The Man On The Ojuelegba Bus And A Looming Constitutional Crisis

On the 11th of October 2016 the National Judicial Council (NJC) by an official communication, amongst other things stated that the Council was recommending Onnoghen JSC to be appointed as the next Chief Justice of Nigeria (CJN).

The official communication of the NJC was to put to an end a lingering controversy within legal circles as to whether the most senior justice of the Supreme Court or just about any lawyer of 15 years standing at the bar can become the Chief Justice of Nigeria. At the call to bar ceremony for new wigs sometime in June 2016 the Chief Justice of Nigeria Hon Justice Mahmoud Mohammed (now retired) had come down on the side of continuing the august tradition of appointing the most senior justice of the Supreme Court to succeed an outgoing CJN unless there is some reason otherwise.

There are two interpretation of Section 231(1) of the 1999 Constitution, as amended which provides that “the appointment of a person to the office of Chief Justice of Nigeria shall be made by the President on the recommendation of the National Judicial Council subject to confirmation by the Senate.”

One, which I will call the Literalist says “a person” means any person who (subject to section 231(3) of the Constitution) is at least 15 years at the bar. Thus such a person need not be a justice of the Supreme Court or a judge at all. Such ‘a person’ can even be an academic lawyer or a corporate lawyer.

On the other hand, the Traditionalists argue that such a person as must not only be a lawyer of 15 years standing but also a Justice of the Supreme Court and the most senior Justice of the Supreme Court at that. Law is a traditional and conservative profession with a great deal of weight attached to seniority.

But the Literalists have argued that the weight of tradition is not sufficient to import into the Constitution words which are just not there. This argument is premised on the grounds that there is nothing in the constitution which prescribe seniority as criterion or qualification for appointment to office of the Chief Justice of Nigera.

In fact section 232(3) which provides the sole ground of disqualification for appointment as CJN or Justice of the Supreme Court, says “a person shall not be qualified to hold the office of the CJN or of a Justice of the Supreme Court unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.”
Thus the argument of the Literalists who say the Constitution does not expressly vest succession to the office of CJN on the most senior Justice of the Supreme Court appear correct. But only so, as appearances can be deceptive.

In the first place, what Section 231(1) of the Constitution provides for is disqualification to hold the office; that is to say, a threshold requirement. Can just about any lawyer of 15 standing become Chief Justice of Nigeria?

The answer is no, this is because only those recommended by the NJC can be so appointed. Thus a further requirement apart from being 15 years at the bar is to be recommended by the NJC. Therefore a person not recommended by the NJC is automatically disqualified from being appointed by the President. The President cannot appoint a substantive CJN without the recommendation of the NJC neither can he recommend to the NJC nor appoint straight to the Senate.

Therefore non-recommendation by the NJC is a disqualification. Moreover the NJC has absolute discretion with responds to what criteria to consider in coming to a recommendation; no one can impose what the NJC should be satisfied with in order to recommend. If they deem that seniority is a good or sufficient criterion, the discretion is entirely theirs. Thus the intention of the framers of the Constitution was to leave it to the discretion of the NJC whom to recommend or not recommend.

Again, only one person can be recommended by the NJC. Since section 231(1) says that “the appointment of a person…shall be made on the recommendation of National Judicial Council…”in my opinion the NJC cannot recommend several persons at once to the President for appointment.

This was the power the NJC exercised on the 11th of October 2016 when it recommended Hon. Justice Onnoghen to the President for appointment as substantive CJN. The President has kept mute on the appointment of a substantive CJN since then. Hon Justice Mahmud Mohammed retired today the 10th of November 2016, on the attainment of the Constitutional retirement age of 70.
Upon his retirement there is an automatic vacancy in the office. Section 231(4) relates to vacancies in the office of CJN or in the Supreme Court generally. The section anticipates two scenarios, where there is a vacancy as a result of failure to appoint a person into the office or where there is an inability of the occupant to discharge the functions of that office. In either of those cases, the President is the sole constitutional authority to appoint a temporary replacement.

But this constitutional power is placed under two restrictions. First the President can only appoint the most senior justice of the Supreme Court to perform the functions of the office. This is the only express mention of the issue of seniority as a basis of appointment. Second, the appointee can only perform the functions of that office for 3 months. Where no substantive CJN has been appointed at the end of 3 months the President retains his power to appoint another person but he cannot appoint the person whose appointment has just lapsed. It is noted that there is no requirement of recommendation (by NJC) or confirmation (by Senate) under section 231(4) for the position of acting CJN.

However there is a lacuna. Although the Constitution says the first acting CJN must be the most senior Justice of the Supreme Court, it is silent on whether the next in line should be the next most senior, where the most senior justice’s tenure lapses. In other words, after the most senior justice is appointed and there is still a vacancy, is the further appointment to be made on the principle of seniority or can the President go outside the seniority principle and appoint the most junior justice of the Supreme Court as acting CJN? Can he appoint just about any other justice of the Supreme Court that suits his fashion? Can he appoint any lawyer of 15 years post call as the acting CJN, in view of the fact that the only limitation in Section 341(5) is that “the President shall not appoint a person whose appointment has lapsed?” Since the Literalists argue that there is no restriction on the definition of a person in section 231(3) with respect to who can be appointed as substantive CJN, why should there be a restriction the definition of a person in 341(5) limiting it to a justice of the Supreme Court with respect to who can become acting CJN? This may indicate the absurdity of the Literalist view.
The next point is the cause of vacancy.

Section 341(4) speaks of the office of the Chief Justice of Nigeria becoming vacant. What could be the cause of vacancy? Or put another way, what if the cause of the vacancy is the refusal to act of a person or body clothed with constitutional power to act? And what if such a person or body is the beneficiary of such refusal to act? These questions may seem hypothetical and even far fetched. But they are not.

Since the President received official communication from the NJC on 11th October of their recommendation and did not act on it till a vacancy occurred today, the vacancy is a direct result of his failure or refusal to act. Thus he is the direct beneficiary of his own failure to seek the confirmation of the Senate of the person recommended by the NJC. Furthermore if he subscribes to the arguments of Literalists who say any person can be appointed as substantive CJN provided he is a lawyer qualified to practice in Nigeria for 15 years, he can appoint any lawyer (or series of lawyers) of 15 years post call as acting CJN ad infinitum, so long as a vacancy exists provided the first acting CJN is the most senior justice of the Supreme Court.

Most lawyers would argue that it is inequitable for the same person who withholds his power to act to be the beneficiary of that same omission. But the framers of the Constitution did not anticipate this. Or did they?

My understanding of Constitutional provisions is that they are laconic. Just as Sir Udoma JSC, put it in Nafiu Rabiu v State (1980) 8-11 SC (Reprint) 85 at 127-8 of the report, when His Lordship said,

“My Lords, in my opinion, it is the duty of this court to bear in mind the fact the present Constitution has been proclaimed the Supreme Law of the Land; that it is a written, organic instrument meant to serve not only the present generation, but also several generations yet unborn;…the unwarranted intermeddlesomeness of the military authority with some of its provisions notwithstanding; that the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution.”

The questions all must seek to answer are these; if we say the seniority rule does not apply to selecting substantive CJNs because the Constitution is silent on it, why should it apply in selecting acting CJNs? If your answer is because the Constitution says so, my next question would be since the Constitution clearly recognize the possibility of more than one acting CJN, where does the Constitution say after the first acting CJN the next must be the next most senior justice of the Supreme Court? And where does the Constitution say the President must appoint a substantive CJN, why can’t he appoint acting CJNs ad infinitum by refusing to act on the recommendation of the NJC? And if he can, why should he appoint acting CJNs from the Supreme Court after complying with the rule with respect to the first such appointment?

The tripartite appointment procedure for a substantive CJN is an example of the countervailing constitutional principle of interdependence of powers as opposed to separation of powers. It requires that each arm act in concert with others and none seek domination of the other.
It cannot be the intention of the framers of the Constitution to give one agency of government such powers so as to frustrate cooperation with others and still be the beneficiary of such refusal.

The power of appointment of a Chief Justice Nigeria is tripartite. The President appoints on the recommendation of the National Judicial Council subject to the confirmation of the Senate. So we have an interplay of judicial, executive and legislative branches to produce the next chief justice of is Nigeria.
As Idigbe, JSC put it in the leading judgment in Nafiu Rabiu v State (supra) at 99, “…and as I said earlier, it is necessary that we should always bear in mind, when interpreting certain words and provisions in our Constitution, the exact nature and scope of the said Constitution.”

The best argument for seniority in appointment of substantive CJNs is the absolute discretion to the NJC to recommend a person in accordance with its own rules. Only they can formulate their criteria. If they choose not to consider seniority, so be it. But it would be wrong for another arm of government to stifle that constitutional power by refusing to act on their recommendation (as opposed to rejecting it which would require reasons) and take advantage of the ensuing crises.

If the officious bystander had asked the proverbial man in the Clapham bus or more appropriately, the man in the Ojuelegba bus, whether the framers of the Constitution had intended that the President act on the recommendation of the NJC whether on the basis of seniority or not, he would have responded, “but, of course!”

In conclusion, is it possible that the framers of the Constitution who wanted just about any lawyer with 15 years standing to be substantive CJN turn around to exclude all but the most senior justice of the Supreme Court from being appointed acting CJN? I think our friend from Ojuelegba bus stop would exclaim, “but of course not!”
President Buhari’s decision to appoint Justice Onnoghen as acting CJN has not averted a crisis.

Emmanuel Jakpa, practices law in Warri, Delta State.