Who will succeed Justice Isa Ayo Salami as President of the Court of Appeal (PCA)? The question remains as knotty as it was when Justice Salami retired in October after reaching the statutory age.

Moves to appoint a new PCA for the court has created a crisis, following alleged plans to either jettison seniority or second a Justice of the Supreme Court to head the appellate court.

The three senior judges of the court are the former acting PCA, Justice Dalhatu Adamu(Niger); the acting President, Justice Zainab Bulkachuwa(Gombe) and Justice Amiru Sanusi(Katsina).

Justice Adamu was acting president for 15 months. Justice Zainab Bulkachuwa is about a year in office as acting president.

It was learnt that the initial jostle for the PCA was between the three senior justices until a "Plan B" – to second a Justice of the Supreme Court to lead the appellate court – was floated.

It was gathered that the decision to redeploy a Justice of the Supreme Court is aimed at reorganising the court following the polarisation of the judges during the face-off between a former Chief Justice of Nigeria, Justice Aloysius Katsina-Alu and Justice Salami.

Court of Appeal justices and some members of the Bar are said to be unhappy with the likely imposition of a PCA from the Supreme Court.

The last time a Justice of the Supreme Court led the Court of Appeal was in 1976 when the late Justice Dan Ibekwe was appointed as the pioneer PCA.

A lawyer, Sunusi Musa, has also petitioned the Chief Justice of Nigeria, Justice Maryam Alooma Mukhtar.

A top source said: "The judges are not happy that there is a plan to circumvent seniority list in the Court of Appeal. They believe a distortion of the seniority list might give room for mediocrity and politicisation of the appellate court.

"They also alleged that jettisoning of seniority may affect discipline and the morale of the judges because they will become desperate to lobby for elevation.

"They said if the Supreme Court had not adhered strictly to seniority list, the CJN would not have reached the pinnacle of her career.

"Some of the judges also queried why a Supreme Court Justice would head the Court of Appeal when there are capable hands to do the job.

"They alleged that once a PCA is appointed from the Supreme Court, it will foreclose the prospect of a judge of the appellate court rising to the top. Their fears border on politics creeping into the Bench which may not augur well for the system."

Section 238 of the 1999 Constitution provides guidelines on the appointment of the PCA.

The section says: "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.

"A person shall not be qualified to hold the office of a Justice of the Court of Appeal unless he is qualified to practise as a legal practitioner in Nigeria as has been so qualified for a period of not less than 12 years.

"If the office of 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.

"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."

In a December 1, 2013 petition to the CJN, Justice Maryam Alooma Mukhtar, a lawyer, Sunusi Musa, urged the National Judicial Council (NJC) to respect seniority on the bench.

The petition reads in part: "Some people are mulling the idea of bringing someone from the Supreme Court to head the Court of Appeal. I am of the humble opinion that doing so may not speak well for the system best known for its conservatism in following an established custom of succession, which has for over the years been on seniority and which her lordship have battled even of recent to uphold, when some governors wanted to breach the tradition.

"Her lordship may recall that the NJC recently had a cause to reject the nomination for the position of the Chief Judge of Rivers, Adamawa, Kwara and Osun States respectively, based on breach of seniority tradition.

"The governors, by virtue of the powers conferred on them by the Constitution, forwarded to the NJC their nominations for the post of Chief Judge of their states and in all the cases, NJC under your able leadership stood its ground and advised the governors to forward the names of most senior judges in their states High Court for the appointment.

The petition traced the history of the leadership of the Court of Appeal. It listed its five substantive presidents as: Justices Dan Ibekwe, Mamman Nasir, Mustapha Akanbi, Umaru Abdullahi and Isa Ayo Salami. Justice Dalhatu Adamu served in acting capacity for 15 and now Justice Bulkachuwa is acting in same capacity for more than a year.

The petitioner went on: "As his lordship is aware, when the Court of Appeal was established in 1976, late Justice Ibekwe and Justice Nasir who were Supreme Court Justices then, volunteered to go to the Court of Appeal in order to put it in a proper and solid setting; since the work of the Court of Appeal and the Supreme Court are similar, the two eminent jurists were brought from the Supreme Court to set up the newly established Court of Appeal. Apart from them I do not think there was any other Justice that has gone to Supreme Court and later returned to the Court of Appeal.

"Justice Nasir, being junior to Justice Ibekwe, served under him for two years and after his demise, Justice Nasir became the PCA. That tradition was not broken as Justice Akanbi, being the most senior, succeeded Justice Nasir. Justice Akanbi was succeeded by Justice Abdullahi, who was also succeeded by Justice Salami. I could still recall Justice Salami saying he had earlier rejected elevation to the Supreme Court, perhaps because of his ambition to be PCA.

"If the reports are anything to go by, NJC under your watch, is being portrayed to represent what it abhors.

"If the NJC will insist on appointing the most senior Judges in four different states as Chief Judges, then why is the same NJC now trying to do otherwise in the case of President of Court of Appeal?

"And even by seniority the Justice that is being touted to be brought from the Supreme Court is far much more junior than the most senior justice of the Court of Appeal before his elevation to the Supreme Court.

"My lord from the records available, this Justice in question, was appointed to the Court of Appeal after the most senior Justice had spent eleven years there. By providence, he was elevated to the Supreme Court, and now rumoured to be coming back to the Court of Appeal in breach of his seniority in that court.

"That will certainly create disquiet among Justices of the court. This is a clear case of circumventing the seniority tradition and I don’t think history will be favourable to his lordship if his lordship is to allow this to happen under his watch."

The petition recalled that late Justice Sadi Mato of Kano State High Court spoke of how the late Justice Bello, the former CJN rejected being appointed the CJN thrice in order not to breach the seniority tradition.

"According to late Justice Mato, the late Head of State, Gen. Murtala Muhammed, Presidents Shagari and Babangida all offered Justice Bello the position of the CJN at different times, but in all the cases he turned the offer down on the ground that he cannot be CJN while his seniors were on the bench."