Supreme Court in need of boost for swift, trusted justice
Section 232 of the 1999 Constitution (as amended), as well as the Supreme Court Act of 2004, Section 3, Sub-Section 1, stipulate that the number of justices of the Supreme Court shall not exceed 21. That means that they should not be more than 21.
Going by the provisions of the Constitution, not minding that only 13 justices that are currently on the bench, the Supreme Court, without any ambiguity, is legitimately constituted to hear and determine any matter that is brought before it.
However, the exigencies of the Nigerian situation appear to have put the Supreme Court at the brink of suffocation, as the prevailing socio-political situations in the country has not only led to influx of civil and criminal litigations but also, numerous political cases emanating from a democratic structure whose its credibility and acceptance diminishes with every election.
Consequently, the legal burden of trying to determine various election petitions within the time frame stipulated by law only leaves the wise men with no option than to unceremoniously relegate numerous civil and criminal matters, some of which have spanned decades.
It is, therefore, the pains, deprivation and psychological trauma that accompany delayed justice, among other factors that have given impetus to the increasing demand for appointment of additional justices at both the Appeal Court and the Supreme Court.
Particularly, the Supreme Court in the wake of some of its judgments considered controversial by interested parties have attracted undue public attention to itself, almost to the point of denigrating the once-revered arm of government.
In fact, the January 14 apex court’s verdict against the Peoples Democratic Party and its candidate in Imo State, Emeka Ihedioha, as well as the February 13 judgment that sacked the candidate of the All Progressives Congress (APC) in Bayelsa State, David Lyon, left many Nigerians in doubt as to the ability of the 13 justices to diligently read the numerous, voluminous briefs in their dockets and come up with sound judgment.
While some have alleged that these two cases, particularly that of Imo State would have been better managed had the Supreme Court had the full complement of justices, they claim that the heavy workload on the justices, with its attendant physical and mental strain, was beginning to take a toll.
Unfortunately, while government hires and fires chief executives of agencies and parastatals, it treats judicial matters of urgent national interest with underserving indifference and complacency.
It would be recalled that the National Judicial Council (NJC), a body saddled with the responsibility of recommending appointment of judges and justices, had in October last year, recommended the appointment of Justice Adamu Jauro (North-East Zone); Justice Emmanuel A. Agim, (South-South Zone); Justice C. Oseji (South-South Zone), and Justice Helen M. Ogunwumiju, (South-West Zone) to the Supreme Court bench.
These justices have been on the Court of Appeal bench from where they were cleared to move up to the Supreme Court bench. But months after the recommendations were made, nothing has been heard since.
Even members of the House of Representatives recently joined in the call for the appointment of more justices to the Supreme Court.
The matter was considered so vital that it came through a motion, under matters of urgent public importance, by the Chairman, House Committee on Judiciary, Onofiok Luke.
Luke observed that the apex court was confronted with a plethora of cases, and that due to lack of the requisite number of justices, its adjudication was slow.
He added that the Supreme Court as the final court of the land with original and appellate jurisdiction over the entire country to adjudicate on disputes and controversies arising from any subject matter was faced with a huge responsibility of handling a high number of cases with a minimal number of justices.
While admitting that the Constitution prescribes a maximum of 21 justices for the apex court’s bench, the lawmaker, however, noted that the court in its history has never had a full complement of the prescribed justices.
He expressed the belief that the appointment of new justices would accelerate justice dispensation, expand the course of justice, and increase citizens’ access to justice.
An Abuja-based legal practitioner, Daniel Makolo, not only aligned himself with the position of the lawmaker, but also recalled the submission of the Minister of State for Niger Delta, Festus Keyamo SAN, during his screening at the National Assembly.
Keyamo had expressed concern on how to handle the heavy workload in the dockets of judges and justices.
Keyamo specifically expressed worries that considering the age of some of the justices, they should not be subjected to sitting for long hours.
Makolo, who wondered how justice would be seen to have been done in the country with the status quo, noted that the nation should transcend the constitutionally stipulated number if the current gap in justice dispensation is to be filled.
“If we want to get justice in our nation and make our justice system functional, and respond to the needs and yearnings of the people, we should even expand the number of Supreme Court justices beyond the stipulated 21.”
According to him, to continue to over-burden the few hands with a heavy workload is a recipe for miscarriage of justice.
His words: “It calls for miscarriage of justice. In the Supreme Court, if you file an appeal, you are going to get a date of three to five years and on the adjourned date, you are not sure that the matter would be heard, or be determined or even what becomes of the matter …, but injustice or miscarriage of justice.
“We all know that justice delayed is justice denied. In the Court of Appeal, matters of 2008, 2009 and 2010 are still pending. The dockets in the Court of Appeal are full. How then will there be justice? Commercial transactions that require one to three months are taking 30 years before a determination.
“So, we are the cause of our problems. We need to appoint more justices to the Supreme Court. For me, the 21 stipulated by law is not even enough, and to add insult to injury, they are just 13 now. That is very bad, especially when you consider the fact that most of them are over 60 years old. As a result, they hardly form a quorum except for political matters. Civil and criminal matters are left unattended to, which is a serious problem.”
Makolo, therefore, suggested that every geo-political zone should have a Supreme Court of its own. While the one in Abuja handles constitutional matters, other matters should end at the regional level because, “as it is now, constitutional matters are left unattended. The Constitution is being violated and people are being killed. Why then do we have a government or the Constitution if not to secure our lives and property? Go and challenge the government in court for failing in its responsibility, the matter will never get to an end. So, how do we hope to have a better society?
Another senior lawyer, who craved anonymity was more direct with his response.
He said: “This is not the first time that we are hearing of the need to jerk the number to 21, which is constitutionally allowed. The Constitution allows the maximum of 21, but in practice, the Supreme Court itself has never wanted to exceed 16. So, the agitation now to make it up to the constitutionally stipulated 21 is being given different meanings, by different people.
“But the clear implication of the depletion in number is that the work load is intense, and there is going to be another retirement by April. By the time that happens, the number of justices there would further deplete to 12.
A further implication of this depleting number is that the court cannot even have two panels sitting concurrently. “This is something former Chief Justice of Nigeria, Justice Mohammed Mahmud, tried to introduce to decongest the court.
“The truth is that the present situation has put so much pressure on the court, and it is our hope and prayer that the Presidency will act very quickly on those four justices who have been nominated and cleared from the Court of Appeal, waiting for the Presidency to give assent. If that is done, it will help to reduce pressure and stress from the justices that are presently serving. There is a need to sensitise the government to appoint more justices.
Human rights lawyer, Sam Amadi, believes that the heavy burden placed on the justices is traceable to the structure of the Supreme Court, even as he is of the view that, “the Nigerian system of appointing judges from the Court of Appeal to the Supreme Court is even strange.
“In the United States, you don’t have that number of justices. There are about nine justices of the Supreme Court because the work the US Supreme Court does is less than the work that the Nigerian Supreme Court does.
“The Nigerian Supreme Court saddles justices with greater responsibilities because of its flawed procedure and its failed jurisprudence. The Supreme Court continues to take cases they should not take, probably because the original interpretation of our constitutional provision has burdened the court.
“So, we have a Constitution that has spelled out in detail, the workings of the judicial arm, which is wrong compared to the American Constitution that bestows jurisdiction on the Supreme Court.
“What happened is that the Supreme Court has been denied some degree of control over its dockets that policy courts elsewhere have. It is burdened and that is why the failure to have a complete number looks like a big issue.”
According to Amadi, the situation is majorly a constitutional problem and that hinges on the fact that the Supreme Court is made to act like a retail court, accepting responsibilities it shouldn’t ordinarily accept if not for lack of decisiveness to throw away certain cases and shut doors to certain persons.
“But the constitution has spelled out in too much detail, what it should do. So, how can it escape? The right of appeal and all those provisions are unnecessary because they make it easy for everyone to come to the Supreme Court.
“The Supreme Court spends three months to look at a case only to discover that the case is useless and it shouldn’t have got to that level. And why does the Supreme Court take such cases? It is because the constitution has granted right to appeal, as of right, to different kinds of situations,” Amadi stated.
The second reason responsible for the depleting number of Supreme Court justices, Amadi said, is the fact that the vacancies and gaps grow over time.
He noted that even though it is constitutional to have less than 21 justices at the bench, there is, however, an urgent need for many more justices to allow for a multiplicity of panels dealing with different matters such as all these cases coming from states.
“The implication is that the Supreme Court needs to have multiple panels to decide these matters. If they have a full house, they would probably have more and more panels and the burden will reduce.”
But Amadi sees the need to focus more on structural forms of the Supreme Court as a major issue. For him, the issue with the dispensation of justice is more jurisprudential and procedural other than multiplying or regionalising the Supreme Court.
He said: “I think we need to scale back from stipulating by law or creating too many rights to go to the Supreme Court. The Supreme Court should be given the power to table what matters it takes and it should be based on coherent jurisprudence that focuses on cases and controversies that require the Supreme Court’s determination.
“Again, the Supreme Court is also suffering from the lack of tender capacity unlike in the US, where the court is a guarantor or the underwriter of constitutionalism. There, the Supreme Court has access to the smartest people working as interns, working as clerks. Most of the professors in the US or top lawyers in government in the US clerked at one time.
“Also, as people are graduating from universities with law degrees in the US system, they are already over familiar with cases. The method of learning cases matter, which means that students are kept through the cases and when these students who are first-class students go to be clerk to the judges, they are the ones who are responsible for helping the judges. Even though those judges in the US are also first-class judges, they are now coupled with first-class brains helping them sight policy decisions in the various cases that they encounter,” he stated.
Amadi added: “Here in Nigeria, the judges themselves are not very smart; not really brilliant; then they are saddled with very unintelligent backroom staff in terms of registrars and so on. There is a lack of digital and technical support and brainpower is very low. It means that the Supreme Court will underperform. Even if you back it up with 22 justices, that is not going to bring the real reform.
“The real reform has to do with revamping the jurisprudence and procedure for the Supreme Court, and allowing it to be a court, which justices take full control of the proceedings, and not allow litigants to flood the court with frivolous cases.”
In trying to find a lasting solution to heavy work load and sluggish dispensation, former Chief Justice of Nigeria, Justice Walter Onnoghen, had written to the Nigeria Bar Association (NBA), requesting it to nominate eligible members of the Bar for consideration into the Supreme Court bench.
This call was said to have received prompt attention as the body quickly forwarded names of nine eligible Senior Advocates of Nigeria to him for appointment as justices of the Supreme Court.
They include the former President of NBA, Dr. Olisa Agbakoba; Anthony Ikemefuna Idigbe; Yunus U. Usman; Babatunde Fagbohunlu; Miannaya Aja Essien; Awa Uma Kalu; Prof. Awalu Hamish Yadudu; Tajudeen Oladoja, and Ayuba Giwa.
These candidates were short-listed from a total of 89 expressions of interest, but till now, nothing much has been heard about their appointment. Perhaps, the continued silence is not unconnected to the protest organised shortly after they were shortlisted by a group of lawyers, who kicked against their nominations, alleging that it did not follow due process
Regardless of the controversies that surrounded that move, Amadi believes that many Nigerians commended the initiative.
According to him, in the past, some very senior, and erudite private practitioners were appointed directly from their private practices to the Supreme Court bench, “so, when the CJN then announced that process and the NJC approved it, we saw that senior lawyers like Olisa Agbakoba and Awa Kalu indicated interest and had applied.
“We know that there was a push back by career judges. The problem of promotion from the Court of Appeal to the Supreme Court was that there are some elements of the boys’ brigade, a kind of the boys club.
“Judges from the high court have the expectations to go to the Court of Appeal and those at the Appeal Court also have the expectation of going to the Supreme Court. And when judges go through the ranks, from the entry court, such as the current CJN, from the Sharia Court to the Supreme Court, they feel a sense of obligation to their brother judges at the lower bench to give them career paths to the Supreme Court. So, that is probably what is stopping that innovative initiative from taking place,” Amadi stated.
However, the position of the Constitution in such matters is that whosoever aspires to be appointed into the Supreme Court bench “must be a legal practitioner of not less than 15 years. The same applies to whoever is to be appointed as the Chief Justice of Nigeria.
Also, Section 231 subsection (3) of the 1999 Constitution (as amended) distinctly states that: “A person shall not be qualified to hold the office of Chief Justice of Nigeria, or of 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.”
From the provisions of the Constitution, it is glaring that the candidates were also ‘eminently’ qualified to be appointed directly from their private practices to the apex court bench.
“There is this belief that those outsiders don’t belong. I will guess that we are witnessing a push back from the institutional force of the judiciary, who are trying to keep the job for their colleagues, who have also paid their dues and gone through the hardship of judging at the lower bench,” Amadi held.
According to him, some hold the opinion that a judge appointed straight from private practice may not be conversant with judicial crafts in that sense like a judge who has come from the magistrate court to the high court, to the Court of Appeal and finally to the Supreme Court.
“That is a possibility, but the question is, how about erudition? Does erudition necessarily go with being on the bench? Well, you can argue that; maybe some good judges who grow through the bench will acquire what we call judicial temper. All things being equal, a judge who has gone through the process will acquire more judicial temper than a judge who is coming as an academic or a private practitioner. That is the social grace of being a judge – the way they comport themselves and the way they smile. But erudition is about knowing the law and applying it to cases.”
Amadi added that understanding the jurisprudence of law is not a monopoly of judges who have been sitting in the judicial craft. That is why at the level of the appellate court and the Supreme Court, judicial activities become more intellectual, jurisprudential and policy-oriented. So, judges at the Supreme Court hierarchy are not going to be listening to evidence.
“Therefore, those judicial crafts and distinguishing traits you see at the lower bench may not be required. It does not mean that a new entrant into the bench will not have to learn the rope somehow in terms of judicial norms, but it means that you are also adding a judicial value of somebody who has the intellectual capacity and who probably have a better understanding and brilliance than somebody in the bench.
“For example, private practitioners who have established themselves in certain areas of practice such as public law experts, maritime experts, social and administrative law experts, when they come to the bench, they come with some specialisations that might not be available to a career judge. You will then have much law when you have people from private practice to the appellate court”, Amadi stated.”
Whether the justices are appointed from within the court or among private practicing lawyers, the fact remains that the situation at hand urgently calls for additional hands at the Supreme Court bench to address the problem of slow justice dispensation.
Stakeholders are also watching the Constitution Amendment Committee of the Senate to see how cleverly the issue would be handled in the amended constitution. But while the constitution amendment continues in the pipeline, some Nigerians are yearning for a doctrine of necessity in the Nigerian judicial sector as a way of restoring the confidence reposed in the judiciary by the Constitution.
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