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Will there be a substantive PCA?

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By Ikechukwu Nnochiri

Believe it or not, the Nigerian judiciary is on the verge of setting a new record! This time, it is not about a woman becoming the first female Chief Justice of Nigeria, CJN, or a serving judge being found dead in his hotel room.

Reminiscent of the unprecedented stench of crisis that oozed from the judiciary whilst the feud that existed between the former CJN, Justice Aloysius Katsina-Alu and embattled president of the Court of Appeal, Justice Isa Ayo Salami lasted, the ominous finger of crisis has started prodding again.

Remarkably, one way or the other, the Appeal Court has always played a lead role in the chronological order of confusion that has befallen the Nigerian judiciary in recent times.

Whereas the Court of Appeal in Nigeria was established by virtue of section 237 of the 1999 constitution, as amended, section 239 on the other hand, invested it with the original jurisdiction to hear and determine specific cases.

According to the section, the appellate court, to the exclusion of any other court of law in Nigeria, has the powers to answer questions relating to whether –(a) any person has been validly elected to the office of President or Vice-President under this constitution; or (b) The term of office of the President or Vice-President has ceased; or (c) the office of President or Vice-President has become vacant.

Besides, it has the core jurisdiction to entertain appeals from the Federal High Court, the High Courts of both the FCT Abuja and the 36 states of the federation, Sharia Court of Appeal, Customary Court of Appeal and from decisions of a court martial or other tribunals as may be prescribed by an Act of the National Assembly.

This evidently depicts the enormity of judicial responsibilities bestowed on the appellate court by the Nigerian constitution.

However, one could rightly opine that since its establishment in 1976, the appellate court in Nigeria may not have witnessed too many controversies than has bedeviled it within the past two years.

Ex CJN Justice Dahiru Musdapher and Aloma Mukhtar CJN

Prominent among them include the looming constitutional crisis regarding the continued stay of Justice Dalhatu Adamu as the acting President of the Court of Appeal.

Never in the annals of the Nigerian jurisprudence had the tenure of an acting PCA been renewed for five consecutive times.

Recently, President Goodluck Jonathan extended the tenure of the acting PCA for the 5th time, a move that has continued to generate ripples within the judicial circles, especially among ranking judges on the appeal court bench.

Specifically, it is now a year and six weeks since the embattled PCA, Justice Salami, was suspended from office by the National Judicial Council, NJC, over alleged judicial misconduct.

The Council had at the end of its 7th Emergency Meeting on August 18, 2011, ordered Salami to hand over the affairs of the appellate Court to the next most senior justice of the court.

Salami’s sin was that he refused to recant his allegation that a former CJN, Justice Katsina-Alu, of pressurizing him to pervert justice in a governorship election appeal dispute involving Sokoto State.

The NJC had on August 10, 2011, handed Salami 7-days to tender a written apology to Justice Katsina-Alu and the council, saying two separate panels it constituted to probe the allegation, found him guilty of “judicial misconduct.”

According to NJC, “having therefore established that the allegation/complaint by the President, Court of Appeal, Hon. Justice Isa Ayo Salami, OFR, against the Chief Justice of Nigeria, Hon. Justice Aloysius Katsina-Alu, GCON regarding the Sokoto Gubernatorial Election Appeal was false.

”Council decided that it is misconduct contrary to Rule 1(1) of the Code of Conduct for Judicial Officer of the Federal Republic of Nigeria.”

Meanwhile, sequel to the recommendation of the NJC, President Jonathan, promptly appointed Justice Adamu to take over the affairs of the appellate court in acting capacity.

Though President Jonathan drew his powers from the provisions of section 238(4) of the 1999 constitution, which states that: “If the Office of the President of the Court of Appeal is vacant or if the person holding the office is for any reason unable to perform the functions of the office, then, until a person has been appointed to and has assumed the functions of that office or until the person holding the office has resumed those functions, the President shall appoint the most senior Justice of the Court of Appeal to perform those functions.”

More so, section 238 (5) stipulates that: “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of sub-section 4 of this section shall cease to have effects after the expiration of three months from the date of such appointment, and the President shall not reappoint a person whose appointment has lapsed.”

Thus, except for the caveat in sub-section (5) of that portion of the constitution, the first tenure of the acting PCA ought to have expired in November, 2011.

The implication of his continued stay in office in acting capacity is that other senior judges on the appellate court bench have been shut out, as Adamu, according to Jonathan, will remain in the office even if it takes donkey years to settle the pending litigation over Salami’s suspension.

It would be recalled that President Jonathan had insisted that he would not recall Salami until all the court cases pertaining to his removal were disposed off.

Jonathan who took the stand even after the NJC implored him to re-instate the embattled PCA who is due to retire on October 13 next year, maintained that the case was already sub-judice.

Meanwhile, as the controversy ranges, the renewal of Justice Adamu’s tenure has continued to create disquiet in the Court of Appeal as some legal pundits believe there might have been a constitutional oversight.

They contended that going by the tenets of fairness and equity, Adamu should not have spent more than two terms in acting capacity.

According to this school of thought the ideal thing would have been for the government to allow the Office of the PCA to be rotated every three months among senior justices of the court until the resolution of the lingering legal crisis.

Already, there are insinuations that Adamu was specifically hand-picked towards ensuring that Salami remained in suspension till his retirement date.

A Senior Judicial officer of the Supreme Court, who spoke to Vanguard, said the rationale behind the plot was to pave way for an immediate commencement of a perjury proceeding against Justice Salami who the NJC hitherto found guilty of lying on oath in an affidavit he personally deposed to before a Federal High Court in Abuja wherein the top echelon of the Nigerian judiciary under Justice Katsina-Alu, was accused of abetting judicial corruption.

Meantime, the high court is yet to resume hearing on the substantive suit filed by Salami after the Abuja Division of the Court of Appeal declined to transfer the legal-feud to the National Industrial Court, NIC, for adjudication.

Thus as it stands today, Justice Adamu who is currently enjoying his fifth-tenure-extension, may actually enter into history as the longest serving acting President of the Court of Appeal.  Efforts of the Lagos state government for taking care of the prisons.

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