In this report, Vanguard's Law and Human Rights examines two notices dated June 14 and June 19, 2023, respectively, issued by the Chief Justice of Nigeria, CJN, Justice Olukayode Ariwoola on his request for fresh nomination for consideration for appointment into the Supreme Court at a time Nigerians were waiting for the National Judicial Council, NJC, to transmit the list of recommended justices of the apex court to President Bola Tinubu and argues that the language of the notices appears to have sparked confusion in the legal community particularly regarding the fate of 29 Appeal Court justices nursing ambition of elevation to the apex bench.
Background
On June 14, 2023, the CJN, Olukayode Ariwoola, requested the President of the Nigerian Bar Association, NBA, Mr. Y. Maikyau, SAN, and the President of the Court of Appeal, Justice Monica Dongban-Mensem, to nominate suitably qualified candidates for consideration for appointment into the Supreme Court.
The number one judicial officer communicated the request by a notice. The notice declared eight seats vacant on the Supreme Court bench.
Section 231(3) of the 1999 Constitution (As amended) 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 15 years.
The notice on the appointment of justices of the Supreme Court explained the distribution of the slots.
Specifically, Justice Ariwoola explained that of the eight vacant seats, suitably qualified legal practitioners from the South-East, the South-West, and the North-Central would fill two slots each (making six) while qualified candidates from the South-South and the North-West would fill a slot each.
By implication, even if there are suitably qualified candidates from the North-East, the sixth geo-political zone in the country, such candidates would have to wait until a justice of the Supreme Court from the zone quits the bench.
While Maikyau and Justice Dongban-Mensem were still processing the request, Chief Justice Ariwoola on June 19, 2023, sent an updated notice to the NBA President and other heads of court to declare two additional openings on the Supreme Court bench.
By the fresh notice, the total number of slots sought to be filled on the apex court bench has now jumped from 8 to 10. The updated notice also indicated how the available 10 declared openings would be filled.
Specifically, under the new arrangement, the vacant slots would be filled on regional basis thus: South-East (two); South-South (one); South-West (one); North-Central (three); North-East (one) and North-West (two). The new notice redistributes the available slots to the country's six regions, correcting the imbalance in regional representation that would have resulted from the previous plan.
The President of the Nigerian Bar Association, NBA, Yakubu Maikyau, in an email to lawyers last week Thursday said the available slots are now open to qualified candidates from all the six geo-political zones.
With CJN's new notice, what happens to the shortlisted Appeal Court justices?
Vanguard reports that before June 14, 2023 when Justice Ariwoola issued the notice on appointment of justices of the Supreme Court, a process which commenced about two years ago during the administration of ex-Chief Justice Tanko Muhammad, had produced a shortlist of candidates at the Federal Judicial Service Commission, FJSC, level.
Specifically, it would be recalled that before the Chief Justice Tanko Muhammad resigned his position on June 27, 2022, the process of appointing justices into the Supreme Court had commenced and was already in top gear.
Vanguard recalls that Chief Justice Muhammad (as he then was) had on January 19, 2022 requested stakeholders including the NBA, to nominate suitable candidates for the said positions. He had promised the NBA that only six suitably qualified lawyers would be selected from a pool of applicants from five of the country's geopolitical zones.
Following this, the NBA had nominated 23 lawyers, including seven Senior Advocates of Nigeria, SANs, and two women, for the top job.
The CJN's proposal responded to years of pressure by stakeholders, particularly the Body of Senior Advocates of Nigeria, BOSAN, for its members and distinguished academics to be appointed to the topmost echelon of the nation's judiciary. The proposal was not implemented by successive CJNs since the tenure of Justice Muhammadu Uwais who served between 1995 and 2006.
However, after nominations were received, the Federal Judicial Service Commission headed by the out-gone Chief Justice Tanko had released a provisional list of candidates for consideration for the top job of Associate Justice of the Supreme Court.
The list which was sent to the Nigerian Bar Association for scrutiny contained 29 Justices of the Court of Appeal from five geopolitical zones.
None of the senior lawyers including seven SANs, that applied for the vacancies at the apex court was on the list. Judges shortlisted by FJSC for appointment into the Supreme Court bench
The candidates, all justices of the Court of Appeal, who made the list from the North Central zone are Justices Jummai Sankey, Stephen Adah, Sa'idu Hussain, Ridwan Abdullahi and Mohammed Idris, while the justices of the Court of Appeal who made the list from the North West Zone are Justices Ali AbubakarBabandiGumel, Tani Yusuf Hassan, Mohammed LawalShuaibu, Jamilu Y. Tukur and Balkisu Bello Aliyu.
Also, the candidates, all justices of the Court of Appeal, who made the list from the South East are Justices Uzoamaka Ndukwe-Anyanwu, Chidiebere Uwa, ChiomaNwosu-Iheme, Theresa Orji-Abadua, Obande Ogbuinya, Uchechukwu Onyemenam, Onyekachi Otisi, Ugochukwu Ogakwu, and Kenneth Amadi, while the justices of the Court of Appeal who made the list from the South South are Justices Moore Adumein, Biobele Georgewill, Frederick Oho, Dr. Abimbola Obaseki-Adejumo, and Ebiowei Tobi.
The justices of the Court of Appeal from the South West that made the FJSC list are Justices Oyebisi Omoleye, Tunde Omotoye, Habeeb Abiru, Peter OlabisiIge and Joseph Oyewole.
Vanguard recalls that top lawyers had protested the FJSC short list on the account that it did not have any name of sound lawyers and academics who showed interest in the bench.
The constitution allows appointment of qualified persons into the bench and not mere promotion of Justices of the Court of Appeal to the Supreme Court bench.
For instance, a Professor of Public Law, Prof Akinseye George, SAN, had said shortly after the FJSC list came out: "From all indications, it appears that for now, the Supreme Court does not want to open its doors for non-justices of the Court of Appeal. If you are not at the Court of Appeal, they don't want you there. That is the impression that I get, he said, adding that the list however cognized federal character."
The whole world was waiting for the NJC to play its role of picking the best from the shortlist when the mantle of leadership at the Supreme Court changed.
But notwithstanding the removal of former CJN, Justice Tanko, the NJC presided over by the new CJN, Justice Ariwoola continued with the appointment process.
NJC wraps up process to get Buhari's approval for new justices
Indeed, Vanguard's Law & Human Rights recalls that sometime in April, this year, less than six weeks to the expiration of ex-President Muhammad Buhari's eight-year tenure, a topjudicial officer and strong member of the NJC who preferred anonymityhad disclosed that a list of eight candidates to be recommended by the NJC to fill available vacancies on the Supreme Court bench, would hit the table of President Muhammadu Buhari in the next two or three weeks.
The reliable source had disclosed that the Council was wrapping up the process to enable President Buhari seek the assent of the senate required for his appointment of the top judicial officers before he left office on May 29, this year.
Vanguard reliably learnt that the NJC got the hint that President Buhari was willing to hand over a Supreme Court with full complement to his successor, Bola Tinubu.
Besides, the source said the exercise was necessary not only because the court was and still evidently overstressed following its increasing workload and the depletion of its workforce but also because the exercise was long overdue having commenced almost two years ago.
The source said it was more compelling to fill the slots because two of the 13 serving justices--Justice Musa Muhammad and Justice Amina Augie, would be retiring from the apex bench before the end of the year, a situation that would leave only 10 justices in the court.
Why Chief Justice Ariwoola's new notice sparks confusion
As the whole world was patiently waiting for the list of NJC to be fowarded to the new President, the CJN on June 14 and 19 issued notices on fresh nomination for consideration for appointment into the Supreme Court bench.
The notice was silent on what becomes of the shortlisted candidates for the top job.
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Efforts to get clarifications from the Supreme Court proved abortive as its Director of Information, Festus Awenerisaid he has no information on the matter.
An impeccable source at the NJC also told Vanguard that it was constrained to give a definite answer to the question referring this reporter to the Secretary of the FJSC, who could not be reached as at the time of filing this report.
But a top jurist confided in Vanguard that the new notice terminated the earlier process.
His words: "Have you not been following events? When Justice Walter Onnoghen was at the saddle? He wanted to appoint more justices into Supreme Court bench. He started the process but could not finish before he was removed from office.
"When Justice Tanko Muhammad who took over from Justice Onnoghen settled down, he started the appointment process afresh.
"Every CJN wants to be seen playing an active role in the appointment of those coming into that sensitive apex court.
"Besides, Justice Ariwoola has a listening ear. He wants to use the fresh process to address some of the concerns raised by stakeholders, particularly on absence of lawyers either in the private practice or the academia on the Supreme Court bench," he added.
The court presently has 13 serving justices.
The serving 13 justices of the apex bench are Justices OlukayodeAriwoola, Musa Muhammad, Kudirat Kekere-Ekun, Centus Nweze, Amina Augie, Uwani Aji, John Okoro, Lawal Garba, Helen Ogunwumiju, I.N. M. Saulawa, AdamuJauro, TijjaniAbubakar and Emmanuel Agim.
Of the 13 serving justices, three are from the North West, three are from the North East, one from the North Central, one from the South East, three from the South West and two are from the South South.
The demography of the top judicial officers showed that while two of them are due to retire during the year, one in 2024, two in 2026, one in 2027, three in 2028, two in 2029, another two will retire in 2030.
The fresh appointment process has commenced.
But what is left to be seen is how the new leadership of the court and Chairman of both the FJSC and the NJC, Justice Ariwoola would fill the available vacancies at the Supreme Court.
