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‘Succession to office of CJN is governed by tradition’

Justice Mahmud Mohammed

Justice Mahmud Mohammed

The convention for succession to the office of the Chief Justice of Nigeria (CJN) has always been by seniority. This means that the most senior Justice of the apex court automatically emerges as the CJN when the incumbent retires. During the military era, however, there were some exceptions when persons outside the bench were appointed to the office. Apart from those times, the tradition has remained unchanged ever since. In this report by JOSEPH ONYEKWERE, he samples the views of senior lawyers over the speculation that the most senior Justice who is next in rank to the incumbent CJN, Justice Mamoud Mohammed may be denied the opportunity to assume the office when the incumbent retires in September. The lawyers are unanimous in their position that ascension to the office is governed by tradition rather than rule.

A Portharcourt-based Senior Advocate of Nigeria, Mr. Beluolisa Nwofor in his contribution reiterated the fact that the order of succession to the office of the CJN is just a mere tradition and not a law. According to him, it is a tradition that has been respected for quite a long time.

His words: “So, I expect that tradition should continue. If that tradition will not continue, it is the person who sought to discontinue it that has the onus to say the reason why it should not be continued. In our profession, it is not everything that is written in black and white. A lot are based on traditions that are good.

“So, I don’t expect departure from that tradition unless there are some issues, for example disease of the body and mind or mental disorder showing that that person may not be able to discharge the functions of that office. That could be exceptional circumstance to depart from the tradition.”
He maintained that when the person in question is strong, hale and hearty and has not been found to be corrupt, he should not be barred from assuming office. He stressed that unless the person is not fit by reason of health challenges, ‘then I don’t see the reason the tradition should be departed from.’

In his own position, a retired Justice of the Federal High Court, Justice Okechukwu Okeke said: “Before you can bypass the most senior, there must be clear cut evidence of misconduct. You know, once the National Judicial Council (NJC) starts the process, there is no way you can manipulate it. That was what Rotimi Amaechi wanted to do and it caused a lot of trouble in Rivers State. Yes, some states can do it and have done it, but that of the federation, it has always been the most senior with an exception during the military when they brought Dr. Teslim Elias and Justice Alexander who was the chief Justice of Cross River State into the office of the Chief Justice of Nigeria.”
According to him, those ones are aberration that happened during the military. He said the judiciary is an old institution that maintains its standard by tradition.

An Abuja based Senior Advocate of Nigeria and former attorney general of Benue State, Mr. Mamman Mike Osuman said the most senior Justice of the Supreme Court automatically should become the CJN even if it is six months.

“There is no circumstance except the man is ill or it is discovered that he is a person of questionable character. But we have not had such circumstance because even those who have six months to go were allowed to become CJN, for example, Alfa Belgore. “The judiciary is meant to show good example and so the issue of subverting the process of appointing the most senior as the CJN should not arise”, he stated, adding that the process has been a convention which cannot be jettisoned now.

“There is what is called the rule of primogeniture in our native tradition. So, it is the same tradition that operates in the courts”, he declared.
Also, Professor of law at the University of Lagos, Taiwo Osipitan (SAN) reiterated the fact that there is no law that says that when there is vacancy that the most senior Justice should become the CJN.

He said even though it doesn’t have to be by seniority, the convention and pattern has always been by seniority.
“But in law, there is no such provision. Any of the Justices is competent to be the CJN. That includes anybody from outside. So far he has the prerequisite qualification and post-call experience, he is qualified to be the CJN. Indeed Teslim Elias came from outside as the attorney general to become the CJN. “When he became the CJN, he was not the most senior person and he made a difference. It doesn’t matter whether it happened during the military or not. The military did not suspend that aspect of the constitution. Yes, the most senior can be appointed acting CJN, pending the appointment of a substantial one”, he explained.

Another law lecturer at the faculty of law of the University of Lagos and a human rights activist, Mr. Wahab Shittu said denying Justice Onneghen from assuming the position of CJN is still at the realm of speculations and conjecture.

He said: “Ordinarily, one will not react to that. But I want to say that in spite of that, the Supreme Court, being the highest court in the land, has always been guided by elements of competence, character and capacity as primary considerations on the issue of successions.

I believe that courtesy, good governance, discipline and orderliness should dictate that the most senior should takes over. That is the way I see it.“But in principle, there is no law that says that the most senior in hierarchy should become the CJN. In practice, that has always been the tradition. But can there be an exception? My answer is yes, given certain circumstances and also given the profile and history or antecedent of the nominee as the case may be

“So, if Justice Walter Onneghen is next in line and there is no reason to doubt his competence, capacity and character, I don’t see his position being compromised for any other person. So I don’t believe in that speculation. I believe that all appointments at the level of the Supreme Court are driven by the elements of merit.

“And that is what I subscribe for and believe in. So, I don’t believe with those spreading the rumour that he is likely to be discriminated against in the scheme of things.”

Former dean, faculty of law, Kogi State University, Ayingba, Prof. Allswell Osini Muzan said succession by seniority is just a tradition in ‘this part of the world’.  According to him, there are other jurisdictions where they can bring in the CJN from anywhere.

“It has happened many times in the United States. The CJN can be appointed from anywhere, but most times, the most senior is appointed but it is not a rule. As a matter of fact, we have precedent in the Supreme Court. Dr Teslim Elias came from the faculty of law of the University of Lagos to become the attorney general of the federation from where he became the CJN. There were other Justices there.

“He had not had any judicial experience all his life before. He had a lot of academic experience only. One may argue that it all happened during the military but the military was the executive arm of the government then. I agree that we have not had it under a non-military administration. But in almost all the states, the state governors bypass the most senior ones to appoint who they like most. It happens in almost all the states”, he argued.

In his opinion, the former director general of the Nigerian Institute for Advanced Legal Studies (NIALS), Prof Epiphany Azinge (SAN) agreed with others that the issue of succession in accordance with seniority is more of a convention than the law. He submits: “But we should also bear in mind that somehow during the military era, they deviated from that convention when Elias and others were appointed CJN. Whether that can be done under a constitutional democracy is another kettle of fish. “We must have to bear in mind that in the doctrine of separation of powers, appointees are subjected to the scrutiny of the senate.

There are instances where maybe report arising from the senate, there might be a need to think otherwise, that somebody is not eminently qualified to occupy such exalted position. “Such and other information that may come in, which might not be at the public domain may contribute in making the president think otherwise.” He however pointed out that in the absence of such, the tradition should be maintained. “I believe that courtesy, good governance, discipline and orderliness should dictate that the most senior should take over. That is the way I see it.

“But in principle, there is no law that says that the most senior in hierarchy should become the CJN. In practice, that has always been the tradition. But can there be an exception? My answer is yes, given certain circumstances and also given the profile and history or antecedent of the nominee as the case may be”, he posited.

In the same vein, an Ilorin-based Senior Advocate of Nigeria, Mallam Yusuf Ali said the succession plan has become an established convention.
His words: “It is a convention that the most senior Justice becomes the CJN if the incumbent retires, so it has become an established convention. It has been very well established that you can even imagine that people now think it is impossible to have it otherwise.

“But in our history, twice it happened; Elias and Justice Alexander from Cross River state were appointed. Apart from that, it has not happened since we became a republic in 1964.”

He explained that the reason for such convention is to have the stability of the courts and also provide for certainty. “Once one is considered qualified to be appointed a judge, you cannot talk of incompetence again. If you are incompetent, you cannot be a judge in the first place”, he argued.



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