Qualifications required for appointment as CJN

To constitutional lawyer and Presidential Advisory Committee Against Corruption (PACAC) Prof. Itse Sagay, the Constitution is clear on the appointment of the Chief Justice of Nigeria (CJN). The Senior Advocate of Nigeria (SAN) says the constitution only stipulates that the most senior ranking Justice of the Supreme Court (JSC) should be appointed in acting capacity when the CJN’s office is vacant. It does not state that the most senior ranking Justice of the Supreme Court should be automatically be appointed CJN.

I read with interest an article by Lawal Ogienagbon, entitled “Sound and Fury” at page 17 of The Nation newspaper of 9th February, 2017. There are some serious factual and legal errors in the article which need to be corrected.

First, let me quote the offending passage;

“It is given that the most senior Justice of the Supreme Court (JSC) takes the CJN seat on the retirement of the incumbent. This has been the practice for ages, but in 1972, the military deviated from the tradition to appoint the late Dr. Taslim Elias, the Commissioner of Justice and Attorney-General of the Federation, as CJN. Perhaps, in order to avert a recurrence in future, the framers of the 1999 Constitution stipulated the criteria for appointing the CJN in the social contract. The Constitution made the CJN’s appointment a matter of seniority among JSCs.”

The first and perhaps more serious error is the Constitutional one. It is NOT given that the most senior Justice of the Supreme Court takes the CJN seat on the retirement of the incumbent. On the contrary, by section 231(3), anybody who has been qualified to practice law for 15 years is eligible to be appointed Chief Justice of Nigeria. This means that by the present Constitution, the most junior judge in the Supreme Court can be appointed Chief Justice of Nigeria over all his seniors. Even a judge of the Court of Appeal or High Court can be appointed Chief Justice of Nigeria and this has happened before.

A person can be appointed Chief Justice of Nigeria directly from outside the judiciary. A Law teacher or legal practitioner, who had been called to a Bar for at least 15 years, can be Chief Justice of Nigeria under the present Constitution. It is therefore wrong for Ogienagbon to state as follows “the Constitution made the CJN’s appointment a matter of seniority among the JSCs”. This is utterly wrong.

It is the NJC and before it the Federal Judicial Services Commission (FJSC) that embraced this seniority syndrome. It is not a Constitutional requirement.

The second error relates to the age of the seniority syndrome itself. This has not been the practice “for ages” nor did it start in 1972, but in 1979, when the Hon. Justice Atanda Fatai-Williams was made Chief Justice of Nigeria, by former President Shehu Shagari. Before then, there had been several cases of people appointed straight to the position of Chief Justice of Nigeria either from outside the bench or from a position, junior in rank to the most senior ranking Justice of the Supreme Court.

In addition to the example of Dr. Taslim Olawale Elias who was appointed Chief Justice of Nigeria from his position as Attorney-General of the Federation in 1973, I can recall two other cases.

In 1958, the most senior Justice of the Supreme Court and indeed the acting Chief Justice of Nigeria, the Hon. Justice Olumuyiwa Jibowu, was superseded by his junior, the Hon. Justice Adetokunbo Ademola, who was Chief Justice of the Western Region. Adetokunbo Ademola was appointed Chief Justice of Nigeria on 25th April 1958 and his senior, Justice Olumuyiwa Jibowu, who was then acting Chief Justice of Nigeria was effectively demoted to replace Adetokunbo Ademola as Chief Justice of Western Region.

I can give another example of this phenomenon. On Tuesday 25th August, 1975, Sir Darnley Alexander, the Chief Judge of Cross River State, was appointed directly as Chief Justice of Nigeria over the heads of all the seating Justices of the Supreme Court, particularly over Justice Fatai-Williams, the most senior Justice.

In practice and in theory therefore, any lawyer can be appointed Chief Justice of Nigeria from outside the Supreme Court provided he has been called to a Bar for at least 15 years. Secondly, the issue of appointment by seniority is not a matter of law but a matter of practice since 1979. This gives the appointing authority the leeway to make appointments on merit, rather than on mere seniority with all the baggage and negative that could be attached to any particular, most senior Justice.