Succession Crisis Hits Appeal Court

The question of Who will succeed Justice Isa Ayo Salami as President
of the Court of Appeal has remained as
knotty as it was when Justice Salami retired in October
after reaching the statutory age.
Moves to appoint a new PCA for the court has created
a crisis, following alleged plans to either jettison
seniority or second a Justice of the Supreme Court to
head the appellate court.

The three senior judges of the court are the former
acting PCA, Justice Dalhatu Adamu(Niger); the acting
President, Justice Zainab Bulkachuwa(Gombe) and
Justice Amiru Sanusi(Katsina).
Justice Adamu was acting president for 15 months.
Justice Zainab Bulkachuwa is about a year in office as
acting president.

It was learnt that the initial jostle for the PCA was
between the three senior justices until a “Plan B” – to
second a Justice of the Supreme Court to lead the
appellate court – was floated.
It was gathered that the decision to redeploy a Justice
of the Supreme Court is aimed at reorganising the court
following the polarisation of the judges during the
face-off between a former Chief Justice of Nigeria,
Justice Aloysius Katsina-Alu and Justice Salami.

Court of Appeal justices and some members of the Bar
are said to be unhappy with the likely imposition of a
PCA from the Supreme Court.
The last time a Justice of the Supreme Court led the
Court of Appeal was in 1976 when the late Justice Dan
Ibekwe was appointed as the pioneer PCA.

A lawyer, Sunusi Musa, has also petitioned the Chief
Justice of Nigeria, Justice Maryam Alooma Mukhtar.
A top source said: “The judges are not happy that
there is a plan to circumvent seniority list in the Court
of Appeal. They believe a distortion of the seniority list
might give room for mediocrity and politicisation of the
appellate court.

“They also alleged that jettisoning of seniority may
affect discipline and the morale of the judges because
they will become desperate to lobby for elevation.

“They said if the Supreme Court had not adhered
strictly to seniority list, the CJN would not have
reached the pinnacle of her career.

“Some of the judges also queried why a Supreme Court
Justice would head the Court of Appeal when there are
capable hands to do the job.
“They alleged that once a PCA is appointed from the
Supreme Court, it will foreclose the prospect of a judge
of the appellate court rising to the top. Their fears
border on politics creeping into the Bench which may
not augur well for the system.”
Section 238 of the 1999 Constitution provides
guidelines on the appointment of the PCA.

The section says: “The appointment of a person to the
office of President of the Court of Appeal shall be made
by the President on the recommendation of the
National Judicial Council, subject to confirmation of
such appointment by the Senate.
“A person shall not be qualified to hold the office of a
Justice of the Court of Appeal unless he is qualified to
practise as a legal practitioner in Nigeria as has been
so qualified for a period of not less than 12 years.

“If the office of 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.

“Except on the recommendation of the National
Judicial Council, an appointment pursuant to the
provisions of 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.”

In a December 1, 2013 petition to the CJN, Justice
Maryam Alooma Mukhtar, a lawyer, Sunusi Musa,
urged the National Judicial Council (NJC) to respect
seniority on the bench.
The petition reads in part: “Some people are mulling
the idea of bringing someone from the Supreme Court
to head the Court of Appeal. I am of the humble
opinion that doing so may not speak well for the
system best known for its conservatism in following an
established custom of succession, which has for over
the years been on seniority and which her lordship
have battled even of recent to uphold, when some
governors wanted to breach the tradition.

“Her lordship may recall that the NJC recently had a
cause to reject the nomination for the position of the
Chief Judge of Rivers, Adamawa, Kwara and Osun
States respectively, based on breach of seniority
tradition.

“The governors, by virtue of the powers conferred on
them by the Constitution, forwarded to the NJC their
nominations for the post of Chief Judge of their states
and in all the cases, NJC under your able leadership
stood its ground and advised the governors to forward
the names of most senior judges in their states High
Court for the appointment.
The petition traced the history of the leadership of the
Court of Appeal. It listed its five substantive presidents
as: Justices Dan Ibekwe, Mamman Nasir, Mustapha
Akanbi, Umaru Abdullahi and Isa Ayo Salami. Justice
Dalhatu Adamu served in acting capacity for 15 and
now Justice Bulkachuwa is acting in same capacity for
more than a year.

The petitioner went on: “As his lordship is aware, when
the Court of Appeal was established in 1976, late
Justice Ibekwe and Justice Nasir who were Supreme
Court Justices then, volunteered to go to the Court of
Appeal in order to put it in a proper and solid setting;
since the work of the Court of Appeal and the Supreme
Court are similar, the two eminent jurists were brought
from the Supreme Court to set up the newly established
Court of Appeal. Apart from them I do not think there
was any other Justice that has gone to Supreme Court
and later returned to the Court of Appeal.

“Justice Nasir, being junior to Justice Ibekwe, served
under him for two years and after his demise, Justice
Nasir became the PCA. That tradition was not broken
as Justice Akanbi, being the most senior, succeeded
Justice Nasir. Justice Akanbi was succeeded by Justice
Abdullahi, who was also succeeded by Justice Salami.
I could still recall Justice Salami saying he had earlier
rejected elevation to the Supreme Court, perhaps
because of his ambition to be PCA.

“If the reports are anything to go by, NJC under your
watch, is being portrayed to represent what it abhors.
“If the NJC will insist on appointing the most senior
Judges in four different states as Chief Judges, then
why is the same NJC now trying to do otherwise in the
case of President of Court of Appeal?
“And even by seniority the Justice that is being touted
to be brought from the Supreme Court is far much
more junior than the most senior justice of the Court of
Appeal before his elevation to the Supreme Court.

“My lord from the records available, this Justice in
question, was appointed to the Court of Appeal after
the most senior Justice had spent eleven years there.
By providence, he was elevated to the Supreme Court,
and now rumoured to be coming back to the Court of
Appeal in breach of his seniority in that court.
“That will certainly create disquiet among Justices of
the court. This is a clear case of circumventing the
seniority tradition and I don’t think history will be
favourable to his lordship if his lordship is to allow this
to happen under his watch.”

The petition recalled that late Justice Sadi Mato of
Kano State High Court spoke of how the late Justice
Bello, the former CJN rejected being appointed the CJN
thrice in order not to breach the seniority tradition.
“According to late Justice Mato, the late Head of State,
Gen. Murtala Muhammed, Presidents Shagari and
Babangida all offered Justice Bello the position of the
CJN at different times, but in all the cases he turned
the offer down on the ground that he cannot be CJN
while his seniors were on the bench.”