The Case Of Hon. Justice Monica Dongbam-Mensem (Ag. PCA)

By Caleb MUTFWANG Esq.

THISDAY Newspaper of Monday June 1, 2020 on page 8, carried under the headline “SANs Hail Buhari’s Renewal of A’Court President’s Acting Appointment”news that “Some senior lawyers at the weekend defended President Muhammadu Buhari’s decision to renew the appointment of Justice Monica Dongban-Mensem as the Acting President of the Court of Appeal.

They faulted claims that the president violated constitutional provisions by renewing her acting appointment.” Really?

With the greatest respect to the senior lawyers who proffered their opinions, I beg to humbly disagree. Indeed pursuant to Section 238(4) of the 1999 Constitution (as amended), the Honourable Justice Monica Dongban-Mensem has been acting as the President of the Court of Appeal as of right. Being the “most senior justice of the Court of Appeal” following the retirement of the Hon. Justice Zainab Bulkachuwa as substantive President of the Court.

Her appointment by the President since March 6, 2020 was mandatory given the aforementioned provision. Since she came into that office, most of her colleagues and Legal Practitioners would agree that within this three month period, she has discharged her offices creditably.

It is, therefore, gratifying that the National Judicial Council under the chairmanship of the Chief Justice of Nigeria, Justice IT Muhammad, at its 91st meeting held online as reported by the media on 1st June, 2020 considered the report of its “Interview Committee” and resolved to recommend her Lordship to President Buhari for appointment as substantive President of the Court of Appeal presumably so as to foreclose the possibility of a vacuum just before the expiry of her acting capacity on or about the 5th of June, 2020 having commenced on the 6th of March, 2020.

This in our humble view is in fulfillment of the letter and spirit of the provisions of Section 238(5) of the 1999 Constitution (as amended) which reads: “Except on the recommendation of the National Judicial Council, an appointment pursuant to the provisions of subsection (4) of this section shall cease to have effect after the expiration of three months from the date of such appointment and the President shall not re-appoint a person whose appointment has lapsed”.

It is instructive that the National Judicial Council did not recommend her Lordship to the President for a second tenure appointment as “Acting President of the Court of Appeal”. We humbly submit that Section 238(4) which states:

“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.”

It does not make provision for a second tenure in an “acting” capacity. This is because having acted for a period of three months; the National Judicial Council did not find any ground of “except” as envisioned by the earlier mentioned Section 238(5) to “re-appoint a person whose appointment has lapsed”!

We further submit In view of the above, then that the President Buhari does not have power to gratuitously re-appoint her Lordship as Acting President of the Court of Appeal. It is our humble opinion that he can only “appoint” as “recommended”.

In the instant case, what has the recommending authority, the NJC recommended? According to THISDAY report of Monday June 1, 2020, which has not been refuted, “The National Judicial Council (NJC) has recommended Justice Monica Dongban-Mensem to President Muhammadu Buhari for confirmation as President of the Court of Appeal.”!

For the avoidance of doubt on the President’s powers in this regard, Section 238. (1) of the Constitution under reference states clearly that:

“The appointment of a person to the office of President of the Court of appeal shall be made by the President on the recommendation of the National Judicial Council subject to confirmation of such appointment by the senate.

…it becomes imperative for the President to immediately act on the recommendation of the NJC or otherwise give reasons why he is unwilling to do so

Can the President unilaterally act outside the recommendations of the NJC? The answer under the Constitution and our extant laws is a capital NO! It is our humble submission that the purported re-appointment of Hon.Justice Monica Dongban-Mensem as acting President of the Court of Appeal is ultra vires Section 238(4) and (5) of the 1999 Constitution as amended, he MUST act according to terms of the recommendations and further act by forwarding same to the Senate for confirmation in line with Section 238(1). We find it ridiculous and absurd that even senior lawyers are thanking and praising the President for breaching the Constitution?

Considering the above, it becomes imperative for the President to immediately act on the recommendation of the NJC or otherwise give reasons why he is unwilling to do so.

Fortunately, the Constitution does not give the President any discretion in the matter. By the time tested wisdom of the doctrine of separation of powers, the President of the Federal Republic of Nigeria, is with due respect, a clearing house to, on the one hand forward recommendations of the NJC to the Senate for confirmation and thereafter swear in same upon confirmation.

Until the law is amended to otherwise give powers to the President to exercise any discretion in the matter, the Attorney General and Minister of Justice and the new Chief of Staff to the President, Professor Ibrahim Agboola Gambari must advise the President to do the needful.

The NBA must also call the President’s attention to this constitutional breach. We can only hope that this is not a ploy to buy time to find a reason to dump her Lordship and appoint someone from his place of preference?

Failure to send a letter recommending Justice Dongban-Mensem to the Senate on or before 6th June would be in utmost bad faith and will definitely lend credence to the rumours making the rounds that Mr. President has no intention of allowing the Honourable Justice Dongban-Mensem become the second substantive President female of the Court of Appeal.

Mr. President’s excuse will certainly not be because she is a woman. If it were, the President would be seen to be saying that their Lordships, Justice Mariam Aloma Muktar (Nigeria’s first CJN) and the immediate past President of the Court of Appeal, Justice Zainab Bulkachuwa were lucky to have become due for their respective appointments before his tenure. It is hard to imagine that their sterling contributions to our jurisprudence would have ended in the other room!

Our sincere hope is that Nigeria will not miss another opportunity to benefit from the brilliance and experience of another “girl child”who has through the dint of hard work and perseverance earned her right to become primus inter pares among the eminent jurists of the Court of Appeal.

We can only hope that this is not a ploy to buy time to find a reason to dump her Lordship and appoint someone from his place of preference?

She has gone about her assignment in our humble opinion with vim, vigour and vivacity. According to the erudite senior lawyer, and President, Centre for Socio-Legal Studies (CSLS), Prof. Yemi Akinseye-George (SAN) in an interview with THISDAY, “I don’t know of the theories behind the delay in confirming the appointment of the AG PCA, Hon. Justice Monica Dongbam-Mensem.

“But what I know is that she has performed brilliantly well during her acting appointment. She has led the court admirably. Building on the enviable records of her predecessor; she has taken the court to great heights. “She has vigorously decongested the dockets of the court. It will be a great disservice to the nation in general and to the justice system, in particular, to further delay her confirmation. “She needs to be able to settle down to the urgent tasks of the court. All hands must be on deck to confirm her appointment before the expiration of her second acting appointment.”

Tell it not to the army of brilliant girls and women that we are raising, neither let it not be heard in the hallowed chambers of the Nigerian Bar Association, West African Bar Association, African Bar Association and the International Bar Association etc., that a legal amazon has been denied her rightful place in the annals of our history simply because she is not from where the President would have so wished.

It is an open fact that no President in our chequered history has exalted parochialism to a citadel of glory like President Buhari (examples abound like appointments into Federal Character Commission, heads of national Security organs etc.).

Even several of his Fulani kinsmen like the well-respected Col. Dangiwa Umar (Rtd.) have openlychastised the President. In his letter to the President recently which has gone viral, Umar warned:“At this time and in the light of all that have happened since you took office, any conversation with you Mr. President cannot gloss over the chaos that has overtaken appointments into government offices in your administration.

All those who wish you and the country well must mince no words in warning you that Nigeria has become dangerously polarized and risk sliding into crisis on account of your administration’s lopsided appointments which continues to give undue preference to some sections of the country over others.”

Mr. President, except you have been misled or you have a different agenda for the judiciary and the Court of Appeal in particular, please obey the Constitution NOW and forward the name of the Hon.Justice Monica Dongban-Mensem, Acting President of the Court of Appeal to the Senate of the Federal Republic of Nigeria for confirmation asthe substantive President of same.

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Caleb MUTFWANG Esq is the Principal Partner of Caleb MUTFWANG & Co.

2nd Floor, Bagudu House, LL.6, Ahmadu Bello Way, Kaduna.

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Buhari And The Politics Of Judicial Confirmation