Rumbling In Judiciary Over Seniority, CJN Succession Intrigues

By Lanre Adewole

THE current efforts at strengthening the nation’s Supreme Court are throwing up intrigues over seniority and succession that may have far-reaching implications. In the midst of the rumblings is President Muhammadu Buhari, the appointing authority for federal and the Federal Capital Territory judges.

Information at the disposal of the Nigerian Tribune showed that the president is not only in the middle of the whole saga, events of the last 10 months point at the executive arm as the force behind the strings. Without an official explanation, President Buhari has refused to complete the appointment procedure and process of four justices of Court of Appeal, recommended by the National Judicial Council (NJC) for elevation to the Supreme Court to augment the badly-depleted court.

While the constitution prescribes maximum of 21 justices for the apex court, where all appeals end, save for National Assembly and Houses of Assembly elections, the court currently has a meagre 12 justices, handling appeals from all the divisions of the Court of Appeal.

On October 23, 2019, the council recommended Justices Helen Ogunwumiju, Adamu Jauro, Chukwudumebi Oseji and Emmanuel Agim to the president for appointment as Supreme Court justices. Till date, President Buhari has refused to fulfill his constitutional duty of sending their names to the Senate for confirmation.

He also refused to reject the recommendation which he is empowered to so do, if dissatisfied with the quality of the nomination. As of today, the recommendation of the quartet has been pending for an unprecedented 301 days, making it the longest in history for the nation and the judiciary.

It was, however, learnt that while the Presidency had been mute on the refusal to send the list to the Senate, issues of alleged nepotism, ethnic consideration, favouritism and future succession to the office of the CJN on seniority basis, had been at the heart of the first-of-its-kind appointment crisis.

Nigerian Tribune gathered from a top system source that the president reportedly vacillated on the four-man list to ensure that a particular nominee, Ogunwumiju did not become a senior to a colleague, Justice Mohammed Garba, who presided over the Presidential Election Petition Tribunal which upheld Buhari’s victory in the 2019 poll.

Last Thursday, NJC finally recommended Garba and three other justices of the Court of Appeal to the president for appointment as justices of the apex court, making a total of eight nominees to the final court.

Another member of the tribunal, Justice Abdu Aboki, was also listed for the lifting, as well as Justices Tijjani Abubakar and Mohammed Saulawa. A source quipped last Friday that in weeks, all the nominees would have their turns at the Senate.

Garba is expected to top the new eight-nominee list from Buhari to the Senate, followed by Ogunwumiju, who would have been his senior if the president had acted on the first list. Though Garba is senior to Ogunwumiju on the Court of Appeal bench, promotion to the apex court had never been on the basis of seniority at the lower court, but a function of vacancies at geopolitical levels, since the movement to the top is done on geopolitical basis.

However, it is on record that another junior to Garba on the Court of Appeal bench, Justice Uwani Musa Abba-Aji was ppointed to the Supreme Court in January 2019 by the same President Buhari.

When they eventually become colleagues at the apex court, Garba will be Abba-Aji’s junior. Nigerian Tribune learnt that the original “reward” planned for Garba was to side-step the current President of the Court of Appeal (PCA), Justice Monica Dongban-Mensem, his senior, and enthrone him as the PCA.

The delay in announcing Dongban-Mensem as substantive PCA by Buhari was met with disavowal across the nation, including the North. The president was eventually forced to complete her appointment procedure, foreclosing the ossibility of Garba, frog-leaping his boss and senior.

Garba has always got a good mention for the PCA job, with Aloma as CJN in 2013, reportedly rooting for him though
he was seventh most-senior when a substantive PCA was being considered to replace Justice Isa Ayo Salami.

Ogunwumiju too, narrowly missed out being on the Supreme Court bench in June 2013, losing out to Justice Kudirat Olatokunbo Kekere-Ekun, from Lagos, when there was a vacancy in the South-West. Beyond seniority, future
succession to the office of CJN, is also reportedly driving the current moves to preserve the status quo from the Court of Appeal.

If the succession-by-seniority arrangement, which has been the norm, is preserved and sustained, Kekere-Ekun, would not be making history as the second female CJN in history when the incumbent Justice Mohammed Tanko bows out on 31st December 2023.

Though older than Justice Oluwakayode Ariwoola by 107 days, with both sharing the 1958 birth-year, the Iseyin-born jurist, will edge the Lagos jurist for the seat on January 1, 2024, because of seniority at the apex court. While Ariwoola was lifted to the Supreme Court on November 22, 2011, Kekere- Ekun came about a year and a half later in July 2013.

With Ariwoola, South-West will also be returning to the seat after 37 years. Southern Nigeria returned to the seat after 28 years with the shortlived tenure of Justice Walter Onnoghen, sacked by Buhari. In-between Tanko and Ariwoola changing the baton, six justices of the court; Olabode Rhodes, Sylvester Ngwuta, Mary Peter-Odili, Dattijo Musa Muhammadu, Ejembi Eko and Abba-Aji, though the most junior, but closer to retirement age than her seniors, would have retired.

That would leave Ariwoola as the most senior of four, born in different months of 1958; Kekere-Ekun, Centus Nweze and Amina Adamu Augie (born Anne Eva Graham) A 1958 himself, Garba, will be leading the set of the new-intakes, having been born on November 16, 1958.

Though the second term of President Buhari is lapsing on May 29, 2023, about seven months before Tanko would be bowing out, tongues are already wagging that an orchestrated disruption could see a return of the cancelled retirement leave, taking Tanko out, before Buhari bows out.

Nigerian Tribune learnt that for the president to delay crucial appointments for ten months, to allegedly ensure a carry-over of the seniority arrangement from the Court of Appeal to the Supreme Court, the central objective must be beyond not being favourably-disposed to some individuals on the first list.

Ethnic-positioning is being alleged and despite the seeming silence in the judiciary, muffled grumblings had been heard in certain high quarters of the system. If South-West returns with Ariwoola in 2024, Kekere- Ekun and Ogunwumiju, born March 23, 1957 would retire before the expiration of his CJNship.

The sustenance of the arrangement would see the South-East pick the baton on August 23 2028 through Iyang Okoro, prosecuted for alleged corruption and acquitted. Buhari administration had attempted stopping Onnoghen from benefitting from the seniority arrangement, arguing that the convention was not binding on the appointing authority.

Public outrage forced the hand of the president to eventually make the delayed appointment, before terminating it, controversially. Onnoghen and late CJN Aloysius Katsina-Alu, both Christians, are the two CJNs in modern history, without a valedictory service.

Editors Note; written by Lanre Adewole and originally published in Nigerian tribune