‘Federal Character Policy Is Undermining Supreme Court, Appeal Court’- BOSAN

At a valedictory court session organised by the Supreme Court in honour of Justice Abdu Aboki who bowed out of the apex Bench after attaining the mandatory retirement age of 70 years, senior lawyers in the country, under the aegis of the Body of Senior Advocates if Nigeria (BOSAN) seized the opportunity to express their grievances over the process of appointment of Justices of the Court of Appeal and the Supreme Court Bench.

Instead of showering encomiums on the retired Justice as has been the custom, the Senior Advocates told the appointing authorities, including the National Judicial Council (NJC) that the method of selection and appointment of Justices to the Appellate courts, “is unsatisfactory in the extreme”.

In a message through Chief Onomigbo Okpoko (SAN), who represented the chairman of the Body of Senior lawyers, Prof Ben Nwabueze (SAN) at the valedictory session, BOSAN said, the appointment process appears to have been designed and operated to exclude good and component lawyers in the legal profession from being appointed Justices of the appellate courts.

The NJC guidelines for the appointment of Justices to the Bench of the Appellate Courts, under the 1999 Constitution of the Federal Republic of Nigeria (as amended) state that;

The President of the Court of Appeal/Chief Justice of Nigeria (CJN) shall as the case may be, write to Heads of Courts, serving Justices of the superior Courts and President of the Nigerian Bar Association (NBA) asking for nomination of suitable Judicial Officers/Legal Practitioners for appointment as Justice of Court of Appeal/Supreme Court of Nigeria.

That, 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 and that, “He or 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).

And, 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.

The Chairman of the Judicial Service Commission/Committee shall place the provisional shortlist before the Judicial Service Commission/Committee for approval and upon such approval, with or without modification; the provisional shortlist shall become the final list and, in carrying out the provisional shortlisting exercise, the Chairman of the Judicial Service Commission/Committee shall take into consideration as much as possible, professional expertise and competence, including in the case of appointment of Judges from the High Court to the Court of Appeal and Justices of the Court of Appeal/Chief Judges/Legal Practitioners/academicians to the Supreme Court, the quality of judgments and performance and demonstration of judicial skills of the Judge; and in the case of appointment from the Bar, evidence of six contested cases in the last five years; sound knowledge of law, seniority at the Bar and or the Bench, 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.

Rule four of the guidelines says;

The Chairman of the Judicial Service Commission/Committee shall forward or direct the Secretary of the Judicial Service Commission/Committee to forward to every shortlisted candidate NJC Form ‘A’, which shall be completed and returned to the Chairman by the candidate, together with all necessary attachments specified.

The Chairman shall then table before the Judicial Service Commission/Committee for its consideration a memorandum on each of the short-listed candidates.

In considering the candidates, the Judicial Service Commission/Committee shall take into account the fact that Judicial Officers hold high office of State and occupy an office carrying enormous powers and authority.

Accordingly, the NJC shall ensure that Judicial Officers who are appointed to the superior Courts are of good character and reputation, diligence and hard work, honesty, integrity and sound knowledge of law and consistent adherence to professional ethics.

Other considerations are, active successful practice at the Bar, including satisfactory presentation of cases in Court as a Legal Practitioner either in private practice or as a Legal Officer in any Public Service; Satisfactory and consistent display of sound and mature judgment in the office as a Chief Registrar or Chief Magistrate;

Credible record of teaching law, legal research in a reputable University and publication of legal works.

Candidate for the high office of Judicial Officers of the Superior Courts of Record shall be disqualified and shall not be recommended for appointment if found to have been involved in:- canvassing or lobbying for the appointment directly or indirectly in any form and/or through any person or persons, such as but not limited to, politicians, traditional rulers, public officers or other Judicial Officers; bad behaviour, whether in or out of Court; display of lifestyle that indicates that the candidate has been living above his/her means and any act of dishonesty or corruption or corrupt practice either, on behalf of himself or of any other Judicial Officer or professional colleague, among other considerations.

Upon compliance with Rules 1-4 of these Rules, the Chairman of the Judicial Service Commission/Committee shall advise, or as the case may be, recommend to the NJC by way of memorandum, which shall conclude with a clear declaration that the NJC Guidelines and Procedural Rules have been complied with strictly and fully.

The memorandum must state whether any of the shortlisted candidates had, on any previous occasion, been presented to the Council for recommendation for appointment as a Judicial Officer and, if so, contain particulars of such earlier presentation, including date of submission and decision of the Council on such earlier occasion or occasions.

The memorandum shall be addressed to the Chief Justice, who doubles as the NJC Chairman or Secretary and the Secretary, after consultation with the Chief Justice/Chairman may not put such memorandum on the agenda for consideration by Council unless if it has been received not less than 30 clear days before a scheduled meeting of the Council.

The memorandum shall contain justification for the number of Judicial Officers sought to be appointed.

Under rule six, all the judicial officers shortlisted shall undergo an interview to be conducted by the NJC and the result of the interview shall form a major part of the decision on the candidate’s suitability for the judicial office for which he or she has been interviewed.

Necessary charge?

But, the Body of Senior Lawyers, which observed that the number of Justices of the Supreme Court has reduced to 13, with the retirement of Justice Aboki said, the filling of the vacancies at the apex court must not be done on the basis of replacement, which has been the usual practice.

The senior lawyers said, the appointment process has been designed and operated to exclude good component lawyers in the legal profession and that the appointing authorities appear to have established a policy that the vacancies created by exit of Justices of the appellate courts are filled by candidates from the state of the vacating Justice only, not withstanding the availability of known better candidates from other states.

The body, while noting that its suggestions are designed to strengthen the administration of justice, promote and enhance the time honoured claim that the judiciary remains the last hope of a common, is of the view that, appointment of Justices on the basis of replacement cannot produce the best of lawyers into the appellate courts in the country.

It added that, there was no justification to exclude good, competent and available candidates from the Bar from appointment to the Supreme Court and the Court of Appeal Bench.

The submission of the Body of senior lawyers, according to Okpoko is that the policy of replacement of the retiring Justices from their place of origin is not sound and should be discarded, explaining further that, “the policy of geographical spread in public service and in public service appointment is acknowledged today, to be the foundation for the mediocrity and incompetence in some areas of the public service of our nation.”

It further reasoned that, “the risk and dangers of mediocrity and incompetence in the Nigerian Judiciary is too grave to permit by the policy of replacement or exclusion. The theory of replacement cannot bring about the best that is in us in the legal profession.”

Time for NJC to look beyond geography —Nwabueze

Okpoko, in delivering Nwabueze’s message to the gathering, said appointing authorities appear to have established a policy that the vacancies created by exit of Justices of the appellate courts are to be filled by picking a candidate from the state of the vacating Justice only, notwithstanding the availability of known better candidates readily at hand from other states or local government areas in case of Judges at trial courts.

The consequence of the policy, according to BOSAN is that, the country, the citizens, foreign and local business men and women who use and are expected to resort to the courts of law for resolution of their problems in Nigeria, are denied the opportunity of having their cases considered and decided by Appellate courts manned by the best legal minds the nation can produce at any time.

This, the body said, is a very sad reflection on the nation and it’s judiciary.

“The policy of geographical spread in public service and in public service appointment is acknowledged today, to be the foundation for mediocrity and incompetence in some areas of the public service of our nation. The risk and dangers of mediocrity and incompetence in the Nigerian Judiciary is too grave to permit by the policy of replacement or exclusion. The theory of replacement cannot bring about the best that is in us in the legal profession” BOSAN kicked.

It, therefore, submitted that the policy of replacement of the retiring Justices from their place of origin is not sound and should be discarded, even as it expressed its concern of the appointing authority’s resistance or rejection of appointing appellate Justices directly from the Bar as is the practice in other countries.

“Our advocacy in this direction is not a selfish one. The NJC knows that there are sound, honest and hard-working lawyers in the ministry of Justice, in academia and at the private Bar. There is a sufficient pool of good people in this circle that can enrich the work of the Supreme Court and the Court of Appeal. BOSAN does not see any justifiable and arguable opposition against the direct appointment of this class of candidates available for appointment in the Supreme Court and the Court of Appeal”.

The senior lawyers said, a qualified Justice can be appointed but, that does not warrant the exclusion of candidates outside the Bar, on the ground that he was not a Judge of either the Court of Appeal or the High Court and urged the CJN and the NJC to look into the matter favourably, noting that there is no need to discriminate against members of the Bar in the appointment of Justices of the Appellate courts.

In his speech, the CJN, Justice Olukayode Ariwoolaa said, appointment of Justices to the Supreme Court Bench has become necessary as the number of Justices has dropped to 13.

He said, a single drop in the number of Justices at the Supreme Court brings about sudden increase in the workload, as the inflow of appeals to the court is ever on the increase due to the highly litigious nature of Nigerians.

It’s time for merit–ex-Supreme Court Justice.

Justice Aboki (rtd), in his speech, also urged the Federal Judicial Service Commission and the NJC to place greater premium on merit than national character and other primordial considerations in the selection and appointment of judicial officers, adding that the failure to accord priority to merit has the effect of demoralizing excellent and hard-working judicial officers.

On his part, the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), said the federal government will work with the judiciary in ensuring that the vacancies existing in the Supreme Court Bench are filled as soon as practicable, in anticipation of expected surge in numbers of cases from the 2023 general elections.

 

 

 

NIGERIAN TRIBUNE