SUNDAY EJIKE and LANRE ADEWOLE consider issues around the ongoing attempts to tackle the depletion of the apex court bench.
Among the several issues raised by a recently-retired Supreme Court Justice and erstwhile vice chairman of the National Judicial Council (NJC), Justice Musa Dattijo Muhammad, during his extraordinary valedictory session of October 27, this year, was the historic depletion of the apex court to 10 justices, out of the maximum 21, allowed by the operational 1999 Constitution.
While stopping short of directly alleging sabotage for political reasons, then-second most senior judicial officer in the country, raised a lot of posers and concerns on the delay in replacing dead and retired justices of the court, especially as it affects two major geo-political zones of North Central and South East.
Dattijo, who chaired the appointment committee of the NJC by virtue of being the Council’s vice chairman, queried the non-completion of his committee’s work by the system leadership, considering that justices of the Court of Appeal, from different geo-political zones, especially the two, with zero representation on the bench, had been shortlisted by his committee.
Directly accusing “his boss” and the Chief Justice of Nigeria, Justice Kayode Ariwoola of using his power to stall the appointment process, he said, “It is evident that the decision not to fill the vacancies in the court is deliberate. It is all about the absolute powers vested in the office of the Chief Justice of Nigeria (CJN) and the responsible exercise of same”.
Doubling down on his claim that the delay that led to the historic depletion was all about the recently-concluded and litigated presidential election, which went in favour of President Bola Tinubu, both at the ballot and the courtroom, Dattijo pointed out that, “to ensure justice and transparency in presidential appeals from the lower court, all geopolitical zones are required to participate in the hearing.
“It is therefore dangerous for democracy and equity for two entire regions to be left out in the decisions that will affect the generality of Nigerians. This is not what our laws envisaged”.
Taking up the battle of the South East, alongside his geo-political zone’s, the Niger-born jurist said that, “with the passing away of Justice Chima Centus Nweze on July 29, 2023, the South East no longer has any presence at the Supreme Court, neither has there been any appointment to fill the vacuum created by the death of Justice Sylvester Ngwuta, on July 7, 2021.”
While observing that no one expected the sudden death of Justice Nweze, Dattijo lamented that, “it has been two years and seven months since the previous justice from the South East died and no appointment of replacement was made”.
On the fate of his zone, with his retirement, he pointed out the North Central would also suffer the same fate as the South East, since no replacement was made for the region two years ago following the retirement of Justice Ejembi Eko and Justice Sidi Bage.
“Also, it was clear ab-initio that I will be leaving the court this day on attaining the statutory age of 70. It is then not in doubt that there has been sufficient time for suitable replacements to have been appointed. This is yet to occur”, he lamented.
Supreme Court scramble
Despite the angst in the Judiciary on how Dattijo conducted his open protest, his outburst appears to have revved up the allegedly stalled appointment process.
The Jury has exclusively reported the scheduled meeting of the Federal Judicial Service Commission (FJSC) for this week, to nominate justices of the Court of Appeal, to the apex court.
The National Judicial Council (NJC) has also scheduled a meeting for next week, to consider the nominees of the FJSC and make final recommendation to the President, who is the appointing authority for federal judicial appointments.
Justice Ariwoola is the chairman of both bodies and he is expected to have a huge say on those who would make the final cut, among the shortlisted justices of the Court of Appeal.
Many critics have slammed the process as a one-man show, saying it is pretty much the CJN as the chair of FJSC, nominating to himself as chair of NJC.
Dattijo alluded to this perceived anathema.
According to him, a situation where the CJN has absolute powers over the National Judicial Council (NJC), Federal Judicial Service Commission (FJSC), National Judicial Institute (NJI), the Legal Practitioners Privileges Committee (LPPC), that appoints Senior Advocate of Nigeria, can only lead to corruption.
“As chair of the NJC, FJSC, NJI and LPPC, appointments as council, board and committee members are at his pleasure. He neither confers with fellow justices nor seeks their counsel or input on any matter related to these bodies.
“He has both the final and the only say. The CJN has power to appoint 80 percent of members of the council and 60 percent of members of FJSC. The same applies to NJI and LPPC.
“Such enormous powers are effortlessly abused. This needs to change. Continued denial of the existence of this threatening anomaly weakens effective judicial oversight in the country “, he said.
While Dattijo is substantially correct about the all-inclusive power of the CJN and the latitude granted the occupier of the office by the constitution on matters of appointment, it is not totally correct that the power can’t be challenged or overruled by the majority of each of the components making up the system.
A well-documented situation when a Chief Justice of Nigeria was overruled, was during the reign of the first female CJN, Aloma Miriam Mukhtar. At the meeting of the FJSC where now-retired Justice Zainab Bulkachuwa was nominated as the substantive President of the Court of Appeal, the CJN made her case against the appointment, and asked that her objection be documented in black and white, after then-Attorney General of the Federation and Minister of Justice, Mohammed Adoke, SAN, a statutory member of the Commission, led the majority of the gathering to counter Mukhtar.
The CJN had her say, but the Adoke majority had its way. That was in 2014.
Still out-of-bounds
In the recent history of the apex court, successive leaderships have deliberately made the bench out-of-bounds to “outsiders”, meaning anyone, not from the Court of Appeal, as a way of preserving the succession-by-seniority arrangement which has given the court, some leadership stability, in the last three decades, though the arrangement hasn’t completely eliminated struggle for the top-job, on account of seniority at the court of appeal before elevation to the apex court.
The closest to “outsiders” literally breaching the impregnable walls of appointment to the apex court, in recent time, was the effort by then Ag. CJN, Walter Onnoghen, to facilitate the appointment of some senior lawyers, straight from the inner bar to the apex bench.
He had written to the Nigerian Bar Association (NBA) among other relevant judicial officers and heads of courts, to put forward their best for then-six existing vacancies.
President of the Bar at the time, Abubakar Mahmoud (SAN) subsequently, in February 2017, forwarded the names of a former President of NBA, Olisa Agbakoba (SAN), Anthony Ikemefuna Idigbe (SAN), Yunus Ustas Usman (SAN), Babatunde Fagbohunlu (SAN), Miannaya Aja Essien (SAN), Awa Uma Kalu (SAN), Professor Awalu Hamish Yadudu, Tajudeen Oladoja and Ayuba Giwa, to Onnoghen.
Despite the intention of Onnoghen, none of the Bar representatives made the final cut to the apex court.
The leadership of Ariwoola seems to have continued in the tradition of solely considering justices of the Court of Appeal, for elevation, to the Supreme Court.
Already, the shortlist sighted by The Jury, has only justices of the penultimate court, with 11 justices shortlisted for the three slots in the North Central column.
They are; Justices Jummai Sankey, Joseph S. Ikyegh, Stephen Jonah Adah, Amina Audi Wambai, Ridwan Abdullahi, Patricia Ajuma Mahmoud, Folasade Ayodeji Ojo, James Gambo Abundaga, Mohammed Baba Idris, Mohammed Danjuma and Muhammad Ibrahim Sirajo.
Though The Jury is yet to confirm, appeal court justices also reportedly filled up other zonal shortlist.
Explaining why appointment of lawyers to the Supreme Court Bench has not been possible in the country, the CJN, represented by Justice John Inyang Okoro, a Justice of the Supreme Court, at a technical session of a justice summit in January in Abuja, said, the appointment of judicial officers used to be a secretive exercise owing to the judiciary’s conservative nature.
He said, “Outstanding lawyers used to be approached by Judges for appointment to the Bench, with most of them turning down such offers. However, these days, the process of appointment of judges has become so competitive. If there are vacancies for appointment on the Bench, there are judges who are already in the system. So, how do you go outside fishing for people (lawyers) to come in?”
It was also gathered that opposition to the appointment of lawyers directly to the Supreme Court bench has come mainly from judges, who reportedly see it as a threat to their career progression. The Justices of the appellate Court are said to be sustaining an objection to such an appointment, contending that, it would stand against them getting to the top of their carreer.
Those who argue in favour of appointing Supreme Court justices directly from the Bar, contend that it will broaden the diversity of thoughts and experience much needed by the court.
To be eligible for appointment to the Bench of the Supreme Court, an applicant must be a legal practitioner of not less than 15 years. Such a person worthy for such appointment, according to NJC Rule, must be of good character and upright in conduct.
The 1999 Constitution of Nigeria 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 practise as a legal practitioner in Nigeria and has been so qualified for a period of not less than fifteen years.”
A Justice of the Supreme Court now has to be appointed by the President on the recommendation of the NJC, subject to the confirmation of such appointment by the Senate.
Compromised process?
One of the harshest criticisms the Judiciary has faced for quite a while is the alleged favoritism, cronyism and outright nepotism that have reportedly governed its appointment process. Even the apex court, hasn’t been spared, though much of the criticism has been directed at the lower courts, including the Court of Appeal.
Dattijo, in his now-famous tension-soaked valedictory, lambasted the Justice Monica Dongbam-Mensem leadership of the Court of Appeal, for compromised entry point to the penultimate court.
He said, “It is asserted that the process of appointment to judicial positions are deliberately conducted to give undue advantage to the children, spouses and mistresses of serving and retired judges and managers of judicial offices.
“At the Court of Appeal, it is asserted; presiding justices are now being appointed out of turn. And there is the further issue of the unpredictable nature of recent decisions of the courts as well”.
The outspoken jurist was obviously referencing the recent elevation to the penultimate court, of the son-in-law to the President of the Court, even while the wife, who is Dongbam-Mensem’s daughter, is also a judge.
A senior operative of the Court lambasted Dattijo and other critics of the controversial elevation of the PCA’s son-in-law, querying if his career progression to the Court of Appeal, should be stalled because his mother-in-law, is the PCA.
Frustrated by the criticisms from every corner, the senior staff dared and demanded a public hearing, to have a lot of accusations being thrown at the judiciary, sorted.
The CJN, Justice Olukayode Ariwoola told the audience at the valedictory session that the Supreme Court is now having the lowest number of Justices in its history, assuring that efforts are on top gear to elevate more Justices to the Bench.
“With Justices Musa Dattijo leaving us today after the retirement of Hon. Justice Adamu Amina Augie a few weeks ago, we are now left with just 10 Justices on the Supreme Court Bench; being the lowest we have ever had in contemporary history of the Court.
“However, I can confidently assure all the litigant public that efforts are in top gear to get on board a sizeable number of Justices to boost our rank and complement the tremendous effort we have been investing in the business of the Court.
The remaining Justices of the Supreme Court, are Justice Olukayode (CJN), Justices Kudirat Kekere-Ekun, Uwani Musa Abba Aji, John Inyang Okoro, Lawal Garba, Helen Ogunwumiju, Ibrahim Saulawa, Adamu Jauro, Tijjani Abubakar and Justice Emmanuel Agim.
Lawyers speak
Apart from litigants who are worried about the delay in the justice delivery system , due to the few numbers of justices on apex court bench, lawyers are also worried.
Some of the lawyers who spoke to The Jury and did not want their names in print said, the depleted number of Supreme Court justices is due to systemic failure and deliberate act, by some people who benefit from the situation.
A lawyer told The Jury that the situation is worse as some lawyers now lobby for their cases to be listed for hearing at the Supreme Court.
“Some lawyers, especially those who are aspiring for the prestigious rank of Senior Advocate of Nigeria (SAN) and needed Supreme Court cases to meet the requirements for the conferment by the Legal Practitioners Privilege Committee (LPPC) pay for their cases to be listed.”
His claim can’t be independently verified.
The lawyer further claimed, “That is why you see 2017 cases still pending before the Supreme Court till now. You cannot see this kind of situation in the United States of America, because they plan ahead unlike Nigeria.”
He counseled that, arrangements ought to be on ground for replacement of any Justice whose retirement is near, to avoid vacant positions at the apex court.
A Senior lawyer, Dr. Samson Osagie, who is the Chairman of the Nigerian forum of the African Bar Association, while commenting on the issue said, the depleting number of the Supreme Court Justices has a lot of implications for the administration of justice because, the constitution recognizes that the number of Supreme Court Justices at any time shall be 21.
He however said the depletion does not affect the constitutionality of the decisions coming out of the apex court, because, at any point in time, not less that five Justices must sit on a particular appeal.
Osagie said, appropriate machineries must be put in motion to make sure that more Justices are appointed to the Supreme Court bench adding that, the numbers are not enough, while recalling a recent effort by the National Assembly, to increase the number.
He said, “The other way to look at it, is to also look at a constitutional amendment that seeks to limit certain cases to stop at the Court of Appeal or, alternatively, has Supreme Court at the regional level to decongest the docket of the Supreme Court, so that all manner of cases do not go the the Supreme Court.
“How many cases go to the Supreme Court of America? Very few. The cases that go to the Supreme Court of Nigeria must be such cases that border on issues of constitutional interpretations of legislations made by the National Assembly, bordering on currency, bordering on immigration and sorts, bordering on important national matters that concern the entire federation.
“I believe that, these are some of the steps that should be taken in order to decongest the docket of the Supreme Court and then, ensure speedy dispensation of matters that come before the Supreme Court.”
On appointment of Justices to the Supreme Court from the Bar, Dr. Osagie said, nothing is wrong with the idea, adding that, “after all, it is from the Bar that the Bench emerges. The Bench is not standing on its own. Whatever means can be used to get capable hands to the top echelon of the judiciary, I advocate for it.
“There are so many senior lawyers who are experienced that could serve very well as Supreme Court Justices. There is nothing wrong if that happens.
“I know that a few advertisements have been made in the past into it and I know that, what is holding the process from seeing the light of the day may be what I will regard as politics and it is very unnecessary”, he maintained.
Another lawyer, Nnaemeka Ejiofor said, the depleted number of justices on the Bench of the apex court has always been a negative thing, not only on the Supreme Court, but of any court.
He said, “We have a population of over 200 million Nigerians and you have less than 20 Justices of the Supreme Court to hear or listen to their matters. You will find a situation where cases linger at the Supreme Court for over ten years without a single hearing and we know that justice delayed, is justice denied.
“When we have very few numbers of Justices at the Supreme Court or indeed any other court, it affects the judiciary and the people of the country very negatively. It delays the course of justice.
“It causes injustice so that perpetrators of evil can joyfully ask you to go to court because they know that it will take time for your matter to be decided and while your matter is being decided, they are busy enjoying the fruits of their illegalities.
“The depleted number of Justices at the apex court affects everything called judiciary in the country. Most unfortunate thing now in the apex court is that, no single South Easterner, no single Igbo man is a Justice in the Supreme Court as of today, as we speak.
“We have three major languages in Nigeria, the Hausas, the Igbos and the Yorubas. All the others are well represented but, unfortunately for the Igbos, there is no single human being representing us at the apex court of the country.
“People on their own do what they want to do. The Igbos, for instance are completely out of the judiciary. They do not have the sufficient numbers, even in the high court of the FCT.
“For over 200 million citizens of this country, you are having less than 20 Justices at the Supreme Court. By law, this is a federal government, this is a federal nation, by law, every single state should have its own state judiciary so that, the only thing that goes to the federal judiciary or the federal Supreme Court should be just issues that have to do with constitutional interpretations.
“But, where you have people who fight for chieftaincy titles in their villages go to the Supreme Court for adjudication, you cannot get that government touch because you are dealing with persons who are fully conversant with those traditions as it is.
“I advocate that every state of the federation should have a Supreme Court that deals with every matter concerning state laws so that anything concerning the interpretations of the constitution should go to the federal Supreme Court finally because, the constitution deals with everybody in Nigeria at the same time and the Justices of the Supreme Court ought to have it at their finger tips”, he said.
Ejiofor said, where it comes to state issues, Local Government Areas, there should be a state Supreme Court to handle such matters, adding that, in this way, the docket of the apex court at the federal level will be decongested.
“The few number of Justices is affecting the justice system adversely, it is delaying the course of justice negatively, it is not producing the required results.
“You cannot continue to do business in Nigeria when you know that their judiciary will take years to determine your matter. For instance, in business transactions where time is of essence and you need to go to the Supreme Court, you can imagine when your case is kept aside for five years because there are backlog of cases. It costs us money, it affects the economy, it affects everything”, he explained.
YOU SHOULD NOT MISS THESE HEADLINES FROM NIGERIAN TRIBUNE
Nigeria has highest cement price in the world — Producers
FOR about 10 years now, Nigeria has remained the country with the highest cement price in the world, national chairman, Cement Producers Association of…
Kogi: INEC to hold fresh elections in 59 polling units Nov 18
The Independent National Electoral Commission (INEC) has disclosed its intention to conduct fresh elections in…
Twins who graduated First Class in UNILORIN say school separated them during exams
Taiwo Hassanah Subair and Kehinde Aishah Subair are identical twin sisters and First Class graduates of…
FULL LIST: ‘Shanty Town’, ‘Herdsmen’, ‘Underbelly’ top BON Awards nomination
Best of Nollywood Awards has officially released nominations lists and categories for the 2023 Nollywood award ceremony. Stylised as…
Helen Paul and other bastardy stories
Everyone has a history; how you act and tell your story defines you. Ace comedian and celebrity, Helen Paul, trended wildly last…
Nigeria will host befitting African Canoe Sprint Championship — Porbeni
President Nigeria Rowing, Canoeing and Sailing Federation (NRCSF), Rear Admiral Festus Porbeni (rtd) has…
