The on-going move by the Court of Appeal to make lawyers its members on that bench is encouraging and worthy of being pursued to its logical end. For one, lawyers are suitable candidates for appointment as judges to the Appeal Court so long as they meet the constitutional requirement of a minimum of 12 years at the Bar. Secondly, making lawyers from the Bar and from the academia as judges has the potential of infusing the Court of Appeal with the vibrancy of advocacy and legal scholarship, a virtue most needed by the Court of Appeal, being the intermediary bench between the lower courts and the apex court in the country. And lastly, making lawyers judges of the Appeal Court is a sure way of filling the void, or shortage of judges of that bench. That shortage is currently constituting a source of stress and possible overwork for judges; and in consequence, dragging the wheel of justice to a slow.
Therefore, the recent invitation by the Appeal Court President, Justice Monica Bolna’an Dongban-Mensem to lawyers, asking them to apply to become Justices of the appellate court is timely and welcome. To this effect, Justice Dongban-Mensem has asked the Nigerian Bar Association (NBA) to recommend suitably qualified persons for consideration for appointment to the Court of Appeal Bench. These potential-lawyer applicants will form part of the pool of applicants to fill 16 present and other imminent vacancies on the Court of Appeal.
Given the shortage of Judges and legal scholarship in the Court of Appeal, it is proper and fitting that suitably qualified lawyers be appointed to fill up the vacancies in the Court of Appeal. Already some lawyers had submitted their applications for consideration for appointment. The National Judicial Council (NJC), the body responsible for the appointment of judicial officers, is not obliged to appoint Court of Appeal Justices from the stock of serving High Court Judges or abide by the civil service bureaucracy making such an appointment. There should be a departure from the age-long practice of elevating only High Court judges to the Court of Appeal. There is nothing wrong in appointing senior lawyers with pedigree and respected academics to the Court of Appeal Court to fill up the vacancies in the court and strengthen the court.
And there is sufficient antecedent to canvass this position. For example in 1972, Dr. Taslim Olawale Elias was appointed Justice of the Supreme Court all the way from the Faculty of Law, University of Lagos and he later rose to be the best world-acclaimed scholarly Chief Justice Nigeria has ever produced. Justice Augustine Nnamani (of the blessed memory) was appointed to the apex court from the Bar. Justice Okay Achike (of the blessed memory) was appointed as a High Court judge from academia and elevated to the Court of Appeal and the Supreme Court respectively in no distant time. There are more Dr. Eliases, Justice Nnamanis and Justice Achikes waiting to be appointed apex court Justices. Indiana Supreme Court Chief Justice Loretta H. Rush has recently announced that the Indian Judicial Nominating Commission would begin to accept applications from Indian lawyers for appointment to fill up the upcoming vacancy on the Court of Appeals of Indiana.
From the foregoing, it is clear that the appointment of lawyers to the apex court is a general practice across the world. Therefore, the President of the Appeal Court is justified in inviting lawyers to apply to become Court of Appeal Justices. Paradoxically, since 2017, no lawyer has been appointed either to the Supreme or the Court of Appeal despite the fact that the Nigerian Bar Association (NBA) has consistently been recommending senior lawyers for consideration for such appointment. So, why are the authorities inviting lawyers to apply to be appointed Justices of the Appeal Court only to turn round to refuse to invite them for interview let alone appoint them as Justices of the appellate court?
The truth of the matter is that the appointment of lawyers to the appellate court stokes great controversy. First, the Body of Senior Advocates of Nigeria (BoSAN) is vehemently opposed to the appointment. It has told the NJC to do away with the policy of inviting lawyers to fill up the vacancies in the Court of Appeal and Supreme Court. On their own part, serving lower court judges are also opposed to the appointment because they feel that it would jeopardize their career progress or the chances of being elevated to the apex court. They argue that it is unfair to appoint lawyers who had not held any judicial posts to the Court of Appeal leaving out judges who have spent decades in the judiciary moving from one court to the other. Such preference, according to them, might affect their dedication, morale and commitment in the discharge of their duties and does not even guarantee their elevation to the apex court.
Neither the contentious judgment of BoSAN; the vaulting ambition of lower court judges nor the civil service bureaucracy should be allowed to override national interest and even judicial interest in the appointment of lawyers to the apex court. Section 238 of the 1999 Constitution clearly stipulates that any legal practitioner of 12 years and above post-call can be appointed as a Court of Appeal judge. The Constitution does not stipulate that only serving judges should be appointed to the Court of Appeal, as has been the practice and tradition. There is no evidence that serving judges who rose through the ranks to become Court of Appeal outperform lawyers who had not held such a judicial post at the Court of Appeal. On the contrary, legal practitioners and lawyers in academia who had been appointed to the apex court had exceedingly excelled in the performance of their duties.
More importantly, considering that the Court of Appeal is depleted of Justices at the moment coupled with the dearth of legal scholarship in the court, the appointment of lawyers to that court has become imperative.