independence, impartiality, and integrity of courts of law, but in practice, the independence of the judiciary arm of government is more mythical than real in Nigeria. The theoretical independence, impartiality and integrity of courts are mostly tainted due to the influence and most a times usurpation by the ever powerful Executives and the Legislatures.

The judicial experience in Nigeria shows an arm of government without constitutional or statutory independence either in terms of substantive independence, personal independence nor internal independence. An example is the case in respect of Ayo Salami’s removal and suspension as President of the Court of Appeal, which was connected to his refusal to bow to pressure from the former CJN, Justice Katsina Alu, to throw out a petition relating to the gubernatorial elections in Sokoto State. It was alleged that Justice Katina Alu did not want the Governor’s election to be nullified by the Appeal Court Tribunal so that the Governors removal will not undermine the Sultanate interest but which the then Justice Salami did not succumb.

The deductions from the foregoing provisions of the constitution show that, the framers of the Nigerian Constitution, like all makers of constitutions in a presidential system of government, provided for separation of powers with checks and balances to regulate powers within the arms of government. But the implication of this on the practice in Nigeria is that, it is practiced flexibly with the potential harm of jeopardising the very essence of the independence of the judiciary. Indeed, the 1999 constitution has in terms of appointment of heads of courts has not guaranteed a substantial level of independence but has virtually placed the judiciary at the feet of the executive branch of government.

 

4.1  Issues in the appointment of who heads a court of record in Nigeria; Appointment of the Chief Justice of Nigeria in perspective

The question of whether the appointment of a person to the exalted office of Head of a Court of Record in Nigeria should be guided by the question of either merit, seniority or other considerations that will call into interplay of politics, can only be answered within the confines of the constitution of Nigeria. Noteworthy is the fact that even the Extant Revised NJC Guidelines and Procedural Rules for the Appointment of Judicial Officers of all superior courts of Records in Nigeria, 2014( although a subsidiary guideline) have equally failed to reference on the matter.

 

Traditionally, the question of who becomes the CJN is not premised on constitutional provisions but rather on tradition of seniority and ethnic balancing and not on the 1999 constitution. The criteria of who to be appointed the chief justice is provided by section 231(1) of the constitution while the qualification for appointment of same is provided by section 231(3); the makers of the constitution did not make seniority or tradition one of the qualifications for appointment. Rather, the provision of section 231(4) referenced “seniority’’ only with reference to the appointment of a person in notional acting appointment. Additionally, elementary rules of interpretation of statutes make it abundantly clear that, section 231(4) of the constitution does not govern the appointment of a substantive chief justice. It is the further submissions of the writer, the office of the CJN is not promotional position or reward to long stay on the bench but rather it is an appointive position which is based on the provisions of section 231(1).

Another issue of importance is that of the independence of judiciary as well as that of the National Judicial Council, as stipulated under section 21 of Part 1 of the third schedule, particularly as it relates to the power of the council to appoint who heads a particular court. The discourse is seen from the perspective of an independent judiciary being one of the cornerstones of democracy; threat to that independence haven surfaced in Nigeria rapidly in recent days, the recent tactical meddling in the appointment of the Chief Justice of Nigeria is one such incidences. The Judiciary has, in real sense, not been independent as it ought to be in Nigeria over the years despite a clear cut constitutional guarantee of independence. The constitution provides that; the state social order is founded on ideals of freedom, equality, and justice: the independence of the judiciary, impartiality and integrity of courts of law and easy accessibility thereto shall be secured and maintained. While this provision is commendable, it is important to observe that this provision is of the fundamental objectives of Directive principle, itself being a non justifiable provision under the constitution of Nigeria. The necessary implication is that, it becomes anachronistic that this provision is inserted under this head and being so, it means that, the constitution itself after providing for independence of the judicial arm renders such independence unenforceable. It is thus within the established framework that the role of the NJC and JSC, is viewed as it relates to the constitutional and institutional prerequisites for insulating Judges from the external influences of those who wield power.

The NJC is constitutionally regulated and composed of perceived people of honour. Under the third schedule, part 1 of the constitution, the NJC is comprised of the following members –

  • The Chief Justice of Nigeria
  • The next most senior Justice of the Supreme Court
  • The President of the Court of Appeal
  • Five retired Justices selected by the Chief Justice of Nigeria from the Supreme Court or Court of Appeal
  • The Chief Judge of the Federal High Court
  • Five Chief Judges of States to be appointed by Chief Justice of Nigeria from among the Chief Judges of the States and of the High Court of the Federal Capital Territory, Abuja in rotation to serve for two years
  • One Grand Kari to be appointed by the CJN
  • One President of Customary Court of Appeal to be appointed by the CNJ
  • Five members of Nigerian Bar Association at least one of whom shall be a Senior Advocate of Nigeria

While the State Judicial Service Commission is regulated under the third schedule Part II and comprises of the following: The CJ of a State, the A.G of a State, the Grand Kadi of the Sharia Court of Appeal, The President of the Customary Court of Appeal, two members who are legal practitioners of good standing, two other persons not being legal practitioners who are of unquestionable integrity.

 

NJC is an executive body established by the Federal Government of Nigeria in accordance with the provision of section 153 of the 1999 Constitution (as amended) to protect the Judiciary of Nigeria from the whims and caprices of the executive. Its sole responsibility is promoting legal professionalism. While section 153 statutorily constitute the NJC, section 158 (1), states that in exercising its powers to make appointments or to exercise disciplinary control over persons, it shall not be subject to the direction or control of any other authority or person. The core value and intent of section 158 (1) of CFRN 1999 is to preserve the independence of the Judiciary in both its subjective and objective sense of direction. In support of this view, the Court of Appeal in Manuwa v. National Judicial  Council[35] held that the purport of section 158 (1) CFRN 1999 is that the NJC shall remain independent and shall not be influenced by any person or authority while exercising its powers to make appointments or exercise disciplinary control. According to the Court, the independence of the NJC in respect of appointments starts from the point of recommendation to either the president or Governor as the case may be and during this process, no authority or person can interfere by giving directives or exercising any form or control over the Council.

The vesting of this onerous power on the NJC can be justified on the ground that apart from the peculiar advantage which the Council has by virtue of the calibre of its membership to assess the performance and industry of judges, the Council is also seized of all relevant materials and information on all judicial officers and is placed in the best position to make informed recommendations to the state Governors[36] as well as to the President.

However, as succinct as the foregoing powers are appraised, the role played by the Attorney General of the Federation (AGF)[37] in the Salami saga following his uncanny role in the continued suspension of the then President of the Court of Appeal (Justice Isa Ayo Salami as he then was) when he played the proverbial black sheep by waving the word “Subjudice” as a magic wand capable of scaring away a perceived enemy of the government in power. According to Adoke, “until all the pending litigations are disposed of, President Jonathan will not reinstate the suspended PCA”[38]. In reaction, the NBA/NEC (Nigerian Bar Association and National Executive Council)[39] considered the recent NJC recommendation to the president of FRN to recall the Hon. Justice Isa Ayo Salami back to the office of the president of the court of Appeal of Nigeria and condemned the refusal of the president to do so on the pretext of pendency of litigations in court “NBA/NEC considered the decision was made in bad faith as there was pending litigation when the original decision to suspend him was taken”.

Flowing from the foregoing facts as presented, the role of the executive in negating the recommendation of the NJC to the president amount to an unusual interference with the Judiciary contrary to the independence of the judiciary, separation of powers, rule of law, checks and balances that exist in the functions of the three arms of government. Independence of the judiciary which is the cornerstone of the rule of law demands that the judiciary should not be subservient or subordinated to the executive arm of government in terms of the appointment, discipline and removal of judicial officers[40].

Other subterranean issues for consideration here include the fact that, if NJC is an executive body established by the Federal Government as stipulated by the constitution, why then do recommendations of the body are subjected to the executive discretions? Secondly, if the legislative powers of the Federal Republic of Nigeria are vested in the National Assembly and, the two Houses, namely, Senate and House of Representatives appoint and remove their respective leaders, namely, the Senate President and speaker of House of Representatives under their established rules, procedures and privileges without recourse to any other organ of government, why then would the NJC not appoint their respective Heads of Courts in accordance with the established rules.

Thirdly, if the president and Governors, respectively, gain legitimacy upon election without recourse to either legislative or judicial approval, why would the judiciary not is allowed to appoint the respective heads of Courts? Providing positive and affirmative answers to these questions as they relate to appointment of Administrative heads of their Courts as opposed to removal or discipline of the said Heads of Court is a sure way of Curtailing Politics out of appointment of the most qualified person as Head of a Court of record. I state with all vehemence that politics be left for the political arena and jettisoned out of the judicial appointment. This may look like a far cry just like separating water from oil and being inside the river and expecting to remain dry. The reality that stare us in the face is the unwritten rule that no one becomes a CJN or a CJ except he is ‘acceptable’ to the president or Governor as the case may be despite the NJC guidelines and constitutional provisions.

Another quagmire is the call for nomination of private lawyers for appointment to the Supreme Court bench and by extension the appointment of private lawyers to the office of Chief Justice of Nigeria. From a legalistic view, proponents and agitators for this transformation or change Mantra cannot be faulted. This view is supported by section 231 (3) of the CFRN 1999 which provide thus: “A person shall not be qualified to hold the office of Chef 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 fifteen years”.

Pursuant to this agitation, the then acting and now CJN, Walter Onnoghen wrote to the Nigeria Bar Association (NBA), requesting that it nominates eligible members of the Bar for consideration into the Apex Court bench. The NBA in response forwarded names of Nine[41]eligible candidates to the acting CJN for appointment as justices of the Supreme Court. The call has raised divergent views affecting the profession and the judiciary, while others see nothing wrong in the appointment, adding that in Britain, only those who are Queen’s Counsel (QC), an equivalent of Senior Advocate of Nigeria (SAN) are appointed into the High Courts. Others hold the view that the development would improve legal scholarship reasoning and that the blend or regular justices with those from the Bar would enrich adjudication at the Apex Court. While others agree that, it is not just unfair but demeaning and unjustifiable of Appeal Court Justices, some of whom have spent decades in the judiciary from high Court to the Appeal Court only to be told that a lawyer who has not held any judicial post is preferable. This, undoubtedly, will affect their dedication, morale and commitment as there is no guarantee of their promotion to the Supreme Court since lawyers can be appointed from the Bar.

While many justices of the higher courts are however, opposed to the new proposal although choosing not to express their opposition publicly,[42] have decided to block the idea by not recommending the selected lawyers to the National Judicial Council (NJC) using the extant Revised NJC Guidelines for the appointment of Judicial officers of all superior Courts of Record in Nigeria 2014 which require justices of the Supreme Court and the Court of Appeal to write an assessment for whoever seeks appointment into the appellate Courts[43].

While I do not see anything wrong in appointing private lawyers from the Bar to the Bench, I make bold to call for caution in that, it will create a wrong impression contrary to the tradition of the legal profession that any Senior Advocate in Nigeria is better suited than a serving High Court Judge or a justice of the Court of Appeal and more knowledgeable, as judge of the High court cannot be automatically appointed straight to the Supreme Court. Comparatively, there exist professors and PhD holders that join the Bench at the courts below and have risen by dint of hard work to the Supreme Court. What then stops the SANs from applying to join the Bench at the Courts below?

Secondly, I make bold to assert that, as far as Heads of Courts of Records are concerned, appointing someone from the Bar to Bench whether to the Supreme Court or court of Appeal is different from appointing him or her to a leadership position while on the Bench. Purposeful interpretation of sections 231 (1) of the 1999 constitution and the Rules of NJC, one (not necessarily based on seniority) must first become a justice of the Supreme Court before he or she is appointed the Chief Justice of Nigeria and mutatis mutandis be appointed the president of the Court of Appeal or Chief Judge of the Federal High Court or State High court or President of the National Industrial Court (NIC) as the case may be.

 

 

5.1    Observations

The 1999 constitution (as amended) is lacking exhaustive procedure and criteria for the appointment of who head a court of record in Nigeria. There are substantive and procedural loopholes in the constitutional provisions relating to such. Emphasis on meritocracy are relegated to mediocrity and technocracy as well as quota systems and federal character. The constitution therefore, needs to strengthen the conditions of appointment with clear provisions that tilt towards merit than seniority as presently enshrined. The constitution further needs to provide subtle procedures to be followed in the appointment of substantive Head of court and clear procedure for the appointment of Acting Head of Court in deserving instances. The promulgation of the 2014 Revised Guidelines for the appointment of judicial officers in Nigeria has ushered in more challenges than prospects. The guidelines have not clearly spelt out desired merit criteria creditably as done in the United States of America. Aside, it is doubtful if guidelines can alter or contradict constitutional provisions as envisaged under the supremacy provisions of Section 1(1) of the constitution 1999 The guidelines have in several paragraphs contravened and contradicted the provisions of the 1999 constitution (as amended) and have ended up creating new problems, among which is Rule 4 (4) (e) of insertion of knowledge in Arabic language and grammar for candidate to the office of Grand Kadi(being Head of a Court)  and kadis of a Sharia Court of Appeal. This provision is akin to  amending constitutional provisions and adding an additional educational requirement where the constitution have not so provided for that, a person to be appointed to the sharia court of Appeal shall be knowledgeable in Arabic( a qualification not prescribed by the constitution).

5.2         Recommendations

  1. There is the need to amend the provision of section 231 (1), 238 (1), 250 (1), 256 (1), 261 (1), 266 (1) 254 (A), 271 (1), 276 (1) and 281 (1) of the Constitution of Nigeria 1999 (as amended) to strip the President/Governors of the power of appointing the Heads of Courts of Records. The power of appointment of the various Heads of Courts should be vested in the National Judicial Council as the apex and supreme authority established for the appointment and discipline of judicial officers. The exercise of the power should however be subject to the recommendations of the Federal/State Judicial Service Commissions. This amendment will no doubt create the desired effect intended in the provisions of section 153(1) and 158(1) of the Constitution as well as promote the true spirit of the rule of law and independence of the Judiciary.
  2. The provision of section 5 Part II of the Third Schedule to the Constitution which include the Attorney-General of the State as a member of the State Judicial Service Commission should also be amended in the true spirit of clothing the judiciary with its independence as far as appointment and discipline of judicial officers is concerned.
  3. The 2014 Guidelines and Procedural Rules for the appointment of Judicial officers of all superior courts of Records should be made an integral part of the Constitution so as to give it the desired force of law beyond been a mere guideline which provisions cannot supersede the provisions of the Constitution.

 

 

[1]  Section 6(5A-I) of the Constitution 1999 (as amended).

[2]   Section 2 of the Constitution (Third Alteration) Act, 2010.

[3] Cambridge English Dictionary.  p.1011.

[4] See Black’s Law Dictionary 8th Edition.

[5] Chief Yemi Okulaja (2015) Nigeria: Legal Profession operates on Seniority. www.dailytrust.com assessed 2nd March, 2017.

[6]  Obo Effanga, Facts and Conspiracy Theories about CJN Appointment. Punch Newspaper of 27/02/2017. P. 4.

[7]  Nsobundu Chuks “Make Chief Justice of Nigeria appointment according to law and not seniority”www.thenigerianlawyer.com. Accessed 2nd March, 2017.

[8] Afe Babalola (2017) Appointment of Chief Justice of Nigeria: Matters arising. www.vanguardngr.com. Assessed 2nd March, 2017.

[9]  Obo Effanga, Op. Cit. P 6-8.

[10] See Section 230 (2) (a) 1999 CFRN.

[11] See section 231 supra.

[12] See s. 231 (3).

[13] Section 231(4).

[14]  See s. 238 (1).

[15]   Ijohor, A.A “Appointment of Judicial Officers to the Superior Courts of Benue State” in Valley of Decisions (Being Essays in Honour of Justice Iorhemen Hwande)(Ibadan:Safari Books Ltd) p.344.

[16]   Ibid.

[17]   Ibid.

[18]   Ibid.

[19]   Ibid.

[20]   Third schedule to the constitution of Nigeria,1999

[21]   Section 153 of the Constitution.

[22]  Section 271 supra.

[23]  Unreported Suit No. FHC/PH/CS/421/2013.

[24]   Adangor Z op. Cit.

[25]  Ibid.

[26]  See section 231 (1), 238 (1), 250 (1), 256 (1), 261 (1) and 266 (1) of the 1999 Constitution.

[27]   2014 Revised NJC Guidelines and Procedural Rules for the appointment of Judicial Officers of All Superior Courts of Records in Nigeria.

[28]  Per Justice Mahmoud Mohammed “Judges Now to be appointed in Advertisement”. Thisday Newspaper 15/05/2015.

[29] Article 1, section 3, clause 6.

[30]   Ibid.

[31]   Note that it is Associate Justices of the Supreme Court of United States and not Associate Justice of the United States.

[32]    Todd E “Choosing a Chief Justice: Presidential Prerogative or job for the Court?”(2006) Journal of law and politics 22:231.

[33]   Seniority as Norm to appoint India’s Chief Justice is a Dubious Connection.

http://www.lexsite.com/services/network/scba/history.shtml accessed on 9/9/2017

[34]   Section 7

[35] (2013) 2 NWLR (pt 1337) 1 pp 24-26.

[36] Adangorop.cit p75.

[37] Mohammed Bello adoke SAN, the then AGF chose to play ‘the black sheep’ Vanguard Newspaper of 06/06/2012.

[38] IkechukwuNnochir “Jonathan v Salami:why Adoke.

[39] Per J.B. Daudu SAN, NBA National President.

[40] Lord Denning, what Next in Law (Landon: Butterworth 1982) p.310 see also NWabreze B.O. Military rule and Constitutioalism in Nigeria (Lagos: spectrum Law publications, 1992)p23.

[41] Dr. OlisaAgbakoba SAN, Anthony IkemefunaIdigbe, SAN, YunusUstasUsman SAN, BaatundeFagbohunlu SAN, MiannayaAjaEssien SAN, Awa Uma Kalu SAN, Professor Awalu Hamish Yadudu, TajudeenOladoja and AyubaGiwa.

[42] Tobi Soniyi “Disquiet among Judges  over proposals appointment of Lawyers to S’Court” Thisday Newspaper of 16th March, 2017.

[43] Pursuant to Rule 3(1) a and particularly (b) which provide “except a sitting Judge supports a lawyer’s application for appointment as a Judge, his application will fail”.

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