In construing the provisions of the Constitution, or any Statute, the Court is allowed to bear in mind the history of the legislation. Parliament is presumed to have memory and in this respect, the purposive rule of construction comes handy. The Supreme Court per Hon. Justice Oputa, JSC (as he then was) in JONAH ONYEBUCHI EZE VS. FEDERAL REPUBLIC OF NIGERIA (1987) 2SC 237 @ 259 stated the law succinctly thus: “The court is not to be oblivious of the history of Act No. 13 of 1973. Although the Court is not at liberty to construe a Statute by the motives which influenced its enactment, yet, when the reason for the enactment is known, it is the duty of the court to read the Statute or Section of it in such a way as to fairly and accurately carry out that object of the Decree, Act or Statute and not with a view of extending the Section or Statute to something that was not intended”. On 1st January 1914, the Governor-General (Sir F. Luggard) on the occasion of the declaration of the Constitution of Colony and Protectorate of Nigeria spoke concerning the appointment of the occupier of the office of the Chief Justice of Nigeria in these Words: “It is obvious that there can only be one Chief Justice of the Supreme Court of Nigeria, and for this high office, the Secretary of State has selected Sir Edwin Speed, who has experience in both Northern and Southern Nigeria and has been much longer in Nigeria than his colleague Mr. Willoughby Osborne. It gives me great regret that, by force of circumstances, the country will lose the valuable services and ripe experience of Mr. Willoughby Orborne, and I am aware of the high estimation in which his services are held both here and at home. in saying good-bye to Nigeria he will have the satisfaction of feeling that he has discharged the functions of his high office with distinguished success. To His Honour Chief Justice Sir Edwin Speed I tender my congratulations on his appointment and I am confident that, while he holds his high office, the proud traditions of British, Justice will ever be worthily maintained.” The Richards Constitution i.e. the Nigerian Legislative Council order in Council 1946, and its predecessor of 1921, have no specific provisions on the occupier of the office of the Chief Justice. The Nigerian Constitution Order in Council 1960, (The Independence Constitution), Section 105 (1) – (5) makes provision for the appointment of the Chief Justice by the Governor-General, acting in accordance with the advice of the Prime Minister. (Underline mine for emphasy) In the Constitution of the Federation 1963, Section 112 (1) – (5) provides for the appointment of the Chief Justice of Nigeria. The Constitution provides that the Chief Justice of Nigeria shall be appointed by the President acting in accordance with the advice of the Prime Minister. The convention and understanding of the President accepting the advice remained till date. (Underline mine for emphasy) In the Constitution of the Federal Republic of Nigeria, 1979, Section 211 makes provision that the person to be appointed as the Chief Justice of Nigeria shall be “in the discretion of the President” subject to confirmation of a simple majority of the Senate. (Underline mine for emphasy) The learned Professor was of the opinion that the President “under normal circumstances, when he received the recommendation of the NJC, should, if he is satisfied with the nomination, pass on the name of the nominee to the Senate for confirmation.” With respect, the learned Professor missed the meaning and the intendment of the makers of the Constitution and indeed overlooked the processes laid down by the Constitution. The Constitution provides two institutions for the appointment of the Justice of the Superior Courts including the CJN. These are FJSC & NJC. The Institutional processes for the appointment of a Chief Justice of Nigeria begin from the Federal Judicial Service Commission (FJSC) and terminates with the National Judicial Council (NJC) and recommendation goes to the President. On the Federal Judicial Services Commission, the Constitution provides in Paragraph 12 of the 3rd Schedule provides as follows: “The Federal Judicial Service Commission shall comprise the following members:- a) The Chief Justice of Nigeria who is the Chairman b) The President of the Court of Appeal c) The Attorney-General of the Federation d) The Chief Judge of the Federal High Court e) The persons, each of whom has been qualified to practice as a legal practitioner in Nigeria for a period of not less than fifteen years, from a list of not less than four persons so qualified recommended by the Nigerian Bar Association and f) Two other persons, not being legal practitioners who in the opinion of the President are of unquestionable integrity. The functions of the Commission includes – advise the National Judicial Council in nominating persons for appointment to the office of: i) The Chief Justice of Nigeria ii) A Justice of the Supreme Court” The Judicial Service Commission has the power and duty to screen all the persons presented to it for Federal judicial appointment. It is equipped with resources to assess the health, mental ability, capacity and capability required for the office, the antecedents, integrity, career records and possibly security reports on the candidate. Infact the Commission is the clearing house for suitability and eligibility of all nominees. It is a Commission in which the Chief Law Officer of the Federation, the Honourable Attorney-General and Minister of Justice of the Federation is a member, an appointee and Chief Adviser of the President. The President has, in the Commission also two other members who are not legal practitioners, who in the assessment, judgment and estimation of the President “men of unquestionable integrity”. When these representatives of the President in the Council, together with others have screened a candidate for any position, and gave him a pass mark, the law require them to have carried out due diligence on the candidates. The public duty placed on the members of the Council requires them to properly represent the President by vetting closely the background of the candidates. Having satisfied themselves of the suitability, credibility, ability and competence of the candidates, the law presumes that their recommendation or advise to the NJC, is by virtue of Section 168(1) of the Evidence Act, substantially regular and that all formal requisites for its validity were complied with. The appointor (in this case the President) presumed by law to have delegated his powers and duties to his representatives and therefore is estopped, without any evidence to the contrary, from challenging the recommendation in which he had taken part. The President from the process shown above, was a part of the process that brought forth the recommendation of Justice Walter Onnoghen, JSC (as he then was). There is irrebutable presumption that his recommendation has passed through all the due processes. The learned Professor, again, with respect, made very unverified and at best speculative assertion when he said concerning the process of elevation of Judicial officers from High Court, Court of Appeal to the Supreme Court. He said: “all that has been happening in this country is in breeding within the Judiciary whereby a person is appointed Judge of the High Court and after marking time as a good boy or girl, he is appointed to the Court of Appeal and after marking further time as a good boy or girl he is elevated to the Supreme Court, so it has been turn by turn syndrome………………………………….. so the system is devoid of the merit, achievement and quality of the character of the appointees. Its all automation as you ride on the judicial escalator from high court Judge to the Supreme Court and then the position of the CJN”. Underline mine for emphasy. This assertion, with respect, is very sad and unfortunate. The learned Professor has never been a Judge or member of the Committee charged with appointing judicial officers. It is uncharitable and unfair to describe appointment to the Supreme Court in the manner the learned Professor has done. In the academic world, a graduate with a good degree is appointed graduate assistant, he rises to lecturer cadre and from there to Associate Professor and finally to the status of Professor. The progressive rising is the same on the Bench. The late Hon. Justice Chukwudifu Oputa and Saidu Kawu, JJSC, spent many years as Judges and Chief Judges of their States, they were elevated to the Supreme Court and they made their marks. The law reports justify their elevations. On the appointment of Professors or senior counsels directly to the Supreme Court, the learned Professor believes that a Professor who has never been a Judge should by reason of his academic achievement, be appointed to the Supreme Court. There are arguments for and against the proposition. Judgeship require experience, maturity and right temperament. The Supreme Court is not learning point for judicial functions. It is not a place for experiment or trials by error. A Justice of the Supreme Court is required to demonstrate learning, experience, maturity and wisdom in his Judgment. Today on the Bench are not less than ten (10) learned Professors and Phd. Holders, some of whom have risen from the High Court Bench and are in the Court of Appeal and Supreme Court. Their experiences, maturity and deep knowledge of the law reflect in their leading or contributions to Judgment. The advocates of direct entry of private practitioners of at least 15 years at the Bar, to be appointed to the Supreme Court, in my view, are merely, with humility, unrealistic. Things have changed and standards are not the same nowadays. I can understand a Senior Advocate of Nigeria, who have also practiced, arbitration or mediation giving them experience and who has integrity, academically sound and in good health being appointed to the Court of Appeal directly. I can understand, and sincerely appreciate the concern of the learned Professor Itse Sagay, SAN on the quality of Judgments of some Judges or Justices. We need to look at and review the way of recruitment and the Constitutional requirement of Federal Character not “good boy or good girl” as he stated. In the legal profession (Bar & Bench) all over the world, seniority is very important. And for the office of the Chief Justice, it is far more required. If a lawyer of 15 years is brought to preside over a Bench where his senior of 35 or 40 years are, it will create the most unhealthy environment. The founding fathers of the profession, knew this was important, hence the adherence in the last 60 years to the convention of seniority. It will do the Bench and generality of Nigerians, good, if those retired Justices who collected bribes and shared it among serving Judicial Officials, are NAMED PUBLICLY TODAY and formal report made to the ICPC or EFCC or the IGP for investigation, prosecution and possible conviction. They must pay the price for the damages they have done to Nigerians and administration of justice. They must be publicly put to shame. Post script; We congratulate His Excellency the Acting President Professor Yemi Osinbajo, SAN for sending the name of Hon. Justice WSN Onnoghen, JSC to the Senate for confirmation. Asiwaju Adegboyega Awomolo, SAN, FCIArb, FNIALS Life Bencher ]]>