As the President of the Court of Appeal, Justice Zainab Bulkachuwa, retires on March 6 when she attains the mandatory retirement age of 70 years, there have been behind-the-scene manoeuvres by certain forces both within and outside the National Judicial Council (NJC) to influence the choice of her replacement, THISDAY’s investigation has revealed.
THISDAY gathered that though it is a tradition for the next most senior justice in the Court of Appeal to be appointed as president once there is a vacancy, there are attempts to stop another female judge, Justice Monica Dongban-Mensem, who is next to Bulkachuwa in hierarchy, from succeeding her as the president of the appellate court.
Justice Dongban-Mensem, daughter of a retired Court of Appeal judge, Justice M. B. Douglas-Mensem, is from the Shendam Local Government Area of Plateau State and current presiding justice of the Court of Appeal, Jos Division.
THISDAY learnt that there were pressures on Justice Dongban-Mensen to agree to be elevated to the Supreme Court so as to pave the way for Justice Mohammed Lawal Garba, who is the next to her in seniority, to succeed Justice Bulkachuwa.
Justice Garba, who is the presiding justice of the Lagos Division of the Court of Appeal, was the presiding judge of the Presidential Election Petitions Tribunal for the 2019 election.
The tribunal upheld the election of President Muhammadu Buhari in the 2019 presidential poll, which was also upheld by the Supreme Court.
On her part, Dongban-Mensem, in 2015, headed a five-man appeal panel that upheld the ruling of the governorship election petition tribunal in Rivers State, which sacked Governor Nyesom Wike and ordered a rerun within 90 days.
The verdict was, however, upturned by the apex court.
A source privy to the intrigues told THISDAY that when Justice Donghan-Mensen was consulted that she would be nominated for elevation to the Supreme Court, she declined the offer.
The source said she was consulted to avoid a repeat of the crisis that occurred when a former President of the Court of Appeal, Justice Ayo Salami, declined his nomination to the Supreme Court after his name had been sent to the National Judicial Council (NJC) without his knowledge.
It was learnt that the pressures were so much on her that those close to her were also contacted to prevail on her to accept the elevation, all to no avail.
The source said it took the intervention of a high-ranking member of the NJC for those plotting to scheme her out to back out of the plot.
THISDAY gathered that the NJC member who is from the South-west, pointedly told his colleagues behind the plot that “since her Lordship has expressed her preference to be left alone at the Court of Appeal, putting pressures on her to accept the nomination of elevation to the Supreme Court is uncalled for.”
“It took the intervention of the senior member of the NJC for her to be left alone. Those behind the scheming are out to ensure that a Northern Muslim succeeds Justice Bulkachuwa as the President, Court of Appeal,” the source added.
Section 238 of the Constitution states that for a person to be appointed as the President of the Court of Appeal, the NJC must recommend him or her to the President of the country for appointment.
THISDAY gathered that though the NJC members who wanted to stop Dongbam-Mensen may have given up, there are still forces outside the NJC who have not given up.
The spokesman of the NJC, Mr. Soji Oye, however, told THISDAY that the process for the appointment of the next President of the Court of Appeal has not started.
Speaking to THISDAY on the process for the appointment, a constitutional lawyer and Senior Advocate of Nigeria (SAN), Mr. Sebastine Hon, said although it is traditional for the next most senior justice in the Court of Appeal to be appointed as president, Buhari could appoint any qualified person he so chooses.
“Normally under the constitution anybody who has practised law for the past 15 years is qualified to be appointed a justice of the Court of Appeal and he also can be appointed the president of the court of appeal.
“In accordance with tradition followed over time, the next most senior person is usually appointed the president of the Court of Appeal,” he stated.
According to him, it has become a legal tradition to appoint the next in line to avoid friction and ensure smooth working of the system.
“There is also advantage there because everybody who works as a justice of the Court of Appeal up to that level and having acquired that experience expects to become the president someday.
“So it is only natural and since it has been established as a practice or tradition. I hope and prayed that the next most senior person be made the president of the Court of Appeal.
“The process commences by the Federal Judicial Service Commission nominating and forwarding to the National Judicial Council (NJC) a candidate for the post, then the NJC would now recommend to the President of Nigeria for appointment.
“It can be done within two days, three days, one week but it is not late yet to do it”, he said.
Another senior lawyer, Mr. Ahmed Raji (SAN), noted that the shortlisted names by the Federal Judicial Service Commission are first filtered by the NJC before they are sent to the president who will now nominate for appointment and send to the Senate for confirmation.
“Once he is confirmed that is it”, he said.
On the powers of the president to appoint, Raji stated that the president could appoint anyone provided that the person meets the minimum requirement prescribed by the constitution and is eligible.
“The president can go to the Supreme Court to second somebody because the President of the Court of Appeal is on the same standing and status as a Supreme Court judge; they are at the same par in hierarchy. So, if he has issue with them at the Court of Appeal, somebody can come down from the Supreme Court.
“But before the appointment is made, if there is a vacancy, the president is obliged to appoint the most senior of the justices to act pending the substantive appointment.
“It is mandatory to appoint the most senior person to act, but when it comes to the substantive appointment, the president can choose anybody. He can pick from the academia; he can pick from the Supreme Court; he can pick any other justice of the court – the most senior does not necessarily have to have it. For example, if the most senior is having just few months to reach retirement there is no point, just bring somebody from below,” he said.
Justice Dongbam -Mensem received both her LL.B and LL.M degrees from the Ahmadu Bello University, Zaria.
She is an authority on criminal and civil procedure law, taxation and international public finance, public international law, legislative drafting, constitutional and administrative law and international commercial transactions, according to her website.
She has a postgraduate diploma from the Institute of Advanced Legal Studies, University of London, Russel Square, London, and started as a registrar at the Plateau State High Court in 1979 and later became a magistrate of various grades up to chief magistrate between 1981 and 1990.
Between 1990 and 1993, she served as deputy chief registrar, superior courts and protocol affairs and was appointed judge, High Court of Justice, Plateau State Judiciary from 1993 to 1996. On transfer from the former, she became the judge, Federal Capital Territory judiciary from 1997 to 2003.
Alex Enumah and Kemi Olaitan