X-raying call by BOSAN for review of apex court appointment procedure

The Nigerian Supreme Court is the highest in the judicial hierarchy. It is empowered with original and appellate jurisdictions by the 1999 Constitution of Nigeria (as altered). Its decisions are final and cannot be appealed against unless there are omissions in its judgments or clerical errors, which is not considered an appeal that needs to be revisited.

Judicial appointments to the Supreme Court are therefore an important part of the administration of the civil and criminal justice system in Nigeria. Judicial officers and lawyers consider appointments to this Court as the peak of their careers.

The Supreme Court is a policy court and court of last instance. However, the Nigerian Supreme Court has been criticised for its appointment policy. For instance, the Body of Senior Advocates of Nigeria (BOSAN) had recently kicked against the appointment policy of Justices to the Supreme Court on the ground that the policy is unmeritorious.

The senior lawyers told the National Judicial Council (NJC), the body responsible for the appointment of judicial officers in the country to do away with the current replacement policy to grow alongside the rule of law and dispensation of justice.

In their strongly worded speech delivered at a Valedictory Court Service for retired Justice Abdu Aboki of the Supreme Court, the senior lawyers asked the NJC to also jettison the system whereby Justices of the Supreme Court must be promoted from the Court of Appeal. BOSAN’s speech delivered by Chief Onomigbo Okpoko (SAN), argued that the system is responsible for the level of mediocrity and incompetence in the judiciary.

“The Body of Senior Advocates takes the firm view that the selection and appointment of Justices for appointment to the Supreme Court and the Court of Appeal on the basis of replacement is one that cannot result in the appointment of the best lawyers into the appellate Courts in the country,” he said.

Stressing that the agitation for the review of the appointment procedure will not go away any time soon, Okpoko said: “Our submission to the appointing authorities is that the policy of replacement of the retiring Justices from their place of origin is not sound and should be discarded.

“The National Judicial Council as the appointing authority should address this issue and appoint the best candidates in our country to man our courts. After all, Justice is blind and so does not look at or see the faces of litigants.

“Justice knows no tribe and has no colour or religion. It has no specified location because it is everywhere. Let no one put on the Nigerian Judiciary the iron clad case of restricting the appointment of our Justices in the manner complained of,” he stated.

BOSAN, also urged the NJC to expand the appointment to include the Bar and academia, as there are well-qualified persons in that area. Okpoko, while stressing that the constitutional way of becoming a Justice of the Court of Appeal or the Supreme Court is by way of appointment and not promotion, listed former Justices of the apex court who did exceptionally well but were not initially judges.

“I met Justice Ephraim Akpata as a Chief Magistrate in Warri and have the fortune of appearing for the accused person in the last case Justice Akpata conducted as a Magistrate. You and I know that Justice Akpata made it to this Appeal Court from which he honourably retired. The issue of correct appointment of Judges is crucial,” he emphasised.

Some lawyers also agreed that the policy for appointment is not only discriminatory, but also unmeritorious. They argued that to fix the general gap of inefficiency in the judiciary, the process has to be reviewed to make it more merit-based, irrespective of having attained a position of appellate court justice.

Reacting to the issue, Douglas Terkura Pepe (SAN), said: “I think it is discriminatory for the appointment of Justices to the Supreme Court to be restricted to Court of Appeal Justices. The process must be opened up to include competent legal practitioners from the official and private Bar and academia.”

The lawyer said limiting the search to only Court of Appeal justices violates the Constitution, which has no such restriction. He added that competence, industry and character must be placed above the quota system. According to him, the quota system must only be applied after the competence of the nominee is ascertained, and not vice-versa.

A lawyer Akintayor Balogun also noted that for several years now, the appointment of Supreme Court Justices has been strictly from the Court of Appeal. He pointed out that despite several attempts by the NJC to recruit from the Bar, the system is yet to allow appointment of legal practitioners directly from the Bar into the Supreme Court.

For instance, in 2017, the Nigerian Bar Association (NBA) forwarded names of nine SANs for possible appointment as Justices of the Supreme Court. However, the list never saw the light of the day, as all appointments have been coming from the Court of Appeal. “Unfortunately, the situation is not being helped by the shrinking number of Justices at the Supreme Court,” he lamented.

He supported the position of BOSAN that the appointment of Justices of the Supreme Court should strictly be by appointment of merited judges, and not merely by promotion of unmerited judges rooted in bias.

“The Constitution, however, makes it clear on the appointment of this Justices and the same should be upheld in high esteem beyond the sentiments that run in the system. Section 231 (3) of the 1999 Constitution provides thus: (3) “A person shall not be qualified to hold the office of Chief Justice of Nigeria or a Justice of the Supreme Court, unless he is qualified to practice as a legal practitioner in Nigeria and has been so qualified for a period of not less than 15 years.”

According to him, the Constitution is the grundnorm, the supreme law of the land to which all other laws and legal norms (including constituted authorities) must conform. The Constitution, he said, is an instrument of government, embodying fundamental rules of any nation. It establishes and regulates the structure of a country, regulates the powers and functions of the government as well as states the rights and duties of individuals in a given society.

He said the Constitution regulates the relationship among the various arms of government and between government and the people. He added that it stipulates the procedure for administering the public affairs of a country and outlines modes of change of the government as well as procedure for constitutional amendment. “Where there is any inconsistency between the Constitution and such other law, that other law to the extent of its inconsistency shall be null and void and of no effect whatsoever. See Section 1 (3) of the 1999 Constitution (as amended in 2011),” he pointed out.

The lawyer argued that the provision of the Constitution on the method or procedure for the appointment of Justices of the Supreme Court is clear and unambiguous and should be given its ordinary meaning. In the case of A-G, ONDO STATE v. A-G, EKITI STATE (2001) 17 NWLR (Pt.743) 706 at 756, PARAS. D – E, Kutigi, J.S.C. (later C.J.N), he argued: “Any law, procedure, culture or legal tradition that restricts the appointment of Justices of the Supreme Court strictly from the Court of Appeal is inconsistent with the provision of the Constitution and same ought to be declared null and void and of no effect whatsoever.”

The legal practitioner, therefore, suggested the opening up of the appointment and allowing legal practitioners with formidable legal practice and strong and proven knowledge of law to be appointed as Justices of the Supreme Court, allow fresh blood to be injected into the system.

Another lawyer, Douglas Ogbankwa, Convener, Vanguard for the Independence of the Judiciary, said it is important to open up the space in the appointment of appellate courts to lawyers to have an eclectic mix of legal matrix that will dismantle some of the age-long technicalities and legal cobwebs that have stunted the legal system.

He said 70 per cent of Nigerian case laws dwell on needless technicalities that do not concern substantive issues that give investors and development partners the impression that we are an unserious country in doing substantial justice. He argued that opening up the judicial space in appellate courts, which are policy courts to practising lawyers will provide a new vista for transforming the legal system and advance trade and investment, foster development and advance the rule of law.