DESPITE the provisions of the 1999 Constitution as amended, stipulating the length of time any person appointed in an acting capacity will serve as the Chief Justice of Nigeria (CJN), President of the Court of Appeal (PCA) or Chief Judge of Federal High Court (FHC), or states' High Courts, controversy still bogs down this issue as such appointments in some cases extend beyond the time-frame.Section 238 (4) and (5) of the 1999 Constitution as amended, on the appointment of an acting President of the Court of Appeal states: 'If the office of the President of the Court of Appeal is vacant, or if the person holding the office is for any reason unable to perform the functions of the office, then until a person has been appointed to and has assumed the functions of that office, or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Court of Appeal to perform those functions.'Sub-section (5) gives the time-frame: 'Except on the recommendation of the National Judicial Council (NJC), an appointment pursuant to 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.'Section 271 subsections (4) and (5), of the same Constitution repeated the same process as in section 238 sub-section (4) and (5), for the appointment of acting chief judges of states' high courts. The governors, by this provision, are enjoined to act according to the dictates of the content of this provision without any violation.One is yet to see a strict compliance of these provisions of the Constitution by either the President of the Federal Republic of Nigeria or the governors of the 36 states of the federation. For instance, the present Acting President of the Court of Appeal, Justice Dahaltu Adamu, is spending almost a year in office in acting capacity. He was appointed by President Goodluck Ebele Jonathan early last year following the suspension of the substantive President of the court, Justice Ayo Salami over a dispute between him and the former Chief Justice of Nigeria, Justice Aloysius Katsina-Alu.NJC has since reversed itself and asked the President to recall Salami to complete his tenure. But Jonathan is yet to comply with this recommendation thereby leaving Adamu to continue in office in acting status.Also in Abia State, the Acting Chief Judge of the state High Court, Justice Shedrack Obinna Nwanosike, is spending more than a year he was appointed by Governor Theodore Orji due to a dispute arising over the choice of the appointment of a substantive Chief Judge between the governor and the State House of Assembly on one hand, and some branches of the Nigerian Bar Association (NBA), in the state, on the other. In fact, the Aba branch of the association is already in court to stop the governor from appointing a substantive Chief Judge of the state, until all the issues surrounding its own input in the choice of the judge are resolved by the court. While the matter lasts in court, every one is put on a waiting game, leaving no option than for Justice Nwanosike to continue in office in acting capacity.This thorny issue in the state is what The Guardian sought clarifications from the Attorney General, Chief Ume Kalu. In his response he gave perspectives: 'The issue of leadership succession in the state High Court has been on for quite some time now. But what is happening in Abia is not novel. It has happened elsewhere. Normally, when there is a vacuum, there is always a tussle over who will occupy the office. But there is no straight jacket in terms of succession I must tell you in the judiciary. There could be a norm or convention at some levels like the Supreme Court or other jurisdictions where such matters have been resolved on the strength of seniority. But if you apply the law strictly, then you discover that there is no law that says that the most senior judge must occupy the office of the Chief Judge when it becomes vacant. This is what I have been telling my colleagues each time this issue comes up. If you look at section 271 of the Constitution it itemizes how a CJ emerges and what qualification he should have. In that provision, there is no way it stipulates that the CJ must be the most senior judge. The Constitution goes further to vest the appointing authority on the governor of the state.'He continued: 'You see, when there is a vacancy of the office of the CJ, the Judicial Service Commission (JSC) of the state will meet. At this meeting, nominations will be made among all judges. Let me also say this, that all judges of the state are qualified to be appointed, including legal practitioners who are 10 years at the Bar. This is what the law says. So, what we did in Abia State and what most states do, is sometimes, we look inwards to select from serving judges. When that is done, we vote and then, send the shortlisted names to NJC that will make recommendation of one person to the governor, who is vested with the appointing authority. In turn, the governor will submit the name to be appointed to the State House of Assembly for confirmation. Once this is done, the governor will swear in the CJ.''In Abia State the JSC met and nominated three names it sent to NJC. The first nominee got seven votes, the second, got five or thereabout. We sent their names in order of their scores, indicating same in our minutes. The NJC left the first and second nominees and picked the third nominee for appointment. The reason NJC gave for picking the third person was that the nominee is the most senior judge. The nominee was sent to the state House of Assembly and the House rejected her and refused to confirm her. This action of the House placed the governor in a state of helplessness because he cannot swear in somebody that is not confirmed by the House. What we did was to write to NJC, asking it to give us another name since the state Assembly has rejected the one it recommended. Surprisingly, NJC wrote back to us and said we must accept the nominee it has recommended or no other person. The governor complied again and sent the name a second time to the House. The House again rejected the name, this time stating reasons. The whole situation became stalemated.'On why this was the reason for the long acting period for the present Acting CJ, Kalu gave an insight: 'The Constitution in its wisdom, provides for an acting CJ in anticipation for a situation like this one that is playing out in Abia State. In Section 271(4), the Constitution clearly stipulates that the most senior judge should be appointed as an Acting CJ. This is instructive. Therefore, you cannot appoint someone else apart from the most senior person. In compliance of this provision, the governor appointed the most senior judge of the State High Court.Incidentally, the most senior judge, was the nominee recommended by NJC but rejected by the State House of Assembly. So, she was appointed. Again, the Constitution further gives clear instructions that the person in acting capacity must only occupy that office for only three months and must not be reappointed except through the recommendation of the NJC.Since we have not resolved the issue of the appointment of a substantive CJ, at the expiration of the three months for the first most senior judge, the next person to her was appointed. This is how we have been doing it since then. At the last count, we have had three acting CJs in the state. But somehow, the NJC has intervened and asked the governor to retain the one there now, Justice Nwanosike, until the issue of a substantive CJ is resolved. So you can see the reason why the present acting CJ has stayed this long.'Regarding the next step on the matter, the Attorney General hinted that fresh nominations have been sent to the NJC for its recommendation. According to him, only one, out of the first three submitted earlier made the list. His words: 'We have sent fresh nominations to NJC. I am optimistic that when the body sits on that, it will consider the list on its merit.But let me say this, that what is happening in Abia, has happened in Ebonyi State and in Enugu State. What is worrisome to me is that some of our colleagues do not look at the law when they are talking about this issue of appointment of a CJ. If the drafters of the Constitution want the most senior judge as the CJ, nothing stops them from amending the Constitution to reflect that. As AG I will abide by it and advise my governor accordingly.On how he can pacify the Bar in the state to drop its case against the appointment of a substantive CJ for the state, Kalu answered: 'The Bar has little or nothing to do with appointment of a CJ. No role is ascribed to the Bar in this regard, though the Bar is a stakeholder in the judiciary. It has every right to voice its opinion. But in voicing its opinion, it must look at the law.
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