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Appointing Lawyers As Judges: Matters Arising

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The decision last year by the Chief Justice of Nigeria, Hon. Justice Walter Onnoghen, to appoint registered lawyers to the Bench, sparked off a great debate among legal practitioners. CHIDI NWACHUKWU (Abuja) in this analysis takes a look at the implications of setting such a precedent.

he Judiciary is very keen about precedents. Most of what obtains presently in the judiciary, derives from long standing precedents. Legal cases are usually determined on the basis of precedents, judicial decisions are often made based on precedents, and everything else that forms a part of the judicial processes and system are sufficiently founded on precedents.

This explains why during a trial in the court of law, the judge strictly ensures that the judgment he is going to deliver shares a very close resemblance with another erstwhile judgment that was ruled on a case whose facts are very similar to the one he is entertaining.

Unless he does this, his judgment may be discountenanced and his reputation marred. He may even be culpable for what is legally referred to as ‘Abuse of Court Process,’ if he takes decisions that do not conform to the laid down precedents governing it.

But recently, the Nigerian Judiciary has decided to set a precedent that may go down in history as the most unconventional decision it has ever taken; a decision that may alter the status of the Judiciary forever, and either make or mar it.

This same decision will shape the course of the future of the Nigerian Judiciary, and also have a ripple effect on the nation by extension. The decision in question is the one concerning the direct appointment of practicing lawyers to the bench; whether it would prove to be a veritable alternative to the age long style of appointment that follows a hierarchical order of gradual ascendancy from the Magistrates Court to the Supreme Court.

Legal practitioners are categorised into two major classes – the Bar and the Bench. The Bar comprises the lawyers who either appear in court to defend their clients, or perform other legal services such as registration of contracts and property management. The former kind of lawyers are referred to as Advocates, Attorneys or Counsels, while the latter kind are known as Solicitors. Whereas the Bench comprises the Judges who sit in court to give judgment on cases.

The Judges are civil servants who are appointed by the State to exercise jurisdiction over matters that are brought to court. They are paid by the State and are forbidden from engaging in any other businesses except the ones that pertain to their profession as members of the Bench.

In Nigeria, the highest appointment a member of the Bench can attain is that of the Chief Justice of the Federation, while a member of the Bar can be said to have reached the peak of his legal practice if he is conferred with the title of Senior Advocate of Nigeria (SAN).

The title of SAN distinguishes a lawyer who is so conferred from other lawyers who are not conferred with the title as a legal egghead whose opinion on legal matters must be held in high regard. The SAN enjoys some privileges that ordinary lawyers do not enjoy. For instance, his case is mentioned in court before that of an ordinary lawyer even if the case of the latter was filed before his. The reason for this seeming favouritism is to grant him the opportunity to argue his case to the end that the junior lawyers learn from his style of practice and wealth of experience.

Secondly, the senior advocates are privileged to land briefs that tend to pay far higher than the briefs accessible to ordinary lawyers. Their legal fees far outweigh the contingency and service charges of ordinary lawyers. They enjoy so many more privileges by virtue of their being senior advocates.

Attaining the enviable status of senior advocate requires that the lawyer who seeks it must have being in practice for at least 10 years. He must meet other stringent conditions and requirements before he is considered worthy of being conferred with the enviable title. The title is not his right, but a privilege that is handed him by the Legal Practitioners Privileges Committee (LPPC), implying that he may not still be given the title if the LPPC does not deem it fit to award him with it. That is why it is often referred to as a privilege, not an automatic right.

Many of the private lawyers who advocate in courts prefer to do advocacy because of the benefits that accrue to representing clients and getting judgments for them, or filing cases that tend to raise questions over the legal adequacy of certain government policies and decisions. They usually do not have interest in the Bench, as they tend to see it as restricting and limiting. So many private lawyers are very contented with their private practice and do not aspire to going to the bench, and there are yet a great number of those who desire very much to grace the Bench. It was based on this fact that the decision to incorporate private lawyers into the Bench was last year taken by the current Chief Justice of Nigeria, Honourable Justice Walter Samuel Onnoghen.

The CJN had called the attention of the Nigerian Bar Association (NBA) to his decision, and sequel to his request for indication of interest, the President of the NBA, Mr Abubakar Balarabe Mahmoud, dispatched electronic mails to all registered lawyers inviting the suitably qualified ones to indicate their interest in taking up appointments to the Bench. Though the decision is supported by the Constitution, there are yet so many dissenting voices negating the decision.

Many lawyers are of the opinion that appointing lawyers directly to the Bench, particularly the Supreme Court, rather than following the conventional process of appointing hierarchically through the rungs from the Magistrate Court to the Supreme Court, would inadvertently demoralise members of the bench who strongly believe that gaining ascendancy through the rungs of the ladder of practice is the perfect way to go.

Now, the legal compass to this issue can be taken from Section 231 (3) of the 1999 Constitution (as amended), which clearly supports the appointment of judges directly from the bar and states thus, “A person shall not be qualified to hold the office of the 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 qualified for a period of not less than 15 years.”

By this provision, the Constitution renders it sufficiently clear that appointment to the Supreme Court or to the Bench as the case may be, must not follow the age long hierarchy of appointments. It is only required that the person being appointed must have being in practice for at least 15 years, must have a sound knowledge of the law, and must have contributed immensely to the development of legal practice in Nigeria.

Now, while there is a cacophony of voices hailing the proposed move to appoint lawyers directly to the Bench, there is yet a significant number of legal practitioners who do not support the idea, including Senior Advocates. Chief Wale Babalakin SAN, for instance, is one member of the Inner Bar who strongly objects to such unhierarchical appointment.

His views are that such a privilege is reserved for very exceptional people, and that there are only very few of such people around. He said, “The fact that you are a brilliant lawyer doesn’t necessarily mean that you will be so exceptional as a Supreme Court judge.”

Speaking further, he argued that the proponents of such motion have taken precedent from the case of Hon. Justice Teslim Olawale Elias, who was appointed Chief Justice of the Supreme Court of Nigeria from the position of Attorney General of the Federation and minister of Justice in 1972, and insisted that Elias’ antecedents and track records were impeccable, unprecedented and excellent, being the reason he was able to escape the protocols.

His views contrast sharply with that of the chairman of the Presidential Advisory Committee Against Corruption (PACAC), Prof Itse Sagay, a constitutional lawyer and a Professor of Law, who thinks that a lawyer can be appointed Chief Justice of the Federation or a Justice of the Supreme Court directly from outside the Bench, in so far as the legal practitioner has been actively involved in practice for at least 15 years.

He said, “It is wrong to say that the Constitution made the CJN’s appointment a matter of seniority among the Justices of the Supreme Court. It was the Nigerian Judicial Council (NJC) and the Federal Judicial Service Commission (FJSC) that embraced the seniority syndrome.”

Mr Sabastian Hon, another senior lawyer, described the move to directly appoint lawyers to the Bench as having very good precedents. He cited the appointment of Hon. Justice Augustine Nnamani (JSC), a Senior Advocate of Nigeria to the Supreme Court, as a very good precedent.

Following the request for expression of interest, 89 lawyers among whom are Senior Advocates, applied for the slots, and only 9 out of the entire number were shortlisted for the 4 vacant positions in the Supreme Court.

Among these 9, are 6 Senior Advocates, and only 4 out of the 6 Senior Advocates will emerge as Justices of the Supreme Court. There are other considerations for appointments to the Court of Appeal and the Federal High Court. The Supreme Court by constitutional requirement, is supposed to comprise of at most 21 justices. But there are only 17 justices in it at present, with 4 short of the required number.

The 6 Senior Advocates who scaled through the preliminary screening include Chief Olisa Agbakoba SAN, a former president of the Nigerian Bar Association, Chief Anthony Idigbe SAN, Prof Awa Kalu SAN, a former Attorney General and commissioner of Justice of Abia State, Mr Yunus Usman SAN, Mr, Babatunde Fagbohunhu SAN, and Mr Miannayaaja Essien SAN.

The remaining three are Prof Auwalu Yadudu, Prof Tajudeen Oladoja and Mr Ayuba Giwa. Their names have since been sent to the National Judicial Council (NJC) by Justice Onnoghen for recommendation, and after which they would be appointed by the President, following their confirmation by the Senate.

Following the shortlisting of the names of the successful lawyers, controversy broke out among legal practitioners, particularly the Lagos based lawyers, who claimed that the process was marred by irregularities, they further claimed that enough notice was not given to as many lawyers as would have wanted to have their names shortlisted.

They insisted that a whole 3-months’ notice is usually being given to legal practitioners in the case of appointments to the Federal High Court, and therefore, faulted the recent shortlisting process for the Supreme Court, which they claimed was barely circulated within 3 weeks, with a clandestine motive to bar a large number of interested lawyers from partaking in the process. They have since called for the cancellation of the initial shortlisting, and asked the Chief Justice of Nigeria to ensure that a fresh process was carried out.

The newly appointed Senior Advocates of Nigeria turned Justices of the Supreme Court and members of the Bench, would be sworn in to service in the near future.



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