Nigeria: SANs Hail Buhari's Renewal of Appeal Court President's Acting Appointment

1 June 2020

Some senior lawyers at the weekend defended President Muhammadu Buhari's decision to renew the appointment of Justice Monica Dongban-Mensem as the Acting President of the Court of Appeal.

They faulted claims that the president violated constitutional provisions by renewing her acting appointment.

The president in March, following the retirement of Justice Zainab Bulkachuwa, had appointed Dongban-Mensem as acting president of the court pending the appointment of a substantive president.

Her appointment, according to constitutional provisions, should not exceed three months.

She was appointed into the post being the most senior justice of the Court of Appeal at the time of the retirement of Justice Bulkachuwa.

The National Judicial Council (NJC), the body that oversees the appointment as well as the discipline of judicial officers had in late April in line with the law, recommended Justice Dongban-Mensem to Buhari for appointment as substantive president of the Court of Appeal.

With barely a week to the expiration of the acting capacity tenure, Buhari on Friday renewed her appointment for another three months, rather than forward her name to the Senate for confirmation, fuelling speculation that she may not be presented to the Senate for confirmation for the substantive post.

But four senior lawyers, who spoke to THISDAY on the issue, dismissed such speculation as baseless, saying that the president has not gone outside the law by renewing her appointment for another three months since it was recommended by the NJC.

According to Mallam Ahmed Raji (SAN), Buhari acted within the provisions of Section 238(5) of 1999 Constitution (as amended).

Section 238(5) reads: "Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment and the president shall not re-appoint a person whose appointment has lapsed."

But defending the president, Raji said: "It opens with 'except on the recommendation of the National Judicial Council... ..' The implication of the above quote is that the president may appoint a justice of the court to perform the functions of the president of the court more than once for a term not exceeding three months at a time if the National Judicial Council so recommends.

"Unless it can be shown that the NJC did not recommend the reappointment, it is difficult to allege any breach. There is a rebuttable presumption that the reappointment was made pursuant to a recommendation of NJC."

He also dismissed speculation that Justice Dongban-Mensem may not be the choice of the president for the position, saying "the president is entitled to the benefit of the doubt that the necessary checks are being conducted to avoid errors."

"The office of the President of the Court of Appeal is a very important one. I agree there should not be too much delay, most especially when the recommended appointee is not new in the system and is eminently qualified," he added.

Another senior lawyer, Mr. John Baiyeshea (SAN), also described Buhari's action as being in order as it was in consonance with provisions of the constitution.

Baiyeshea expressed confidence that Justice Dongban-Mensem would be appointed as substantive president of the appellate court.

"I verily believe that before the end of second acting appointment necessary, steps will be taken by President Buhari to forward her name to the Senate for confirmation as substantive president of the court.

"The other suggestion about preference of another justice of the court for appointment as President of the Court of Appeal is at best speculative.

"The Acting. President of the court is the most senior justice of the court. She has paid her dues and she has done well over the years just as the immediate past president of the court, Justice Bulkachuwa, was the most senior justice when she was appointed; that's the same situation here. There can't be any discrimination.

"We are all Nigerians, and we have an equal stake to all positions. Besides, I'm not aware of any contrary or adverse recommendation from the NJC that will prevent Justice Dongban-Mensem from being appointed as the President of the court. So, let's wait and see," he said.

For Mr. Dayo Akinlaja (SAN), "the renewal or extension of the acting appointment is not unconstitutional and is allowed by virtue of Section 238(5) of the constitution. Since the first appointment has not lapsed, it is in line with the constitutional provision to renew the acting appointment.

"The position would have been different if the initial period of three months had expired."

Akinlaja explained that since the first three months took effect from March 6, a renewal is done within three months of that time is not improper and "the renewal can continue to be done as long as it suits the president to do it within the running three months."

"It can only be a matter of speculation that the renewal of the acting capacity is an indication that the president is not minded to confirm the appointment.

"There is in my humble view no basis for such speculation bearing in mind that the president is allowed by the constitution to do what he has done. The instructive legal position here is that where a person has a right to act in a particular way, the motive for so acting is of no moment in law. That being so, I believe it is imperative for us to eschew speculation and keep our fingers crossed while the acting capacity lasts," he added.

Another senior lawyer, and President, Centre for Socio-Legal Studies (CSLS), Prof. Yemi Akinseye-George (SAN) told THISDAY that "I don't know of the theories behind the delay in confirming the appointment of the AG PCA, Hon. Justice Monica Dongbam-Mensem.

"But what I know is that she has performed brilliantly well during her acting appointment. She has led the court admirably. Building on the enviable records of her predecessor; she has taken the court to great heights. "She has vigorously decongested the dockets of the court. It will be a great disservice to the nation in general and to the justice system, in particular, to further delay her confirmation.

"She needs to be able to settle down to the urgent tasks of the court. All hands must be on deck to confirm her appointment before the expiration of her second acting appointment."

In his own contribution, an Abuja-based legal practitioner, Mr. Steve Ekeh, also noted that the president did not violate the law by extending the acting period.

He, however, faulted the president for always delaying the appointment of judicial officers.

"It is unfortunate that when it comes to appointing heads of superior courts and forwarding their names to the Senate for confirmation, the president does not have a record of promptness.

"We saw the case of Justice Onnoghen. It took public outrage and the acting President to have Onnoghen's forwarded to the Senate for confirmation. In the present case of Justice Monica Dongban-Mensem, the scenario is playing out.

"She has been on acting capacity for three months, which has elapsed without the president forwarding her name to the Senate for confirmation.

The neglect, reluctance or failure of the president to forward her name to the Senate within the period allowed by the constitution is capable and indeed fuelling speculations in some quarters that the president is sectional or biased, especially when one considers the case of Justice Onnoghen and the present case and juxtaposes it with the case of the present Chief Justice of Nigeria.

"Having said that, it is my view that the reappointment and forwarding of Justice Dongban- Mensem to Senate for confirmation is not caught up by section 238(5) of the constitution. This is so if the National Judicial Council had recommended her to the president for appointment as president of the Court of Appeal, which l believe is the case.

"Therefore, the failure of the president to forward her name for confirmation within the period allowed by the constitution would not affect her reappointment and confirmation by the Senate.

Section 238(5) creates an exception to section 238(4). Under subsection (5), where the president has made an appointment pursuant to subsection (4), that appointment will abate after a period of three months and the person shall not be reappointed except the person was recommended to the President by the NJC. "Since she must have been recommended by the NJC, she enjoys the exception created by section 238(5)," he stated.

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