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Increase in Supreme Court Justices: Lawyers say number still inadequate for excess workload

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Justice Muhammed Tanko

One of the challenges confronting Nigerian society is the slow pace at which the wheel of justice grinds. Though it grinds to legal conclusions, many feel the purposes are sometimes defeated. Unfortunately, it is the general perception that to seek legal justice in Nigeria is to waste time and resources, a development that has brought the nation to the prevailing state of criminality and lawlessness.

From the lowest court to the apex, sluggish dispensation of justice pervades the system and one of the factors often blamed for the situation is dearth of judicial officers. At the Supreme Court for instance, the 1999 Constitution allows for a total of 21 justices. This number is considered insufficient considering the complex socio-political nature of the people and the fact that virtually every kind of matter goes on appeal up to the apex court.

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Another problem identified by experts is the preference of political matters over other issues. Consequently, other issues often take the backseat at the docket at every election year. This explains why some matters last as long as 10 to 15 years before conclusion. Since justice delayed is justice denied, some concerned Nigerians have continued to canvass increase in the number of justices at various court divisions across the country.

The situation became more pathetic at the Supreme Court level at a time. Although the constitution provides for 21 justices, the number depleted to only 12 in 2019 due to retirement and death of some justices. Also worried by the circumstance, The Guardian Newspaper joined in the call for increase in the number of justices in its February 8, 2020 edition. The paper in that report sought experts’ opinions on some of the implications of the depleting number of Supreme Court justices on the nation’s justice system as well as on the socio-political and economic wellbeing of Nigerians.

Perhaps, this report and several other media interventions resulted in the appointment of additional eight justices later that year. This development brought a sigh of relief to many Nigerians, particularly lawyers, even though the number still falls short of one when compared to the provision of Section 230 of 1999 Constitution, which stipulates that “the Supreme Court of Nigeria shall consist of the Chief Justice of Nigeria (CJN) and such number of Justices not exceeding 21 as may be prescribed by the act of National Assembly.”

According to President Muhammadu Buhari, the appointment was to strengthen the Judiciary to meet with the challenges of the 21st Century. But to what extent can this increase in number of judges impact justice delivery in the country? Some senior lawyers have expressed the view that the number as presently constituted remains too inadequate to make any conspicuous difference in justice delivery.

Akinlolu

An Abuja-based Senior Advocate of Nigeria (SAN), Akinlolu Kehinde, stated categorically that the number as presently constituted is inadequate. He noted that the country must bear in mind the fact that it is currently under a democratic dispensation and one of the rights of every citizen is the unhindered access to court to ventilate their grievances, either against the state or against individuals.

The Senior Advocate insisted that the constitution should rather be amended to increase the number of justices of Supreme Court due to large number of cases pending therein. He said: “As we speak, we still have cases that have lasted over 12 years and are yet to see the light of the day.” Besides increasing the number, he believes that selecting the kind of matter that gets to the Supreme Court will help in addressing the problem of slow justice dispensation.

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According to him, there is also need to tinker with the constitution so that it is not every matter that can get to the Supreme Court. This, he said, is to ensure that they are not overburdened. “Tenant versus landlord matter is dragged to the Supreme Court simply because you have the right of appeal. We must find a way of reducing the number of cases that get to the Supreme Court. The justices are currently being overworked”, the senior lawyer said.

To Kehinde, that should even be the major focus. How do we sieve the number of cases that get to the Supreme Court so that we don’t overburden the court? He asked: “Supreme Court should be a policy court; a court where once a settled position of law has been laid down by it, everybody should just queue behind it. That is my position.” He expressed worries that as it is currently, the 20 justices the nation has cannot cope with the overwhelming burden of litigations in the court’s docket.

“That is the truth. Don’t forget that most of them are old and as such, their productivity is declining by the day. That is my opinion,” he said.

But in spite of the excess workload, election matters are dispensed within stipulated timeframe. For instance, such matters are expected not to exceed 180 days at the High Court level, 60 days at the Court of Appeal division and another 60 days when the appeal gets to the apex court. This, no doubt puts the justices under immense pressure as they have limited time to read voluminous processes and their responses. In fact, some of the judgments emanating from the apex court in the past allegedly pointed to the fact that they may have been prepared in a hurry so as to meet up with the constitutionally stipulated timeframe.

In his response, the lawyer recalled that those that amended the law and provided for Section 285(9), which gave timeframe within which election matters must be settled are politicians. “I want to say with every sense of responsibility that they are selfish people. They made that law to suit their own particular needs,” he said. Akinlolu held that there is no reason election-related matters should always have priority over other matters.
He said: “There are matters involving lives of citizens; there are other matters involving big commercial transactions that are lying there because of election matters. Some of the election litigations were of no consequence. Yet, litigants always believe that it is not over until it is over and based on that belief, they continue dragging the matter until it gets to the apex court.

“That is part of our problems as a nation. But I also want to see it as part of the evolution. However, there is need to tinker with that law as well. I don’t agree that political matters should be given priority over other matters. I do not subscribe to that,” he concluded.

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In his contribution, another senior lawyer, Mr. Sebastian Hon (SAN), agreed with Akinlolu (SAN) when he blamed the seeming slow pace of justice delivery on too many appeals, which ought to have terminated at the Court of Appeal, instead of travelling down to the Supreme Court.

“We have many divisions of the Court of Appeal and from there; their decisions are tested at the Supreme Court level. And then, we have so much litigation because Nigerians are highly litigious and the Supreme Court is actually over-flooded with appeals. The National Assembly tried to whittle down rights of appeal when the grounds are of facts or mixed law and facts, by not retaining Section 233 (3) in the latest amendment to the Constitution. But then, those appeals are still coming to the Supreme Court as if that section has not been deleted. That subsection has been deleted.

“So, we have a situation whereby the National Assembly has actually intended that appeals on facts and mixed laws and fact, should end at the Court of Appeal by not reenacting that subsection but somehow, the Supreme Court is still entertaining appeals on those grounds. If they had eliminated those appeals, the dockets of the Supreme Court would have considerably been manageable. But it is not manageable.

“Mind you, we have all manner of appeals flying to the Supreme Court. From land matters to election matters, contracts, bank matters, oil and gas, criminal and civil, every manner of appeal is still flying to the Supreme Court,” he said.

With such development, the senior lawyer joined others in saying that the just increased number cannot perform the expected magic in the country’s judicial system.

“So, 20 Justices is still a far cry. I think that since we operate a presidential system operated by the United States and Canada, we ought to have had regional Supreme Courts or State Supreme Courts and then, some certain appeals will terminate at those regions.

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“Or, now that we have judicial divisions of the Court of Appeal just like the circuits in the United States of America, some appeals ought to terminate there. For instance, the U.S. Supreme Court does not take any kind of appeal.

“In fact, they exercise prerogative power. Except if it is a constitutional issue, they don’t take any appeal. Though the American system cannot actually be compared to ours but we ought to have done something close to that. Also, the justices of the Supreme Court are not young people. Most of them, if not all, are not less than 50 years old and then, the workload is too much. So, I will go for a situation whereby not all appeals will reach the Supreme Court. For instance, land matters.

“The principles on land matters have been stated and restated over and again. So, why bore the Supreme Court with appeals based on land matters? If such appeals terminate at the Court of Appeal, then the principles already enacted by the Supreme Court would be a sure guide for the termination of such appeals. Even contracts based on land matters, the principles are already stated. They are static. So why bother the Supreme Court with such matters again?” Hon SAN stated.

The senior advocate dismissed the allegation of laziness or lack of commitment to duty. In fact, he held that the justices, despite their age are very hard working but are only constrained by institutional conditions as well as constitutional provisions that ought to have cleared the way for them.

“I think it is not the numbers that matter but actually what goes to the Supreme Court that should be the first consideration. As analyzed above, all manner of appeals are flying to Supreme Court. So, even if we have 50 justices, they will still be overwhelmed and then to maintain 50 Supreme Court justices may cause problems because there may arise, some instances of conflict in decisions handed down. Therefore, for us to have a manageable situation, we should limit the number of cases of appeals reaching the Supreme Court,” Hon said.

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For another lawyer, Daniel D. Makolo, increasing the number of Supreme Court justices from 12 to 20 is a welcome development. He however wondered if the number was actually the cause of the delay in the delivery of justice administration in Nigeria, affirming that it wasn’t so. He rather stressed that the delay in justice administration and delivery through Supreme Court judgment has nothing much to do with their number but the clumsy nature of “Nigeria’s system.”

He added that: “Even if you double the statutory number of Supreme Court justices to 50, you are going to get crowded number of league of justices and allowances from the public funds and not justice derivatives. What we need to do to get quick response in justice administration is to overhaul the entire Supreme Court administration such that we concern them to constitutional issues and violations taking place with impunity and without qualms. Constitutional disregard is what is responsible for the insecurity in the nation and politics today.”

Makolo believed that Supreme Court justice administration should not have anything to do with matrimonial, chieftaincy or labour matters. According to him, all those matters should end at the regional Supreme Court for the federal Supreme Court to have lesser number of justices with particular concern for specialties and plurality in culture, ethnicity and religion with peculiar geographical features and aspirations.

He said: “Federal Supreme Court should be restricted to constitutional rights and obligations to ensure that everyone and everything or systems act according to the dictate of the prescription of the Constitution strictly.”

But for the Chairman, National Association of Judiciary Correspondents (NAJUC), Mr. Kayode Lawal, Nigerians should witness a new drive in justice dispensation with the recent increase in the number of justices. He believes that with the number, three election panels can sit simultaneously, while two constitutional matters can be sitting in different courtrooms as well. This, he said, will address the 3,000 case files, which the Chief Justice of Nigeria (CJN), Justice Tanko Mohammed, said was pending at the end of 2019/2020 legal year.

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Lawal said: “I think it is a straight forward matter. What we expect is quick dispensation of justice under the current CJN as we now have 20 justices on the Bench of Supreme Court. Before now, you will recall that the CJN cried out that the Supreme Court of Nigeria is over-worked and that it was handling the highest number of cases when compared with the Supreme Court of other nations in Africa. And the reasons are so clear, Nigerian politicians are so volatile and every stage of their political lives ends up in Supreme Court.

“Also, the amendment done to Section 285 of the 1999 Constitution has not helped matters for the judiciary. Under the new amendment, pre-election matters have to be filed within 14 days and the high court has only 180 days to finish the matter; the Court of Appeal has 60 days and the Supreme Court has 60 days as well. This has compounded the problems of the judiciary.

“But the new development is good for the litigants in the sense that we have three courtrooms in the Supreme Court. Conveniently, we can have three panels sitting simultaneously on political matters. It is only constitutional matters that require seven justices at the panel. We can have only two panels sitting over that. Otherwise, a minimum of five justices are required to sit at a panel if it is a political matter, meaning that we can have three panels sitting simultaneously.”

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