The recent exit of Abdu Aboki in August 2022 and following the exit of three justices earlier this year has brought the number of Supreme Court Justices from the constitutional ceiling of twenty-one to thirteen. This will surely spell danger for the justice delivery system.
The law prescribes for a maximum of twenty-one Justices of the Supreme Court in Nigeria; however, the numbers continue to dwindle. During the valedictory session held for Hon Justice Abdu Aboki, the most recent Justice to retire from the Supreme Court in September 2022, Kayode Ariwoola, the acting Chief Justice of Nigeria complained that his exit had “drastically depleted” the number of justices in the apex court.
The status quo
When the year began, there were seventeen justices of the Supreme court. Justice Mary Peter-Odili and Justice Ejembi Eko retired on May 13 and May 23, respectively. The former Chief Justice of Nigeria, Tanko Muhammad resigned on June 27.
The last appointment of Justices of the Supreme Court was done in 2020. Prior to 2020, there were only twelve justices until eight new judges were appointed. However, in less than two years, the Supreme Court is back to its pre-2020 state. Other exits by the members of the apex court are Justice Sylvester Ngwuta who died on March 7, 2021, Justice Olabide Rhodes-Vivour retired later that month, while Justice Samuel Oseji died in September 2021.
Before his sudden resignation in August 2022, Tanko Muhammad, the former CJN had, in a letter addressed to all judicial officers in Nigeria in January 2022, called for nominations for judges to be appointed as supreme court justices. However, it is unknown how far this process went as until now, no appointment has been made.
In the letter, the former CJN stated that in making submissions for eligible candidates’ judicial officers must put forward “ten judgements delivered in contested cases two years preceding the date of nomination in the case of judicial officers and ten judgements obtained in contested cases five years preceding the date of nomination in the case of legal practitioners in private practice, certified by competent authorities
With three more justices set to retire within two years, the number of judges may reduce to ten except more appointments are made. The 13 justices remaining in the Supreme Court are justices Kayode Ariwoola who is to retire on August 22, 2024; Musa Dajitto Muhammad set to retire on October 23, 2023, Kudirat Kekere-Ekun retire on May 7, 2028, John Inyang Okoro to retire July 11, 2029; Chima Centus Nweze to retire from service on September 25, 2028; Amina Adamu Augie due to retire September 3, 2023. Others are Uwana Abba Aji, due for retirement on November 7, 2026; Lawal Garba, set to retire on November 11, 2027, Ibrahim Mohammed Saulawa to retire on September 29, 2026, Adamu Jauro on June 26, 2029; Tijani Abubakar, April 15, 2030, and Emmanuel Agim, on April 26, 2030.
Appointment of judges and composition of court
The 1999 Constitution vests judicial powers of the federation in the courts. Section 6 of the 1999 Constitution provides that “the judicial powers of the Federation shall be vested in the courts to which this section relates, being courts of the established for the Federation”. These courts by virtue of Section 6 (5) are the Supreme Court, the Court of Appeal, the Federal High Court, High Court of the Federal Capital Territory, High Court of States, Sharia Court of Appeal of States and the Federal Capital Territory, Customary Court of Appeal of States and the Federal Capital Territory, and so on.
The Constitution makes the Supreme Court the apex court in Nigeria. Section 235 of the 1999 Constitution provides for the finality of the judgements of the Supreme Court. It provides “without prejudice to the powers of the President or of the Governor of a State with respect to the prerogative of mercy, no appeal shall lie to any other body or person from any determination of the Supreme Court”.
The Constitution in Section 231 (1) and (2) provides that the appointment of Justices to the Supreme Court rests with the President of the Federal Republic of Nigeria on the recommendation of the National Judicial Council. This appointment is subject to confirmation by the Senate. Also, a person is only qualified to be a justice of the court if 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.
The Constitution also provides for the composition of the court and for the persons eligible for appointment into the court. Section 230 (2) of the 1999 Constitution provides that the Supreme Court shall consist of the Chief Justice of Nigeria and such number of Justices not exceeding twenty-one, as may be prescribed by an Act of the National Assembly. To be properly constituted in the hearing of any case, the court shall consist of not less than five Justices of the Supreme. However, the Supreme Court is only duly constituted when there are seven justices in any case where it exercises its original jurisdiction and where the nature of a case affects the fundamental rights of any person.
Causes, impact and potential solutions
Before one can purposely look at the need for appointments in the supreme court, it is important to look at what has caused the great attrition in the supreme court that has caused for a constant reduction in the number of judges. Although retirement and resignation are reasons for which a judicial officer may leave active service, more often than not, justices of the supreme court have been forced to leave office as a result of ill health that have most times resulted in death.
BusinessDay report shows that between the beginning of the pandemic in 2020 and now, more than a dozen Nigerian Judges & Ex Judges have passed on. The incidents seemed to come at an alarmingly consistent pace, it appeared that at least every other month another passing or serious health complication was announced. The average age of a Judge from the High court to the Supreme Court is over 50 which already puts them in a vulnerable age bracket.
To give more light to this, records show that since one can readily point to 2002, Godfrey Achike who died in 2003 after suffering from a stroke, which forced him ultimately to take early retirement. Over the next three years, seven justices left the supreme court. Of these, Ekundayo Ogundare, Chukwudinka Pats-Acholonu died in 2003 and 2006. Anthony Iguh and Obioma Ogwuegbu were hospitalised for critical illnesses shortly before retirement. Even recently, of the departures from the supreme court since 2019, at least four have been premature. Two justices, Sylvester Ngwuta and Samuel Oseji both died in 2021 at age sixty-nine and sixty-seven respectively, before retirement.
The deteriorating state of the welfare of the supreme court was made evident in the letter signed by Justices of the Supreme Court in June 2022, it was the Justices of the Supreme Court had written to the then CJN complaining of the depleting failures of the health and well-being of the Justices, including poor housing facilities and electricity supply, non-provision of internet services and research assistants. In their letter, the Justices lamented that the standard of healthcare in the court had deteriorated to the point where “there is a general lack of concern for Justices who require immediate or emergency medical intervention”.
If the health and welfare of judges are taken care of, it will reduce the constant need for the appointment of judges to the supreme court.
In 2021, the then Chief Registrar of the Supreme Court, Hadizatu Uwani Mustapha, revealed that between 2007-2019 alone, the Supreme Court had about ten thousand appeals pending. The former Chief Registrar referred to the fact that if certain reforms were made along with a full complement of the Justices of the Court, that is, twenty-one Honourable Justices, the Court will be able to dispense quick, efficient and effective justice.
Based on the constitutional provision on the composition of courts enumerated above, a court must have a minimum of 7 judges to validly attend to any matter that comes to its notice whether of original or appellate jurisdiction. Utilising the caseload from 2007 – 2019, assuming that no case was resolved and none added, each appellate set of 5 judges was assigned to a minimum of 3,300 cases, with some judges having more.
With cases staying up to ten years in the Supreme Court, it is safe to say that the Supreme Court has been greatly sapped of energy with little or no recharging source in sight.
While the delay in the appointment of judges to the apex court is not readily identifiable, Afe Babalola SAN in his 2021 article “Appointment, Promotion and Remuneration of Judges in Nigeria: A need for Change” opines that the procedure for appointment of judicial officers of the Supreme Court is quite herculean and ineffectual as it still allows some level of political involvement.
The 1963 Constitution procedure for appointment of Justices of the Supreme Court was appointed by the President acting on the advice or recommendation of the Prime Minister. Afe Babalola records that although the procedure seemed simple, it was yet effective and notorious for producing the most qualified and best-suited judges on the Bench. There was no recourse to political affiliations, nepotism or favouritism in the appointment of judges. Appointments to the Bench were done by invitation. Sitting judges identified legal practitioners who possessed sterling qualities suitable for appointment to the Bench.
The new procedure by the 1999 Constitution states that the Justices of the Supreme Court are to be appointed by the President on recommendation by the National Judicial Council subject to confirmation by the Senate. This system makes both the legislative and executive arms of government a significant part of the appointment process for supreme court judges.
This undoubtedly encourages the politicisation of the appointment process. The system is effectively now politically inclined as politically elected officers are at the helm of these appointments. The whole process is now easily manipulated to suit the will of the political class.
In comparison, in some states in the United States, judges are elected by the electorate. In Pennsylvania, for instance, state-wide elections were held in 2021 to elect judges into office rather than being selected on merit by the judicial commission, by the governor or the legislature.
In the United Kingdom, members of the King’s counsel may be appointed as judicial officers. The members of the King’s Counsel can be likened to the Senior Advocates of Nigeria who are the most senior attorneys in law and are experts in the legal field.
Conclusion
The role of the judiciary in any justice system is not a trifling one. The court remains an indispensable institution in the administration of the justice system. According to American Lawyer, Alan Dershowitz, “Judges are the weakest link in our system of justice”. Indeed, the strength of judges signifies strength in the justice system. Where certain factors work against this strength, it will only spell ruin for the judicial system. One can only hope that the appointment process will be done speedily to ensure that cases are not delayed and that the welfare of judges, a cornerstone of our judicial system and democracy, is preserved.
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