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Justices should stay on the beaten path

 The Court of Appeal, which is this country’s second highest court of law, has had no substantive  president since 2011 when Salami was placed on…

 The Court of Appeal, which is this country’s second highest court of law, has had no substantive  president since 2011 when Salami was placed on suspension following his refusal to apologise to former Chief Justice Aloysius Katsina-Alu over allegation that he made against him. The Salami case became one of the most notorious cases of in-fighting and allegations of sleaze at the highest level in the judiciary.  The matter ended up in court; but before it could be resolved, Salami retired from the judiciary three months ago having attained the mandatory retirement age of 70. While Salami was on suspension, President Goodluck Jonathan acted upon an NJC recommendation and appointed the Appeal Court’s most senior judge, Justice Dalhatu Adamu, to act as the president for a period of three months. This was extended several times until he served for a total 15 months. It was a most unusual situation because the framers of the Constitution never envisaged a situation where a vacancy could occur in the exalted post for that long. Ideally, three months was enough for NJC to recommend to the president a person for appointment as President of the Appeal Court. The president would then seek the Senate’s confirmation before the nominee is appointed and sworn-in.
However, Adamu was replaced as acting president by Justice Zainab Bulkachuwa, the court’s second most senior judge. Bulkachuwa’s three-month tenure was also renewed several times and the latest one is due to expire in February. Up till now, NJC has not nominated anyone to fill the substantive position even though it has been vacant for three months now. According to Daily Trust’s report, the stalemate was created when Chief Justice Mukhtar proposed to appoint Justice Kudirat Kekere-Ekun of the Supreme Court as President of the Appeal Court. This will amount to a major departure established norm, and would severely upset the tradition of seniority so well entrenched in the judiciary.
Justice Kekere-Ekun is an able judge. Yet, she is relatively junior to up to 10 Appeal Court judges. She was a judge of the Appeal Court until last July when she was elevated to the apex court. Promotion to the Supreme Court is not done strictly on seniority because each geopolitical zone has a quota in the court. Thus, an Appeal Court judge could leap frog over his or her seniors and go to the apex court. If Justice Kekere-Ekun were to return to the Appeal Court as its president, she would catapult over 10 judges who are her seniors in that court. Since its establishment in 1976, succession to the presidency of the Appeal Court has always been based strictly on seniority. Justice Mamman Nasir, the Appeal Court’s second most senior judge, became its president in 1978 following the death of its pioneer president Justice Dan Ibekwe. When Nasir retired in 1992, he was succeeded by the most senior judge, Justice Mustapha Akanbi. Justice Umaru Abdullahi was also the most senior judge when he succeeded Akanbi in 2000AD, and he was in turn succeeded by Justice Isa Ayo Salami, the next most senior judge in 2010.
The Supreme Court too has always followed the seniority tradition in the last 40 years. Since the retirement of Chief Justice Sir Darnley Alexander in 1979, all his successors, Justices Atanda Fatai-Williams, George Sowemimo, Ayo Irikife, Mohamed Bello, Mohamed Lawal Uwais, S.M.A. Belgore, Idris Legbo Kutigi, Aloysius Katsina-Alu, Dahiru Musdapher and Mariam Mukhtar have always been the most senior judges when the vacancy occurred.
This tradition has served the judiciary very well and has ensured for it stability and continuity in an otherwise sea of turmoil. If it were to depart from it now, it would further open the floodgates for politicians to cash in and meddle in judicial appointments. The Chief Justice and the National Judicial Council should think again before making this historic mistake.

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