Pegging Age for Appointment into the Judiciary; My Quick Take – Ellias Ajadi

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About two weeks ago, it was reported in the news https://dnllegalandstyle.com/2018/only-those-below-age-50-will-henceforth-be-appointed-judges-in-delta-state-cj  that the Hon. Chief Judge of the Delta state High Court, the Hon. Justice Marshall Umukoro lamented the dearth of “promotion” or “elevation” to the higher/appellate bench from the ranks of the court’s pool of judges. According to the report, “… only persons under 50 years of age are now eligible for appointment as judges in the state”. This policy or “paradigm shift” “… had become necessary to enhance the prospects of judges from the state for appointment into the Court of Appeal and the Supreme Court.”

A learned commentator Abdulrasheed Ibrahim, in an opinion piece titled “Should Elevation Age to Judicial Bench be Pegged?” https://dnllegalandstyle.com/2018/should-elevation-age-to-judicial-bench-be-pegged-abdulrasheed-ibrahim/ pointedly asked in reaction to the paradigm shift of the Delta State Judiciary: “Are lawyers from the age of 50 and above no longer eligible to be appointed as High Court judges in Delta State regardless of the fact that those applicants on their own are aware that they may not reach the appellate court? Does this mean that those judicial officers who have reached the age of 50 on the magisterial bench in the Delta State will not be elevated to the State High Court bench?”

In my opinion, pegging age for appointment into the bench is myopic. Rather, the yardstick for appointment should be the knowledge, competence and passion of appointees for the job. Those pushing the age pegging argument are irresponsible and attempting to play God. What if a 40 year old is appointed today and death comes calling before his 50th birthday? Age pegging is neither a guarantee for longevity on the job nor having prospect for appointment into higher judicial role as appellate justices.

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My view above may be buttressed by the lives of two eminent jurists. Benjamin N. Cardozo was one of the finest associate justices in the history of the Supreme Court of the United States, in spite of his very short tenure in that court. When appointed by President Hoover in 1932, the popular opinion was that the retiring Justice Oliver Wendell Holmes Jr, whom Cardozo was appointed to replace, would not be missed much. Justice Holmes at retirement at the age of 91 years had spent 29 years on the Supreme Court bench. Of all possible candidates available to fill his shoes, Cardozo was the natural choice and popular wisdom was that another 30 year stint on the apex court bench was in the offing. Sadly, Cardozo lasted less than six years on the bench before he died at the age of 68 years. So, if truth be told, pegging age for appointment is rubbish consideration.

Closer home, the appointment of the late Hon. Justice Augustine Nnamani into the Supreme Court in 1979 at a relatively young age of 45 years offers another example as to why the touted paradigm shift of the Delta State Judiciary might be self-serving. Justice Nnamani died suddenly in 1990. On the flip side, the late Hon. Justice Oputa did not get into the apex court until he was in his 60s and His Lordship left a great legacy before retirement. It shows that age is not the panacea for getting to the apex court but rather the competence of the appointees.

What’s the panacea? In my opinion, I rather think giving judicial officers lifetime tenure will serve us better. There is no point having a 65-year old high court Judge to proceed on compulsory retirement when he is still got the energy to carrying on and getting better doing the job. Or what wisdom lies in asking a 70-year old appellate court judge to exit the stage only to become redundant and succumbing to ill health for inactivity shortly after retirement? Give them life tenure with provision for taking “senior status” when they reach 65 or 70 years old by which time they have a reduced workload but still retaining their role and carrying out their functions. This will even help in the decongestion of the courts.

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As a corollary to the foregoing, it is high time we consider the need to allow judges who stepped down or resigned their position not to be barred from legal practice as advocates in the court room. When the Hon. Justice Yahya Abiodun Olatunde Jinadu resigned as a judge of the Lagos State High Court in 1984, “to protect his integrity and preserve the independence of the judiciary”, His Lordship sacrificed a career and could not return to his law practice. There are many judges who would have loved to bow out honourably rather than be compromised provided that they may return to their private practice as court room advocates. Many dread the uncertainty attached to retirement with no viable source of income for survival. For crying out loud, judges were first lawyers and you can’t take it away from them. Abe Fortas, who resigned on ethical standpoint from the US Supreme Court successfully returned to private practice and repeatedly appeared as an advocate before his learned brothers of the Supreme Court. Perhaps, when we give these suggestions a thought, the issue of age at appointment will weigh less in our minds instead of preference for competence and willingness for service.

Ellias Ajadi (elliasajadi@gmail.com) is a senior associate at Wale Taiwo & Co, Magodo GRA Phase II, Lagos.

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