Beware! ‘Precedent is Falling Down -By Awa Kalu, SAN

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The reader must be aware  that Nigerian Law, just as the common law, thrives on judicial precedent. In a nutshell what the doctrine of judicial precedent presupposes is that there is a hierarchy of courts and that in the exercise of each court’s prerogative to hear and determine cases, what appears overriding is for each court to follow precedents either set by the court itself or the courts above it.

It is also common knowledge, that apart from the hearing and determination of cases, precedent has been followed in the appointment of heads of court. To that extent, what precedent requires is the appointment of the most senior and experienced judge or judicial officer to head the particular court except on occasions when there is a fundamental change of circumstances.

To make it plain, the chief judge of a State High Court or the Federal High Court for example has at all times material been preferred or chosen from the highest ranking of the Judges taking into account the date of first appointment.

Exercise of the  Appointment

Similarly, the same scenario has played out at the Court of Appeal since the creation of the court several years ago save for a few discrepancies here and there. Guided by this background, it can be said without equivocation that since independence in 1960, the occupant of the office of Chief Justice of Nigeria has always been chosen from within the court and has also always been the highest ranking justice of the court in terms of experience reckoned from date of appointment.

However, a few hiccups in the exercise of the appointment to the office of Chief Justice Nigeria cannot, for our present purpose, be forgotten or overlooked. In that connection, late Dr. T.O. Elias was translated to the office of Chief Justice of Nigeria from the office of Attorney General of the Federation and Minister of Justice. This was, within the volatile times of the military era.

In addition, Justice Darnley Alexander was translated to the office of Chief Justice of Nigeria, not as a justice of the Supreme Court, but as Chief Justice of Cross River State (as he then was).

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Legal historians will recall that the appointment of Sir Darnley Alexander effectively supplanted and over looked Justice Udo Udoma, who at the material time hailed from Cross River State (later Akwa Ibom State). Based on what is forthcoming, the inevitable question will be whether lightning can strike twice at the same place.

Now, the title of this short piece i.e. “Beware! “Precedent is Falling Down,” is adapted from a famous and familiar nursery rhyme, “London Bridge is Falling Down,” which as you may recall is to the following effect- London Bridge is broken down, Broken down, broken down. London Bridge is broken down, My fair lady. Build it up with wood and clay, Wood and clay, wood and clay, Build it up with wood and clay, My fair lady.

Legal Historians

Wood and clay will wash away, Wash away, wash away, Wood and clay will wash away, My fair lady. Build it up with bricks and mortar, Bricks and mortar, bricks and mortar, Build it up with bricks and mortar, My fair lady.  Bricks and mortar will not stay, Will not stay, will not stay, Bricks and mortar will not stay, My fair lady.  Build it up with iron and steel, Iron and steel, iron and steel, Build it up with iron and steel, My fair lady. Iron and steel will bend and bow, Bend and bow, bend and bow, Iron and steel will bend and bow, My fair lady.  Build it up with silver and gold, Silver and gold, silver and gold, Build it up with silver and gold, My fair lady.

Silver and gold will be stolen away, Stolen away, stolen away, Silver and gold will be stolen away, My fair lady.  Set a man to watch all night, Watch all night, watch all night, Set a man to watch all night, My fair lady. Suppose the man should fall asleep, Fall asleep, fall asleep, Suppose the man should fall asleep? My fair lady. Give him a pipe to smoke all night, Smoke all night, smoke all night, Give him a pipe to smoke all night, My fair lady. As will soon be appreciated, London Bridge was broken down and the recommendation was to ‘build it up with wood and clay’ but the fear was that wood and clay ‘will wash away’, What about ‘bricks and mortar’?

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The author thought that bricks and mortar would not stay either. Then Iron and Steel will bend and bow; silver and gold will be stolen away and so a man should be set to watch all night but there was still the snag – that the man would fall asleep. What appeared to be the panacea for the merry-go-round was to fetch the watchman a pipe to smoke all night and there lies the irony.

An-all-night-pipe-smoking watchman would inevitably be found wanting and a replacement would be unlikely. The lesson, if applied to the current situation surrounding the office of Chief Justice of Nigeria, will surely reveal the reasonable likelihood that the precedent which has been followed in the appointment of the Chief Justice of Nigeria is in danger of being truncated. Guided by recent experience, appointment which have been made to the office of Chief Justice of Nigeria (within recent memory) clearly reveals preference for seniority and experience.

To that extent, Justice Mohammed Bello was succeeded as Chief Justice by the very well-liked Justice M.L. Uwais. In turn, Justice Belgore, a very competent Jurist took over the mantle and after Justice Belgore, came the Justice Idris Kutigi.

Break From Tradition

Upon the retirement of his Lordship Justice Idris Kutigi, Justice Katsina-Alu took over. The very fair minded Justice Dahiru Musdapher, immediately after Justice Katsina-Alu, ascended the lofty throne of Chief Justice of Nigeria and he in turn was succeeded by the very first female Chief Justice of Nigeria, Justice Aloma Mukhtar. Once Justice Mukhtar retired she was succeeded by the very well respected. Justice Mahmud Mohammed.  Justice Mahmud Mohammed retired in October 2016 and immediately next to him is another man from Cross River State, Justice Walter Onnoghen.

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So, (and this is where the bridge is falling down) after the Federal Judicial Service Commission and the National Judicial Council had done their due diligence, Justice Onnoghen name was forwarded to our dear President for appointment as Chief Justice of Nigeria. To the disappointment of many, there was a break from tradition, in that rather than have his name submitted to the senate for confirmation, Justice Onnoghen was appointed in an acting capacity i.e. as the Acting Chief Judge of Nigeria. An acting appointment to that office pursuant to extant provisions of the Constitution, expires by effluxion of time after three months – unless the National Judicial Council otherwise recommends.

Anxious Judicial watchers are presently contemplating what would happen in a few days when the acting tenure of Justice Onnoghen expires. Will the National Judicial Council make a recommendation to enable the President re-appoint Justice Onnoghen for another three months in his acting capacity? In the alternative will the President forward Justice Onnoghen’s name to the senate for confirmation?

Acting Capacity

Furthermore, will the President favour a precedent set by errant states by appointing another Justice in an acting capacity thus overlooking Justice Onnoghen? Will the President as is being muted in certain quarters shop for an outsider to head Nigeria’s apex Court? We do not find any reason to speculate but our humble advice would be that unless there are earth shaking reasons, precedent should not fall down!

Let our popularly elected President, in obedience to time honoured precedent and in accordance with the sacred letters of hour extant constitution appoint a substantive Chief Justice of Nigeria.

The Vanguard

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