The Nigerian Bar Association (NBA) has nominated nine lawyers, including six Senior Advocates of Nigeria (SANs), for appointment as Justices of the Supreme Court at the instance of Acting Chief Justice of Nigeria (CJN) Justice Walter Onnoghen. 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. ADEBISI ONANUGA sought lawyers’ views.
It is a rare occurence in the Judiciary. The late Dr Taslim Olawale Elias was ap- pointed 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.
The nation seems ready to tread that path again. Following the request of the Acting CJN, Walter Onnoghen, the Nigerian Bar Association (NBA) has nominated nine lawyers, including six Senior Advocates of Nigeria (SANs), for appointment as Justices of the Supreme Court (JSC). Who will make it among them? Will the process be seen through or aborted? These are some of the questions as lawyers are divided on the issue.
Those who made the list are a former Nigerian Bar Association (NBA) president Olisa Agbakoba (SAN), Chief Anthony Idigbe (SAN), Yunus Usman (SAN), Babatunde Fagbohunlu (SAN), Miannayaaja Essien (SAN), Prof Awa Kalu (SAN), Prof Awalu Yadudu, Tajudeen Oladoja and Ayuba Giwa.
The Lagos Branch of the NBA had a stormy session at its monthly meeting over the matter on the ground that due process was not followed. It also alleged that NBA branches were not consulted before the nominations were made.
Some members asked Justice Onnoghen to suspend the idea. Some stormed out when a motion moved on the issue was not voted on.
Appointment procedure
in the United Kingdom
According to information on the website of the Judicial Committee of the Privy Council of the Supreme Court of the United Kingdom, the procedure for appointing a Justice of the Supreme Court of the United Kingdom, for instance, is governed by Sections 25 to 31 and Schedule 8, of the Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013.
Section 25 of the 2005 Act sets out the statutory qualifications for appointment. The qualifications are: “Applicants must have held high judicial office for at least two years. (‘High judicial office’ is defined to include High Court Judges of England and Wales, and of Northern Ireland; Court of Appeal Judges of England and Wales, and of Northern Ireland; and Judges of the Court of Session).
“Alternatively, applicants must satisfy the judicial-appointment eligibility condition on a 15-year basis, or have been a qualifying practitioner for at least 15 years.
“A person satisfies the judicial-appointment eligibility condition on a 15-year basis if he has been a solicitor of the senior courts of England and Wales, or barrister in England and Wales, for at least 15 years; and has been gaining experience in law during the post-qualification period.
“A person is a qualifying practitioner if he is an advocate in Scotland or a solicitor entitled to appear in the Court of Session and the High Court of Justiciary; or he is a member of the Bar of Northern Ireland or a solicitor of the Court of Judicature of Northern Ireland.
“The meaning of ‘gaining experience in law’ is set out in Section 52(2) to (5) of the Tribunals and Enforcement Act 2007 and relates to a period engaged in law-related activities.”
Constitutional requirements
Section 230(2) of the 1999 Constitution stipulates that the Supreme Court shall consist of: (a) the Chief Justice of Nigeria; and (b) such number of Justices of the Supreme court, not exceding 21, as may be prescribed by an Act of the National Assembly.”
Section 231 (1) stipulates: “The appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.”
Section 231 (2) states: “The appointment of a person to the office of a Justice of the Supreme Court shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the Senate.
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 practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”
Lawyers speak
Some observers see the nomination of some lawyers for appointment as JSCs as a negation of the tradition of succession by seniority and one capable of causing latitude amongst senior members of the second level 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.
Some analysts believe such appointments will add vibrancy to the Supreme Court.
Those who spoke on the issue are Justice Ebenezer Adebajo (rtd), Presidential Advisory Committee Against Corruption (PACAC) chairman Prof Itse Sagay (SAN), Mr Sylva Ogwemoh (SAN, constitutional lawyer Sebastine Hon (SAN), Mr Kunle Ogunba (SAN) and Pa Tunji Gomez.
Sagay supports the decision of the Acting CJN to appoint members of the Bar to the apex court. According to him, a person can be appointed CJN or JSC directly from outside the Bench.
To him, a law teacher or legal practitioner who had been called to the Bar for at least 15 years can be CJN under the Constitution.
Sagay said it was wrong to say that “the Constitution made the CJN’s appointment a matter of seniority among the JSCs”.
He argued that appointing JSCs on the basis of their seniority was not a constitutional requirement, pointing out that it was the NJC, and before it, the Federal Judicial Services Commission, that embraced the seniority syndrome.
Sagay explained that appointment by seniority has been in practice since 1979, adding that the Constituttion gives the appointing authority the leeway to make appointments on merit rather than on mere seniority with all the baggages and negatives that could be attached to any particular, most senior Justice.
Hon said the Constitution was clear on the baseline requirement: that a person would be qualified for appointment as a JSC if he has been qualified as a legal practitioner for at least 15 years.
Therefore, there is no question of such person being on the Bench before he will be so qualified, he said.
“I prefer to go with the Constitution than allow sentiments to becloud my sense of judgment. I also remember that Hon. Justice Augustine Nnamani was a Senior Advocate of Nigeria and he was appointed straight to the Supreme Court Bench.
“So, even talking of precedents, we already have one there. And come to think of it, Justice Nnamani, now of blessed memory, remains one of the best brains on the Nigerian Bench.
“I, therefore, go with the Acting CJN on this. Many previous CJNs, to my knowledge, toyed with this idea and even took unsuccessful steps in that direction. If this one succeeds, the Acting CJN would have achieved a great deal,” Hon said.
Opposing views
But, Justice Adebajo said there was no where in the world where lawyers were appointed from the Bar into the Supreme Court or the Court of Appeal bench.
The appellate courts are manned by people with substantial and adequate experience, he said.
“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,” he said.
Ogwemoh, who noted that 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, sounded a note of caution. He said even though the constitutional requirement for eligibility is 15 years post-call, utmost care must be exercised.
His words: “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.”
Ogwemoh recalled 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 practising 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.”
Ogwemoh said rather 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,” he said.
Ogunba believes it can kill the morale of judges and justices of the Court of Appeal who had been working towards being elevated.
He said: “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.
“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 slots.
“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,” he argued.
Pa Tunji Gomez shared in the views expressed by Ogunba. Gomez described the development as demeaning and unfair treatment of the Apeal 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, 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.”
